1911 Encyclopædia Britannica/Veto

From Wikisource
Jump to navigation Jump to search

VETO (Lat. for “I forbid”), generally the right of preventing any act, or its actual prohibition; in public law, the constitutional right of the competent authority, or in republics of the whole people in their primary assembly, to protest against a legislative or administrative act, and to prevent wholly, or for the time being, the validation or execution of the same.

It is generally stated that this right was called into existence in the Roman republic by the tribunicia potestas, because by this authority decisions of the senate, and of the consuls and other magistrates, could be declared inoperative. Such a statement must, however, be qualified by reference to the facts that interdico, interdicimus were the expressions used, and, in general, that in ancient Rome every holder of a magistracy would check a negotiation set on foot by a colleague, his equal in rank, by his opposition and intervention. This was a consequence of the position that each of the colleagues possessed the whole power of the magistracy, and this right of intervention must have come into existence with the introduction of colleagued authorities, i.e. with the commencement of the republic. In the Roman magistracy a twofold power must be distinguished: the positive management of the affairs of the state entrusted to each individual, and the power of restraining the acts of magistrates of equal or inferior rank by his protest. As the tribuni plebis possessed this latter negative competence to a great extent, it is customary to attribute to them the origin of the veto.

In the former kingdom of Poland the precedent first set in 1652 was established by law as a constant right, that in the imperial diet a single deputy by his protest “Nie pozwalam,” i.e. “I do not permit it,” could invalidate the decision sanctioned by the other members. The king of France received the right of a suspensory veto at the commencement of the French Revolution, from the National Assembly sitting at Versailles in 1789, with regard to the decrees of the latter, which was only to be valid for the time being against the decisions come to and during the following National Assembly, but during the period of the third session it was to lose its power if the Assembly persisted in its resolution. By this means it was endeavoured to diminish the odium of the measure; but, as is well known, the monarchy was soon afterwards entirely abolished. Similarly the Spanish Constitution of 1812 prescribed that the king might twice refuse his sanction to bills laid twice before him by two sessions of the cortes, but if the third session repeated the same he could no longer exercise the power of veto. The same was the case in the Norwegian Constitution of 1814.

In the French republic the president has no veto strictly so called, but he has a power somewhat resembling it. He can, when a bill has passed both Chambers, by a message to them, refer it back for further deliberation. The king or queen of England has the right to withhold sanction from a bill passed by both houses of parliament. This royal prerogative has not been exercised since 1692 and may now be considered obsolete. The governor of an English colony with a representative legislature has the power of veto against a bill passed by the legislative body of a colony. In this case the bill is finally lost, just as a bill would be which had been rejected by the colonial council, or as a bill passed by the English houses of parliament would be if the crown were to exert the prerogative of refusing the royal assent. The governor may, however, without refusing his assent, reserve the bill for the consideration of the crown. In that case the bill does not come into force until it has either actually or constructively received the royal assent, which is in effect the assent of the English ministry, and therefore indirectly of the imperial parliament. Thus the colonial liberty of legislation is made legally reconcilable with imperial sovereignty, and conflicts between colonial and imperial laws are prevented.[1]

The constitution of the United States of America contains in art. i ., sect. 7, par 2, the following order:—

“Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, if not, he shall return it with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. Every order, resolution or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States, and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.”

In all states of the Union except one the governors, in the same manner or to a modified extent, possess the right of vetoing bills passed by the legislature. Here, therefore, we have again a suspensory veto which is frequently exercised.

According to the constitution of the German empire of 1871, the imperial legislation is executed by the federal council and imperial diet; the emperor is not mentioned. In the federal council the simple majority of votes decides. But in the case of bills concerning the army, the navy and certain specially noted taxes, as well as in the case of decisions concerning the alteration of orders for the administration, and arrangements for the execution of the laws of customs and taxes, the proposal of the federal council is only accepted if the Prussian votes are on the side of the majority in favour of the same (art. vii., sect. 3). Prussia presides in the federal council. The state of things is therefore, in fact, as follows: it is not the German emperor, but the same monarch as king of Prussia, who has the right of veto against bills and decisions of the federal council, and therefore can prevent the passing of an imperial law. The superior power of the presidential vote obtains, it is true, its due influence only in one legislative body, but in reality it has the same effect as the veto of the head of the empire.

