LECTURE XIII.

OF THE PRESIDENT.

THE title of the present lecture may conveniently be examined in the following order: 1. The unity of this department. 2. The qualifications required by the Constitution for the office of President. 3. The mode of his appointment. 4. His duration. 5. His support. 6. His powers.

By the Constitution, it is ordained that the executive power shall be vested in a President. (a)

1. Unity of the Office. — The object of this department is the execution of the law; and good policy dictates that it should be organized in the mode best calculated to attain that end with precision and fidelity. Consultation is necessary in the making of laws. The defect or grievance they are intended to remove must be distinctly perceived, and the operation of the remedy upon the interests, the morals, and the opinion of the community profoundly considered. A comprehensive knowledge of the great interests of the nation, in all their complicated relations and practical details, seems to be required in sound legislation; and it shows the necessity of a free, full, and perfect representation of the people, in the body intrusted with the legislative power. But when laws are duly made and promulgated, they only remain to be executed. No discretion is submitted to the executive officer. It is not for him to deliberate and decide upon the wisdom or expediency of the law. What has been once declared to be law, under all the cautious forms of deliberation prescribed by the Constitution, ought to receive prompt obedience. The characteristical qualities required in the {272} executive department are promptitude, decision, and force; and these qualities are most likely to exist when the executive authority is limited to a single person, moving by

(a) Art. 2, sec. 1.

the unity of a single will. Division, indecision, and delay are exceedingly unfavorable to that steady and vigorous administration of the law which is necessary to secure tranquillity at home, and command the confidence of foreign nations. Every government, ancient and modern, which has been constituted on different principles, and adopted a compound executive, has suffered the evils of it; and the public interest has been sacrificed, or it has languished under the inconveniences of an imbecile or irregular administration. In those states which have tried the project of executive councils, the weakness of them has been strongly felt and strikingly displayed; and in some instances in which they have been tried (as in Pennsylvania and Georgia), they were soon abandoned, and a single executive magistrate created, in accordance with the light afforded by their own experience, as well as by the institutions of their neighbors.1

Unity increases not only the efficacy, but the responsibility, of the executive power. Every act can be immediately traced and brought home to the proper agent. There can be no concealment of the real author, nor, generally, of the motives of public measures, when there are no associates to divide or to mask responsibility. There will be much less temptation to depart from duty, and much greater solicitude for reputation, when there are no partners to share the odium, or to communicate confidence by their example. The eyes of the people will be constantly directed to a single conspicuous object; and, for these reasons, De Lolme (a) considered it to be a sound axiom of policy, that the executive power was more easily confined when it was one. "If the execution of the laws," he observes, "be intrusted to a

number of hands, the true cause of public evils is hidden. {273} Tyranny, in such states, does not always beat down the

fences that are set around it, but it leaps over them. It mocks the efforts of the people, not because it is invincible, but because it is unknown." The justness of these reflections might be illustrated and confirmed by a review of the proceedings of the former council of appointment in New York, under the Constitution of 1777. All efficient responsibility was there lost, by reason of the constant change of the members, and the difficulty

(a) Const, of England, 111. [Book 2, c. 2.] 1Ante, 221, n. 1.

of ascertaining the individual to whom the origin of a bad appointment was to be attributed.

2. Qualifications. — The Constitution requires (a) that the President shall be a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, and that he shall have attained to the age of thirty-five years, and shall have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient executive power in government, these restrictions will not appear altogether useless or unimportant. As the President is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the pontificate at Rome. The age of the President is sufficient to have formed his public and private character; and his previous domestic residence is intended to afford to his fellow-citizens the opportunity to attain a correct knowledge of his principles and capacity, and to have enabled him to acquire habits of attachment and obedience to the laws, and of devotion to the public welfare.

