ment of Representatives proposed by the bill. Second. The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand: which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States; and this bill has allotted to eight of the States more than one for every thirty thousand." The President sent this message to Congress only after the most anxious thought. In Mr. Jefferson's diary1 is to be found a most interesting account of the matter. The vote on the bill had been a sectional one, the North favoring and the South opposing the measure. Washington expressed to Mr. Jefferson the fear lest his veto should be considered as favoring the South, and also lest the Union should be dissolved on account of the sectional feeling which was beginning to show itself, — a foreboding which would seem to denote a deep insight into the future development of political questions. Mr. Jefferson reassured the President, and advised him to veto the bill. Influenced by this advice, and by his own strong feeling that the apportionment was unconstitutional, the President refused to sign the bill, and sent his reasons for that refusal to Congress.

3

The only other instance of the use of the veto power to preserve the form of the legislative branch of the government occurred in Jackson's administration. May 31, 1836, a bill passed Congress which provided that in the future Congress should assemble on the first Monday in November and should adjourn on the second Monday in May.2 The President vetoed the measure on the ground that no Congress had the power to fix the time of adjournment for future Congresses. Jackson based his statement upon the fourth clause of the fifth section of the first article of the Constitution, which declares "that neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting." The President also quoted, as a reason for his opposition, the clause in the Constitution which authorizes the executive to adjourn Congress in case the two houses cannot agree upon a day for adjournment.

When the veto message came up in the Senate, Clay, Webster,

Calhoun, Clayton, and others opposed it.1 Mr. Goldsborough, one of the opponents, argued that the clause upon which the veto was founded 3 referred to temporary adjournments of either house pending the adjournment of the session, but not to the close of the session. Furthermore, he pointed out that, granting the President's statement that one Congress could not fix the time of adjournment for future Congresses, it should have no weight in the present case, since the bill particularly provided that future Congresses might adjourn at any other time than that set down in the act, if only both houses should agree to the change. Mr. Goldsborough's criticism seems just. Jackson's conclusion can hardly be drawn from his premises, and even if his argument were unassailable, his objection would hardly apply to the bill he was vetoing.

§ 15. Vetoes affecting the form of the national Judiciary. — The veto has been called into use to protect not only the form of Congress, but also the form of the national judiciary, and the attempted changes in this latter department which have not met with executive approval have been of no greater importance than those which related to Congress.

The first of these judiciary vetoes was interposed by President Madison, April 3, 1812, to a bill entitled: "An act providing for the trial of causes pending in the respective District Courts of the United States, in case of the absence or disability of the judges thereof." The bill was intended primarily to give relief to the district courts of New York State, which were some seven hundred cases behind in their work. The President refused his assent to the bill for four reasons, the most important of them being as follows. In the first place, the new district judges contemplated by the act were to be the Supreme Court judges, who were already Circuit Court judges. The law allowed appeals from the district to the circuit courts. But as the act contemplated making the same man both circuit and district judge, the President thought that the advantage of an appeal would be lost. In the second place, the act left it with the President to determine when it should be necessary for the justices of the Supreme Court to perform the duties of District Court justices. Mr. Madison very wisely considered that this was "an unsuitable relation of members of the judiciary 1 Congressional Debates, XII, Part II, 1859.

department to a discretionary authority of the executive department." Lastly, the President vetoed the bill because it virtually appointed the justices of the Supreme Court to new offices, thereby usurping a power which belonged to the executive branch of the government.1 The President's objections were evidently considered sound, for the Senate sustained the veto by a large vote.2

December 14, 1842, President Tyler sent to the House of Representatives his reasons for the "pocket veto" at the last session of Congress of a bill entitled: "An act regulating the taking of testimony in cases of contested elections, and for other purposes.' Mr. Tyler did not sign the bill, because it had been presented to him so near the end of the session that he could not find time to read it through before Congress adjourned.

