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tions: Whether military authority has been established;128 whether or not a Constitution, or an amendment thereto, has been adopted by a State;129 how long military occupation of certain territory may be necessary;130 when the independence131 or belligerency132 of a foreign state should be recognized; what is the boundary between two foreign states;133 or who is the sovereign of a foreign territory.13 The protection of an Indian tribe in the rights which it has acquired by treaty with the United States,135 and the enforcement of the Constitutional guaranty of a republican form of government to the States,136 are also both political questions which fall within the jurisdiction of the executive department of the Government.

§ 186. Relation of President to the courts.-The President has the right to use his discretion in the discharge of the powers and duties conferred upon him by the Constitution, subject only to the liability to impeachment for a gross abuse of such powers. 137 The President's use of his discretionary powers is not subject to the review of the courts. It seems to be doubtful if the writ of mandamus could be used against him to compel the performance even of a mere ministerial act;138 it certainly could not be used to compel the performance of any act in the slightest degree discretionary.139 Nor can the writ of mandamus. issue to direct or control the head of an executive department in the discharge of an executive duty involving the exercise of judgment or discretion.140

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§ 187. The President as part of the legislative department. -The President, in addition to his executive functions, is also in effect made a third branch of the legislative department by the veto power of which the Constitution gives to him.141 The veto power of the crown existed in England from the time that the King ceased to be the real legislative body himself. It had, however, fallen into disuse in England even before the time of the Declaration of Independence. The last occasions on which it was used in England were in 1692 and 1694, when William III vetoed the Bill for Triennial Parliaments and the Place Bill, and 1707, when Queen Anne rejected a Scotch Militia Bill. George III, however, at one time apparently contemplated its use once more, when in 1774 he wrote to Lord North: “I hope the crown will always be able in either House of Parliament to throw out a bill; but I shall never consent to use any expression which tends to establish that at no time the right of the crown to dissent is to be used.142 The royal veto was, however, in effect entirely obsolete in England in 1787, as it is today,143 but to the

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143 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 of 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 the 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.

members of the Constitutional Convention, who here, as in many other instances, looked at the letter of the English Constitution, rather than its spirit, it still seemed to exist. The veto power given to the President in the Constituion was therefore copied from English law, with the modification that the veto created by the Constitution, instead of being an absolute one, as in England, could be overridden by a two-thirds vote of both houses of Congress.144

The veto power is the President's defensive weapon against legislative encroachment. When, indeed, a President like Johnson finds two-thirds of both branches of Congress arrayed solidly against him, he becomes powerless; but in ordinary times a President can almost always carry with him more than one-third of one branch or the other of Congress, and presidential vetoes have been very seldom reversed by Congress, the first instance of this taking place being in 1845.

Nearly one-third of the Presidents never used the veto power at all.145 During the first twenty years after the inauguration of Washington the veto power was only used twice both times by Washington. During the second twenty years only seven times. The Presidents who have made the freest use of this power, considering both the number and importance of the bills vetoed, have been Jackson, Tyler, Johnson, Grant, Hayes and Cleveland. Among the most important bills vetoed have been bills for the creation of a national bank, vetoed by Jackson and Tyler; several reconstruction bills vetoed by Johnson; various currency bills by Grant and Hayes, and the dependent pension bill vetoed by Cleveland.

§ 188. Impeachments. The President and Vice-President

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."' Elliott's Debates, II., p. 472; Bryce's American Commonwealth, Vol. I., p. 56,

note II.

14 See Chapter IV. for further treatment of method of passing bills over President's veto.

145 John Adams, Jefferson, J. C. Adams, Van Buren, W. H. Har rison, Taylor, Fillmore and Gar field.

and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors."146

The subject of impeachment has been treated of in Chapter VII.

146 United

States Constitution, Art. II., Sec. IV.

CHAPTER X.

THE JUDICIAL DEPARTMENT.

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$189. Judicial powers of the United States under the Articles of Confederation.-The judicial powers of the United States under the Articles of Confederation were very limited. The only national courts which these articles provided for were "Courts for the trial of piracies and felonies committed on the high seas; and courts for receiving and determining appeals in all cases of captures." These were supplemented by the provision that: "The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that may arise between two or more states concerning boundary, jurdisdiction or any other causes whatever." Such cases were to be tried by special commission appointed by Congress. A similar method of procedure was provided for the trial of "all controversies concerning the private right of soil claimed under different grants of two or more States." These provisions included the entire grant of judicial power to the United States government prior to the adoption of the Constitution.

$ 190. Constitutional provisions.-Among the changes made by the Constitution was the establishment of a strong national judiciary with extensive powers. The third article of the Constitution is devoted to the judicial department. The first section provides for the establishment of the courts and is as follows: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges

'Articles of Confederation, Article IX., first paragraph.

Id. Article IX., second para

graph.
3 Id.

graph.

See also Chapter III.
Article IX., third para-

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