3. Mode of Election. — The mode of his appointment presented one of the most difficult and momentous questions that occupied the deliberations of the assembly which framed the Constitution; and if ever the tranquillity of this nation is to be disturbed, {274} and its liberties endangered by a struggle for power, it will be upon this very subject of the choice of a President. This is the question that is eventually to test the goodness and try the strength of the Constitution; and if we shall be able, for half a century hereafter, to continue to elect the chief magistrate of the Union with discretion, moderation, and integrity, we shall undoubtedly stamp the highest value on our national character, and recommend our republican institutions, if not to the imitation, yet certainly to the esteem and admiration, of the more enlightened part of mankind. The experience of ancient and modern Europe has been unfavorable to the practicability of a fair and peaceable popular election of the executive head of a great nation. It has been found impossible to guard

(a) Art. 2, sec. 1.

the election from the mischiefs of foreign intrigue and domestic turbulence, from violence or corruption; and mankind have generally taken refuge from the evils of popular elections in hereditary executives, as being the least evil of the two. The most recent and remarkable change of this kind occurred in France, in 1804, when the legislative body changed their elective into an hereditary monarchy, on the avowed ground that the competition of popular elections led to corruption and violence. And it is a curious fact in European history, that on the first partition of Poland, in 1773, when the partitioning powers thought it expedient to foster and confirm all the defects of its wretched government, they sagaciously demanded of the Polish diet that the crown should continue elective. (a) This was done for the very purpose of keeping the door open for foreign intrigue and influence. Mr. Paley (b) condemns all elective monarchies, and he thinks nothing is gained by a popular choice, worth the dissensions, tumults, and interruptions of regular industry, with which it is inseparably attended. I am not called upon to question the wisdom {275} or policy of preferring hereditary to elective monarchies among the great nations of Europe, where different orders and ranks of society are established, and large masses of property accumulated in the hands of single individuals, and where ignorance and poverty are widely diffused, and standing armies are necessary to preserve the stability of the government." The state of society and of property in this country, and our moral and political habits, have enabled us to adopt the republican principle, and to maintain it hitherto with illustrious success. It remains to be seen whether the checks which the Constitution has provided against the dangerous propensities of our system will ultimately prove effectual. The election of a supreme executive magistrate for a whole nation affects so many interests, addresses itself so strongly to popular passions, and holds out such powerful temptations to ambition, that it necessarily becomes a strong trial to public virtue, and even hazardous to the public tranquillity. The Constitution, from an enlightened view of all the difficulties that attend the subject, has not thought it safe or prudent to refer the election of a President directly and immediately to the people; but it has confided the

(a) Cox's Travels in Poland, Russia, &c., i.

(b) Principles of Moral and Political Philosophy, 345.

power to a small body of electors, appointed in each state, under the direction of the legislature; and to close the opportunity as much as possible against negotiation, intrigue, and corruption, it has declared that Congress may determine the time of choosing the electors, and the day on which they shall vote, and that the day of election shall be the same in every state. (a) This security has been still further extended by the act of Congress (b) directing the electors to be appointed in each state within thirty-four days of the day of election. (x)

The Constitution (c) directs that the number of electors in each state shall be equal to the whole number of senators and representatives which the state is entitled to send to Congress; and, according to the apportionment of Congress {276} in 1832, the President was to be elected by a majority of 294 electors; and in 1844 the number of electors was reduced to 275. (a) And to prevent the person in office, at the time of the election, from having any improper influence on his re-election, by his ordinary agency in the government, it is provided, that no member of Congress, nor any person holding an office of trust or profit under the United States, shall be an elector; and the Constitution has in no other respects defined the qualifications of the electors. (b) These electors meet in their respective states, at a place appointed by the legislature thereof,

(a) Art. 2, sec. 1. By the act of Congress of January 23, 1845, c. 1, a uniform time for holding elections for electors of President and Vice-President in all the states was prescribed. It was to be on the Tuesday next after the first Monday in the month of November of the year in which they are to be appointed.

