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with a statement of his grounds of disapproval. If both Houses take up the bill again and pass it by a two-thirds majority in each House, it becomes law forthwith without requiring the President's signature. If it fails to obtain this majority it drops.

Considering that the arbitrary use, by George III. and his colonial governors, of the power of refusing bills passed by a colonial legislature had been a chief cause of the Revolution of 1776, it is to the credit of the Americans that they inserted this apparently undemocratic provision in the Constitution of 1789.2 It has worked wonderfully well. Most Presidents have used it sparingly, and only where they felt either that there was a case for delay, or that the country would support them against the majority in Congress. Perverse or headstrong Presidents have been generally defeated by the use of the two-thirds vote to pass the bill over their objections. Washington vetoed (to use the popular expression) two bills only; his successors down till 1830, seven; and till the accession of President Cleveland in 1885 the total number vetoed was only seventy-seven (including the socalled pocket vetoes) in ninety-six years.3 Mr. Cleveland had up to March 1887 vetoed a much larger number than this, the great majority being bills for granting pensions to persons who served in the northern armies during the War of Secession. Though

1 If Congress adjourns within the ten days allowed the President for returning the bill, it is lost. His retaining it under these circumstances at the end of a session is popularly called a "pocket veto."

2 At that time there was only one State, Massachusetts, whose constitution allowed the governor a veto. As to the veto power in the States, an interesting subject, see post, Chapters XL. and XLI.

3 Mr. Horace Davis (in Johns Hopkins University Studies, Third Series, Nos. ix. x.) gives the following particulars, up to 1885: "Forty-three of the seventyseven vetoes emanated from four Presidents, viz. Jackson, eleven; Tyler, ten; Johnson, thirteen; Hayes, nine. All these administrations were periods of fierce conflict with a hostile Congress. Add Madison, six; Pierce, five; Buchanan, seven; and Grant, six; and we have sixty-seven out of seventy-seven vetoes, and only ten remain to the other twelve Presidents. Five subjects comprise the majority of all the vetoes, viz. Internal improvements, seventeen; United States Bank, four; Reconstruction Acts, seven; Rebel claims, four; Interference at elections by marshals and soldiers, seven; in all, thirty-seven out of seventyseven. Ten bills have been passed over vetoes, viz. one under Tyler, seven under Johnson, one under Hayes, and one under Arthur."

4 In 1886 Mr. Cleveland returned to Congress 115 bills in all, of which 101 were pension bills. It was attempted to pass a second time only eight of these, and only one was in fact repassed. His chief ground was that a regular bureau exists for dealing with and awarding pensions under the general law, that many of the claims recognized by these bills had been reported against, and that others were open to suspicion.

many of these bills had been passed with little or no opposition scarcely any were repassed against his veto. The only President who used the power in a reckless way was Andrew Johnson, who, in the course of his three years' struggle with Congress, returned to them the chief bills they passed for carrying out their Southern Reconstruction policy. As the majority opposed to him was a large one in both Houses, these bills were promptly passed over his veto.

So far from exciting the displeasure of the people by resisting the will of their representatives, a President generally gains popularity by the bold use of his veto power. It conveys the impression of firmness; it shows that he has a view and does not fear to give effect to it. The nation, which has often good grounds for distrusting Congress, a body liable to be moved by sinister private influences, or to defer to the clamour of some noisy section outside, looks to the man of its choice to keep Congress in order. By "killing" more bills than all his predecessors put together had done, Mr. Cleveland raised himself in public opinion and improved the prospects of his re-election. The reasons why the veto provisions of the Constitution have succeeded appear to be two. One is that the President, being an elective and not a hereditary magistrate, is deemed to act for the people, is responsible to the people, and has the weight of the people behind him. The people regard him as a check, an indispensable check, not only upon the haste and heedlessness of their representatives, the faults that the framers of the Constitution chiefly feared, but upon their tendency to yield either to pressure from any section of their constituents, or to temptations of a private nature. He is expected to resist these tendencies on behalf of the whole people, whose interests may suffer from the selfishness as well of sections as of individuals. The other reason is that a veto can never take effect unless there is a substantial minority of Congress, a minority exceeding one-third in one or other House, which agrees with the President. Should the majority threaten him he is therefore sure of considerable support. Hence this arrangement is preferable to a plan, such as that of the French Constitution of 17911 (under which the king's veto could be overridden by passing a bill in three succes

1 As the majority in France was unable to attain its will by constitutional means without waiting three years, it was the more disposed to overthrow the Constitution.

sive years), for enabling the executive simply to delay the passing of a measure which may be urgent, or which a vast majority of the legislature may desire. In its practical working the presi dential veto power furnishes an interesting illustration of the tendency of unwritten or flexible constitutions to depart from, of written or rigid constitutions to cleave to, the letter of the law. The strict legal theory of the rights of the head of the State is in this point exactly the same in England and in America. But whereas it is now the undoubted duty of an English king to assent to every bill passed by both Houses of Parliament, however strongly he may personally disapprove its provisions,1 it is the no less undoubted duty of an American President to exercise his independent judgment on every bill, not sheltering himself under the representatives of the people, or foregoing his own opinion at their bidding.2

As the President is charged with the whole Federal administration, and responsible for its due conduct, he must of course be allowed to choose his executive subordinates. But as he may abuse this tremendous power the Constitution associates the Senate with him, requiring the "advice and consent" of that body to the appointments he makes. It also permits Congress to vest in the courts of law, or in the heads of departments, the

1 Queen Elizabeth, in A.D. 1597, assented to forty-three bills passed in that session, and "advised herself upon " forty-eight. William III. refused to assent to five bills. The last instance of the use of the "veto power" in England was by Queen Anne in 1707 on a Scotch militia bill. Mr. Tod (Parliamentary Government in the English Colonies, ii. p. 319) mentions that in 1858 changes in a private railway bill were compelled by an intimation to its promoters that, if they were not made, the royal power of rejection would be exercised.