The practice of deluging the President in the last moments of a session of Congress with bills requiring his signature is very injurious to the interests of good legislation. Little or no time can be given to the consideration of each act, and as a result, bills become laws which even a slight examination would cause to be rejected. Under such circumstances, a President would be justified in refusing to sign a measure of which he knew nothing. In the case under consideration, the President's failure to approve may have come wholly from an unwillingness to sign a measure of whose provisions he was ignorant. But the great care with which Mr. Tyler elaborates his reason for the veto raises a suspicion that he objected less to the time of presentation than to the measure itself. In the last paragraph of the message he betrays such knowledge of the provisions of the bill as to show that he had spent much time upon it after the adjournment of Congress.

January 22, 1873, the veto was again made use of to preserve the form of the judiciary. On that day, President Grant refused to sign a bill entitled: "An act in relation to new trials in the Court of Claims." 5 The purpose of this act was to modify an existing act of Congress which allowed the government to suspend payment for two years on judgments obtained against it in the

1 Post, § 16.

2

Appendix A, No. 5.

3 Appendix A, No. 27,

4 President Cleveland stated to Mr. Kenna in February, 1888, that he had received one hundred bills at the end of the preceding session, one of which, an important appropriation bill, he had not had time even to read. MS. letter of Senator G. F. Hoar to Professor Hart, Feb. 11, 1888.

5 Appendix A, No. 87.

Court of Claims. If evidence came to light within that time which showed the claim to be unjust, the United States could move for a new trial. The privilege of suspending judgment was only exercised in doubtful cases where fraud was suspected. The act under consideration reduced the time during which the government could suspend payment from two years to six months. The President refused to sanction the bill, on the ground that, by reducing the time during which judgment was suspended, it greatly increased the opportunities for defrauding the government. On the other hand, he pointed out that perfectly good claims would gain nothing by the new law, since, under the old law, claims which were evidently meritorious were settled without delay. The President's message was referred to the Committee on the Judiciary and ordered to be printed; but no attempt was ever made to pass the bill over the veto.

May 26, 1876, President Grant vetoed a bill entitled: "An act providing for the recording of deeds, mortgages, and other conveyances affecting real estate in the District of Columbia." 1 The bill was vetoed because it was drawn with such indefiniteness and uncertainty that it would lead to serious complications in regard to transfers of real estate, if it should become a law.

Only once since President Grant's administration has the executive refused to sign a bill affecting the national judiciary. March 6, 1878, President Hayes vetoed a bill entitled: "An act to authorize a special term of the Circuit Court of the United States for the southern district of Mississippi, to be held at Scranton, in Jackson County." The President objected to the bill for two reasons. In the first place, because the time between the passage of the bill and the proposed session of the Circuit Court was not sufficient to allow the notice of the extra term to be published in the manner contemplated by the bill. In the second place, because although the United States was interested in forty-nine of the suits which it was proposed to bring in the extra term, it was shown that the government could not prepare for trial on such short notice, since no fund appropriated by Congress could be made available for that purpose. When the message was read in the House there was a little desultory debate as to just how many cases the proposed court would have to try. Then the veto was referred to the Committee on the Judiciary, and no further action was taken by Congress.

§ 16. General effect of vetoes considered in this chapter. The vetoes already considered, although few in number, are the only ones in our history which have directly protected the form of the government. The executive has frequently disagreed with Congress as to the powers which the Constitution has granted to Congress and to the States, and in some of the clauses of that document different meanings have been attached to almost every word; but though there have been differences in regard to the nature of the instrument, there have been few attempts essentially to change the form of government established under it. This is the more remarkable when it is remembered that Congress had a very large share in fixing the form of government, the outlines of which alone were settled by the Constitution. Indeed, only one of the unsuccessful attempts at change which we have just examined was of any constitutional importance. This was the apportionment bill that Washington vetoed: a bill which did seem to threaten in some degree the constitutional method of assigning representatives. But even this attack on the form of the legislature was probably unintentional. The other vetoes were called out either because the proposed legislation seemed inexpedient, or because it seemed corrupt. Jackson to be sure tried to base his veto of the bill regulating the length of the sessions of Congress on constitutional grounds, but he hardly made out his case.

In summing up this comparatively unimportant branch of the subject, we may say that the vetoes included here do not stand for any great constitutional principles, nor even for any connected policy of mere expediency, but are isolated endeavors of the executive to prevent the legislature from passing useless, or worse than useless, laws.