(b) Act of 1st March, 1792. (c) Art. 2, sec. 1.

(a) This arose from the enlargement of the ratio of representation from 47,700 to 70,680 persons, for a member of the House of Representatives; by which provision the number of the House was reduced from 242 to 223 members. Act of Congress of June 25, 1842, c. 47. (b) Art 2. sec. 1.

(a) The second clause of Art. II. of the Constitution was not amended by the fourteenth and fifteenth amendments, and under it the State legislatures have exclusive power to direct the manner in which the electors of President and Vice-President shall be appointed. McPherson v. Blacker, 146 U. S. 1, affirming S. C. 92 Mich. 377. As Presidential electors are state officers, the respective states can alone punish fraudulent voting in their

election. In re Green, 134 U. S. 377. The power of a State to change its mode of choosing presidential electors has not been taken away by the fourteenth and fifteenth amendments, or by the custom which has gradually been adopted of electing them popularly by general ticket, although the expectation of the framers of the Constitution as to the independence of the electors may thereby have been frustrated. McPherson v. Blacker, supra.

on the first Wednesday in December in every fourth year succeeding the last election, and vote by ballot for President and Vice-President (for this last officer is elected in the same manner and for the same period as the President), and one of whom, at least, shall not be an inhabitant of the same state with the electors. They name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President; and they make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they sign and certify, and transmit, sealed, to the seat of the government of the United States, directed to the President of the Senate. The act of Congress of 1st of March, 1792, sec. 2, directs, that the certificate of the votes shall be delivered to the President of the Senate before the first Wednesday of January next ensuing the election. The President of the Senate, on the second Wednesday in February succeeding every meeting of the electors, in the presence of both houses of Congress, opens all the certificates, and the votes are then to be counted. The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes, and a closely contested election, this power may be all-important; and I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes, and {277} determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors. (a) The

(a) In determining the result of the election for President, in 1841, it was declared, by joint resolution of the two houses of Congress, that one person be appointed teller on the part of the Senate, and two on the part of the House of Representatives, who were, in the presence of the two houses, to make a list of the votes as they should be declared, and the result declared to the President of the Senate, who was to be the presiding officer, and to announce to the two houses the state of the vote and the persons elected. The Vice-President, in that case, broke the seals of the envelopes of the votes, and delivered the same over to the tellers to be counted. The tellers having read, counted, and made duplicate lists of the votes, they were delivered over to the Vice-President, and read, and he then declared the result, and dissolved the joint meeting of the two houses.

[Counting the Votes for President. (x) — The weakness of this part of the Consti-

(x) The counting of votes for President and Vice-President, and the decision of questions arising thereon, are now regu-

lated by the Act of Feb. 3, 1887 (24 St. at L. 373), as amended by the. Act of Oct. 19, 1888 (25 St. at L. 613).

House of Representatives, in such case, are to choose immediately, though the Constitution holds their choice to be valid, if made before the fourth day of March following. And in the cases of the elections in 1801 and 1825, as no choice was made, the House of Representatives retired and voted, and the Senate were admitted to be present as spectators. The person having the greatest number of votes of the electors for President, is President, if such number be a majority of the whole number of electors appointed; but if no person have such a majority, then, from the persons having the highest number, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote. A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. If the House of Rep-