2 The practical disuse of the "veto power" in England is due not merely to the decline in the authority of the Crown, but to the fact that, since the Revolution, the Crown acts only on the advice of responsible ministers, who necessarily command a majority in the House of Commons. A bill therefore cannot be passed against the wishes of the ministry unless in the rare case of their being ministers on sufferance, and even in that event they would be able to prevent its passing by advising the Crown to prorogue or dissolve Parliament before it had gone through all its stages. In 1868 a bill (the Irish Church Suspension Bill) was carried through the House of Commons by Mr. Gladstone against the opposition of the then Tory ministry which was holding office on sufferance; but it was rejected on second reading by a large majority in the House of Lords. Had that House seemed likely to accept it the case would have arisen which I have referred to, and the only course for the ministry would have been to dissolve Parliament. It was urged against the provision in the Constitution of 1789 for the President's veto that the power would be useless, because in England the Crown did not venture to use it. Wilson replied by observing that the English Crown had not only practically an antecedent negative, but also a means of defeating a bill in the House of Lords by creating new peers.-Elliot's Debates, ii. p. 472.

right of appointing to "inferior offices." This last clause has been used to remove many posts from the nomination of the President. But a vast number, roughly estimated at 3500, and including for example nearly 600 places under the Treasury, and nearly 2000 post-masterships, still remain in his gift. The confirming power entrusted to the Senate has become a political factor of the highest moment. The framers of the Constitution probably meant nothing more than that the Senate should check the President by rejecting nominees who were personally unfit, morally or intellectually, for the post to which he proposed to appoint them. The Senate has always, except in its struggle with President Johnson, left the President free to choose his cabinet ministers. But it early assumed the right of rejecting a nominee to any other office on any ground which it pleased, as for instance, if it disapproved his political affiliations, or simply if it disliked him, or wished to spite the President. Presently the senators from the State wherein a Federal office to which the President had made a nomination lay, being the persons chiefly interested in the appointment, and most entitled to be listened to by the rest of the Senate when considering it, claimed to have a paramount voice in deciding whether the nomination should be confirmed. This claim was substantially yielded, for it applied all round, and gave every senator what he wanted. The senators then proceeded to put pressure on the President. They insisted that before making a nomination to an office in any State he should consult the senators from that State who belonged to his own party, and be guided by their wishes. Such an arrangement benefited all senators alike, because each obtained the right of practically dictating the appointments to those Federal offices which he most cared for, viz. those within the limits of his own State; and each was therefore willing to support his colleagues in securing the same right for themselves as regarded their States respectively. Of course when a senator belonged to the party opposed to the President, he had no claim to interfere, because places are as a matter of course given to party adherents only. When both senators belonged to the President's party they agreed among themselves as to the person whom they should require the President to nominate. By this

1 The Constitution also permits Congress to vest the appointment of such inferior offices as it thinks fit in the President alone, so as not to require the Senate's concurrence.

system, which obtained the name of the Courtesy of the Senate, the President was practically enslaved as regards appointments, because his refusal to be guided by the senator or senators within whose State the office lay exposed him to have his nomination rejected. The senators, on the other hand, obtained a mass of patronage by means of which they could reward their partisans, control the Federal civil servants of their State, and build up a faction devoted to their interests.1 Successive Presidents chafed under the yoke, and sometimes carried their nominees either by making a bargain or by fighting hard with the senators who sought to dictate to them. But it was generally more prudent to yield, for an offended senator could avenge a defeat by playing the President a shrewd trick in some other matter; and as the business of confirmation is transacted in secret session, intriguers have little fear of the public before their eyes. The senators might, moreover, argue that they knew best what would strengthen the party in their State, and that the men of their choice were just as likely to be good as those whom some private friend suggested to the President. Thus the system throve and still thrives, though it received a blow from the conflict in 1881 between President Garfield and one of the New York senators, Mr. Roscoe Conkling. This gentleman, finding that Mr. Garfield would not nominate to a Federal office in that State the person he proposed, resigned his seat in the Senate, inducing his co-senator Mr. Platt to do the same. Both then offered themselves for re-election by the State legislature of New York, expecting to obtain from it an approval of their action, and thereby to cow the President. The State legislature, however, in which a faction hostile to the two senators had become powerful, rejected Mr. Conkling and Mr. Platt in favour of other candidates. So the victory remained with Mr. Garfield, while the nation, which had watched the contest eagerly, rubbed its hands in glee at the unexpected dénouement.

Before we quit this subject, to which I may return in a later chapter, it must be remarked that the "Courtesy of the Senate" would never have attained its present strength but for the growth in and since the time of President Jackson, of the so

1 As the House of Representatives could not allow the Senate to engross all the Federal patronage, there has been a tendency towards a sort of arrangement, according to which the greater State offices belong to the senators, while as regards the lesser ones, lying within their respective Congressional districts, members of the House are recognized as entitled to recommend candidates.

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