The Swiss federal constitution grants the president of the Confederation no superior position at all; neither he nor the federal council possesses the power of veto against laws or decisions of the federal assembly. But in some cantons, viz. St Gall (1831), Basel (1832) and Lucerne (1841), the veto was introduced as a right of the people. The citizens had the power to submit to a plebiscite laws which had been debated and accepted by the cantonal council (the legislative authority), and to reject the same. If this plebiscite was not demanded within a certain short specified time, the law came into force. But, if the voting took place, and if the number of persons voting against the law exceeded by one vote half the number of persons entitled to vote in the canton, the law was rejected. The absent voters were considered as having voted in favour of the law. An attempt to introduce the veto in Zurich in 1847 failed. Thurgau and Schaffhausen accepted it later. Meanwhile another arrangement has quite driven it out of the field. This is the so-called “referendum”—properly speaking, direct legislation by the people—which has been introduced into most of the Swiss cantons. Formerly in all cantons—with the exception of the small mountainous districts of Uri, Schwyz, Unterwalden, Zug, Glarus and Appenzell—it was not a pure democracy, but a representative constitution that prevailed: the great councillors or cantonal councillors periodically chosen by the people were the possessors of the sovereign power, and after deliberating twice passed the bills definitely. Now they have only to discuss the bills, which are printed and sent to all voters with an explanatory message; then the people on a certain day vote for the acceptance or rejection of the law by writing “yes” or “no” on a printed voting paper, which is placed in an urn under official control. In some cantons important financial resolutions involving large state expenses are also submitted to the decision of the people. In the revised federal constitution of 1874, under certain suppositions which have no further interest for us at present, a facultative referendum or Initiative (i.e. the possibility of demanding a plebiscite under exceptional circumstances) was introduced for federal laws. Since that period it has often been employed and has operated like a veto. It is evident that by the compulsory referendum in the cantons the mere veto is rendered superfluous.

In examining the question as to what position the veto occupies in jurisprudence, we must separate quite different conceptions which are comprised under the same name.

1. The veto may be a mere right of intervention on the part of a magistrate against the order of another official, or against that of an authority of equal or inferior rank. This was the case in ancient Rome. To this class belong also those cases in which, as in the French republic, the president makes his “no” valid against decisions of the general councillors, and the prefect does the same against decisions of the communal councillors. The use of the expression here is quite justifiable, and this veto is not confined to bills, but refers particularly to administrative measures. It affords a guarantee against the abuse of an official position.

2. The veto may be a safety-valve against precipitate decisions, and so a preventive measure. This task is fulfilled by the suspensory veto of the president of the United States. Similarly, to this class belong the above-mentioned prescriptions of the Spanish and Norwegian constitutions, and also the veto of the governor of an English colony against decisions of the legislature; for this protest is only intended to prevent a certain want of harmony between the general and the colonial legislation, by calling forth a renewed investigation. This veto is neither an interference with the competence of an authority, nor a division of the legislative power among different factors, but simply a guarantee against precipitancy in the case of a purely legislative measure. The wisdom of establishing this veto power by the constitution is thus manifest.

3. It is wrong to apply the term veto to what is merely the negative side of the sanctioning of the laws, in other words, an act of sovereignty. It would not be in accordance with the nature of a constitutional monarchy to declare the monarch's consent to a law unnecessary, or make it a compulsory duty; the legislative power is divided between him and the chambers. The sovereign must therefore be perfectly at liberty to say “yes” or “no” in each single case according to his opinion. If he says the latter, we speak of it as his veto, but this—if he possesses an absolute and not merely a suspensory veto—is not an intervention and not a preventive measure, but the negative side of the exercise of the legislative power, and therefore an act of sovereignty. That this right belongs fully and entirely to the holder of sovereign power—however he may be called—is self-evident. One chamber can also by protest prevent a bill of the other from coming into force. The “placet of the temporal power for church affairs—when it occurs—also involves in this manner in itself the veto or non placet.” Where in pure democracies the people in their assembly have the right of veto or referendum, the exercise of it is also a result of the sovereign rights of legislature. (For the question of the conflict between the two houses of England, see Representation.)

The peculiar power of veto possessed by the (Prussian) president of the federal council of Germany lies on the boundary between (2) and (3).  (A. v. O.) 

  1. A. V. Dicey, Introduction to the Study of the Law of the Constitution, pp. 111 seq. (6th ed., London, 1902); Sir H. Jenkyns, British Rule and Jurisdiction beyond the Seas, pp. 113 seq. (London, 1902).