tution was forcibly illustrated by the election of 1877. The vote at the polls had been close, and the result turned upon the votes of Florida, Louisiana, and South Carolina. The regularly appointed returning boards had given these states to the Republicans, but it was claimed by the Democrats that these returns were fraudulent, and they demanded an investigation. The Republicans claimed that the returns, having been duly made, were conclusive. The President of the Senate was Republican, but the Democrats had a majority on a joint ballot of the two houses. The question by whom the votes were to be counted was therefore vital, and the difficulty of solving it bade fair for a time to strain the Constitution. The difficulty was finally avoided by the passage of the Electoral Commission Bill. This act was made to apply only to the election in controversy. Under it the returns were to be opened by the President of the Senate, and handed to tellers previously appointed by the Senate and House respectively, who were to read the same. If there was only one return or purported return from a state, the President was to call for objections, if any. If any objections were made in the form prescribed, they were to be submitted to the houses of Congress separately, and no return was to be rejected without the concurrence of both houses. If more than one return from a state had been received, they were to be opened and read as in case of a single return, and objections in writing to each return received; and then the question of which was the correct and legal return was to be referred to a commission composed of five representatives to be chosen by the House of Representatives, five senators to be chosen by the Senate, and five judges of the United States Supreme Court, four of whom were designated, and power conferred upon them to choose the fifth. 19 Stat. at Large, 227. More than one purported return had been received from each of the three states mentioned above, and these were all referred to the commission. The commission decided, by a vote of eight to seven, that they could not go behind the regular returns, and the votes of those states were accordingly counted for the Republicans. Since that time efforts have been made to provide a more satisfactory mode of counting the votes, but as yet without success. — B.]

resentatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, a& in the case of the death or other constitutional disability of the

President. (b)

The person having the greatest number of votes as Vice-President, is Vice-President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole number is necessary to a choice; and no person constitutionally ineligible {278} to the office of President shall be eligible to that of Vice-President of the United States. (a) The Constitution does not specifically prescribe when or where the Senate is to choose a Vice-President, if no choice be made by the electors; and, I presume, the Senate may elect by themselves, at any time before the fourth day of March following.

The President and Vice-President are equally to be chosen for the same term of four years; (b) and it is provided by law, (c) that the term shall, in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the office, the same devolve on the Vice-President; and except in cases in which the President is enabled to reassume the office, the Vice-President acts as President during the remainder of the term for which the President was elected. Congress are authorized to provide by law for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer should then act as President; (x) and the officer so designated is to act until the disability be removed, or a Presi-

(b) Amendments to the Constitution, art. 12. (a) Ibid.

(b) Constitution, art. 2, sec. 1. (c) Act of Congress, March 1, 1792.

(x) The act of Congress of Jan. 19, 1886 (24 St. at L. 1), provided that, in case of the removal, death, resignation, or inability of both the President and Vice-Presi-

dent, the Secretary of State, or other member of the Cabinet, shall act temporarily as President.

dent shall be elected, and who is in that case to be elected on the first Wednesday of the ensuing December, if time will admit of it, and if not, then on the same day in the ensuing year. (d) In pursuance of this constitutional provision, the act of Congress of March 1, 1792, sec. 9, declared, that in case of a vacancy in the office, both of President and Vice-President, the President of the Senate pro tempore, and in case there should be no President of the Senate, then the Speaker of the House of Representatives for the time being, should act as President until the vacancy was supplied. The evidence of a refusal to accept, or of a resignation of the office of President and Vice-President is declared, by the same act of Congress, sec. 11, to be a declaration in writing, filed in the office of the Secretary of State. And if the office should, by the course of events, devolve on the Speaker, after the Congress for which the last Speaker was chosen had expired, and before the next meeting of Congress, it might be a question who is to serve, {279} and whether the Speaker of the House of Representatives, then extinct, could be deemed the person intended.

The mode of electing the President appears to be well calculated to secure a discreet choice, and to avoid all those evils which the partisans of monarchy have described, and the experience of other nations and past ages have too clearly shown to be the consequence of popular elections. Had the choice of President been referred at once, and directly, to the people at large, as one single community, there might have been reason to apprehend, and such no doubt was the sense of the convention, that it would have produced too violent a contest, and have been trying the experiment on too extended a scale for the public virtue, tranquillity, and happiness. Had we imitated the practice of most of the southern states, in respect to their state executives, and referred the choice of the President to Congress, this would have rendered him too dependent upon the immediate authors of his elevation to comport with the requisite energy of his own department; and it would have laid him under temptation to indulge in improper intrigue, or to form a dangerous coalition with the legislative body, in order to secure his continuance in office. All elections by the representative body are peculiarly liable to produce combinations for sinister purposes. The Con-

