Page images

for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, the militia itself is a State force until it is actually called into service for the Union, and the appointment of officers is reserved to the State. “Bodies of militia called into the service of the United States are subject not only to the orders of the President as commanderin-chief, but also to those of any officer outranking their own who may, under the authority of the commander-in-chief, be placed over them.”*

In the course of the controversy about Home Rule in Ireland, is sometimes assumed that one of its essential features is an Irish Executive proceeding from and dependent upon an Irish Parliament. Whether, granting that there is to be an Irish Executive, it ought to depend for its existence on the support of a parliamentary majority, is a very large question, and one that has never yet been subjected to discussion. The proposal has been taken for granted, rather than established by argument, and it is a not unnatural inference from our own parliamentary practice. But the essential difference between the Imperial Parliament and the proposed Irish Legislature has been overlooked by those who

shudder with horror. But the United States Government had no right to interfere, although the draft was for its benefit, to replenish its armies fighting for the restoration of the Union. The draft was made under the immediate direction of the State. No officer of the Government, from the President down, could act except when called upon by the State authorities."

* Cooley's "Constitutional Principles,” p. 89.

assert the principle as too obviously just to be discussed. The Imperial Parliament is omnipotent, and all powers and authorities depend upon its will—the Executive among the rest. We cannot choose but make the Executive dependent upon a parliamentary majority so long as the present theory of the Constitution holds good.

Whether we should, without any such necessity, import the same principle into a system of subordinate legislatures is a question which we have no intention of discussing here, beyond pointing out that the risk of unstable administrations and frequent general elections is not one to be undertaken lightly or without cause. It will be sufficient to direct attention to the palpable fact that the practice of the United States is established on the opposite principle. Home Rule, according to the American plan, would certainly mean both an Irish Parliament and an Irish Executive, but not an Executive dependent on and proceeding from Parliament. All the Parliaments of the United States are statutory, limited, and in a sense subordinate, but not one of them has an Executive dependent upon it. Congress, as we have seen, has acquired a certain and considerable measure of control over the actions of the Executive, but the Executive is not dependent on Congress in the sense in which the phrase is used amongst ourselves. Still less is the State Executive dependent on the State Legislature. Least of all is the Territorial Executive, resting as it does on Federal authority, dependent on the Territorial Legislature.

THE VETO.--Another issue of the second order of importance in the Home Rule controversy is one on which American practice may be appealed to with some advantage. The Home Rule Bill, it will be remembered, gave to the Lord-Lieutenant a veto on the measures passed by the Irish legislative body. The question was frequently asked, Is this to be a real or a sham veto? It was said there are vetoes and vetoes. The British constitution offers instances of vetoes which are rarely acted on, or never acted on at all. The most conspicuous example is the veto of the Crown on bills which have passed both Houses of Parliament. According to the now current theories of the Constitution, the veto of the Crown is a fiction.* It is nearly two hundred years since it was last exercised. Was the veto of the Lord-Lieutenant intended to be a counterpart of the veto of the Crown? The question, and indeed some of the answers to it, were based to some extent on a misconception of the present system. The veto of the Crown is inoperative only because the House of Commons has possessed itself of it, and the House of Commons has no occasion to exercise the veto upon itself. It is conceivable, indeed, that after a bill had passed both Lords and

* "The necessity of refusing the royal assent is removed by the strict observance of the constitutional principle that the Crown has no will but that of its Ministers, who only continue to serve in that capacity as long as they retain the confidence of Parliament. This power was last exercised in 1707, when Queen Anne refused her assent to a bill for settling the militia of Scotland.”—May's Parliamentary Practice.

Commons, some sudden change in sentiment, or some sudden revelation of circumstances unknown to the House when it consented to the passing of the bill, might call for the refusal of the royal assent; and if the Ministry authorised the refusal, it would do so under the same conditions that apply to all its public acts.

The House of Commons has virtually made itself omnipotent, and the Ministry, which alone could wield the veto, is its instrument. It does not follow that a veto expressly intrusted to another of its instruments, the Lord-Lieutenant, on the measures of a subordinate and limited Legislature should be equally dormant. Whether it would be exercised often, or at all, is a question that would depend entirely on the good sense and good feeling of the Irish legislative body and the British Government. So far as American examples go, they show that the veto, under which all the Legislatures are laid, is anything but a sham. Alike in Federal and State Governments, the President or Governor disallows bills of which he disapproves. In some cases, where a bill appears to be unconstitutional, the head of the State deems it to be his duty to refuse his assent, in order to avoid the expensive and dilatory proceedings which might follow if that question had to be tested in a court of law. The writer has known cases in which a Governor has heard counsel for parties interested in the question whether a particular bill, not a private bill, should be allowed to pass. Only the other day, the President of the United States exercised his power in a most striking

and effectual manner, by refusing his assent to a Pension Bill in support of which very formidable political forces had been arrayed. The case is remarkable from the fact that whereas the bill had been originally passed by a two-thirds majority in each House, when it was sent back for reconsideration to the House of Representatives, the requisite majority to pass it over the President's veto was not obtained. The veto is, in fact, an essential feature of the American system, and it is neither ineffective nor unduly obstructive. The peculiar conditions under which it is applied must not, however, be forgotten. The officer who exercises this power is equally with the Legislature the nominee of the people. His veto is not an external veto, as that of the Lord-Lieutenant would be. The same electors are the source of authority to the Legislature and the officer having the power of veto. The exercise of that power is thus certain to be strengthened by his equal claim to represent the opinion of the people, and certain to be moderated by the corresponding authority of the Legislature. And in most cases the veto of the executive officer may be overcome by the two-thirds vote of both Houses. The critics of the Irish Home Rule Bill demanded, rather unreasonably, that the exercise of the Lord-Lieutenant's veto should be regulated beforehand. If prescribed conditions could have such an effect, this condition might be worthy of some attention. An executive officer might be the more readily disposed to give effect to his own views about

« ՆախորդըՇարունակել »