(d) Constitution, art. 2, sec. 1; act of Congress, March 1, 1792.

stitution has avoided all these objections, by confiding the power of election to a small number of select individuals in each state, chosen only a few days before the election, and solely for that purpose. This would seem, prima facie, to be as wise a provision as the wisdom of man could have {280} devised, to avoid all opportunity for foreign or domestic intrigue. These electors assemble in separate and distantly detached bodies, and they are constituted in a manner best calculated to preserve them free from all inducements to disorder, bias, or corruption. There is no other mode of appointing the chief magistrate, under all the circumstances peculiar to our political condition, which appears to unite in itself so many unalloyed advantages. It must not be pronounced to be a perfect scheme of election, for it has not been sufficiently tried. The election of 1801 threatened the tranquillity of the Union; and the difficulty that occurred in that case, in producing a constitutional choice, led to the amendment of the Constitution on this very subject; but whether the amendment be for the better or for the worse may be well doubted, and remains yet to be settled by the lights of experience. The Constitution says, that each state is to appoint electors in such a manner as the legislature may direct; and in some of the states the electors have been chosen by the legislature itself, in the mode prescribed by law. But it is to be presumed that there would be less opportunity for dangerous coalitions and combinations for party, or ambitious or selfish purposes, if the choice of electors was referred to the people at large; and this seems now to be the sense and expression of public opinion and the general practice.

4. Duration of Office. — The President, thus elected, holds his office for the term of four years, (a) a period, perhaps, reasonably long for the purpose of making him feel firm and independent in the discharge of his trust, and to give stability and some degree of maturity to his system of administration. It is certainly short enough to place him under a due sense of dependence on the public approbation. The President is re-eligible for successive terms, but in practice he has never consented to be a candidate for a third election, and this usage has indirectly established, by the force of public opinion, a salutary limitation to his capacity of continuance in office.

(a) Constitution, art. 2, sec. 1.

5. Support. — The support of the President is secured by a provision {281} in the Constitution, which declares, (a) that he shall, at stated times, receive for his services a compensation that shall neither be increased nor diminished during the period for which he shall have been elected; and that he shall not receive, within that time, any other emolument from the United States, or any of them. This provision is intended to preserve the due independence and energy of the executive department. It would be in vain to declare that the different departments of government should be kept separate and distinct, while the legislature possessed a discretionary control over the salaries of the executive and judicial officers. This would be to disregard the voice of experience and the operation of invariable principles of human conduct. A control over a man's living is, in most cases, a control over his actions. The Constitution of Virginia considered it as a fundamental axiom of government, that the three great and primary departments should be kept separate and distinct, so that neither of them exercised the powers properly belonging to the other. But without taking any precautions to preserve this principle in practice, it made the governor dependent on the legislature for his annual existence and his annual support. The result was, as Mr. Jefferson has told us, (b) that during the whole session of the legislature, the direction of the executive was habitual and familiar. The Constitution of Massachusetts discovered more wisdom, and it set the first example in this country, of a constitutional provision for the support of the executive magistrate, by declaring that the governor should have a salary of a fixed and permanent value, amply sufficient, and established by standing laws. Those state constitutions which have been made or amended since the establishment of the Constitution of the United States have generally followed the example which it has happily set them, in this and in many other instances; and we may consider it as one of the most signal blessings bestowed on {282} this country, that we have such a wise fabric of government as the Constitution of the United States constantly before our eyes, not only for our national protection and obedience, but for our local imitation and example.

6. Powers. — Having thus considered the manner in which the

(a) Art. 2, sec. 1.

(b) Notes on Virginia, 127.

President is constituted, it only remains for us to review the powers with which he is invested.

He is commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the service of the Union. (a) The command and application of the public force to execute law, maintain peace, and resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so characteristic of this department, that they have always been exclusively appropriated to it, in every well-organized government upon earth. (b) In no instance, perhaps, did the enlightened understanding of Hume discover less acquaintance with the practical science of government, than when he gave the direction of the army and navy, as well as all the other executive powers, to one hundred senators, in his plan of a perfect commonwealth. (c) That of Milton was equally chimerical and absurd, when, in his "Ready and Easy Way to establish a Free Commonwealth," he deposited the whole executive, as well as legislative power, in a single and permanent council of senators. That of Locke was equally unwise, for, in his plan of legislation for Carolina, he gave the whole authority, legislative and executive, to a small oligarchical assembly. (d) Such specimens {283} as these well justify the observation of President Adams, (a) "that a philosopher may be perfect master of Descartes and Leibnitz, may pursue his own inquiries into metaphysics to any length he pleases, may enter into the inmost recesses of the human mind, and make the noblest discoveries for the benefit of his species; nay, he may defend the principles of liberty, and the rights of mankind, with great abilities and success, and, after all, when called upon to produce a plan of legislation,he may astonish the world with a signal absurdity."

(a) Art. 2, sec. 2.

(b) Mr. Duer, in his Treatise on Insurance, i. 356, intimates that, in time of war, a special embargo for a definite period might be declared by the sole authority of the President. I do not perceive any sufficient ground for that opinion in respect to the legal exercise of such a power.

(c) Hume's Essays, i. 526.

(d) Mr. Locke's very complicated scheme of government, under the title of Fundamental Constitutions of Carolina, is inserted at large in Locke's Works, iii. 665-678. Those legislative labors of that great and excellent man perished unheeded and unregretted by all parties, after an experience of twenty-three years had proved them to be, in the words of Mr. Grahame, the historian, "utterly worthless and impracticable."

(a) Defence of the American Constitutions, i. Letter 54.

The President has also the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. (x) The Marquis Beccaria has contended that the

(x) The President's constitutional power of pardon is not invaded by the established practice whereby other officers may remit pecuniary penalties and forfeitures. The Laura, 114 U. S. 411.

A pardon may be constructive; as when the President issues a new commission to a military officer condemned by court-martial. See 6 A. G. Op. 123. So the governor's signature to a State statute which remits the sentence in a criminal case, amounts to a pardon. People v. Stewart, 1 Idaho N. S. 546.

Additional punishment for a second offence cannot be inflicted after pardon for the first offence. Edwards v. Com'th, 78 Va. 39. But the distinct recital in a pardon of one offence, such as conspiracy to defraud the revenue, does not affect a judgment of forfeiture for fraud upon the revenue. Ex parte Weimer, 8 Biss. 321; United States v. Cullerton, id. 166. A pardon does not, it seems, remit forfeitures if the rights of third persons have intervened. Kirk v. Lewis, 4 Woods, 100; see Fischel v. Mills, 55 Ark., 344; 15 L. B. A. 395, and note. An unconditional pardon does away with a statutory right to disbar an attorney upon conviction of a felony. Scott v. State (Texas), 25 S. W. Rep. 337. A qui tam action brought by a private prosecutor to recover the damages and forfeiture allowed by law is under his control and cannot be compromised or released by the government to his injury. United States v. Griswold, 24 Fed. Rep. 361.

A contract for legal services to secure a pardon is lawful. Moyer v. Cantieny, 41 Minn. 242.

A constitutional grant to the governor of the State of exclusive power to reprieve and pardon does not invalidate a statute enabling the courts to suspend sentence

during the convict's good behavior. People v. Court of Sessions, 141 N. Y. 288; see People v. Cummings, (Mich.) 14 L. R. A. 285, and note. A convict who is released upon a conditional pardon cannot be remanded to suffer his original imprisonment on the mere order of the governor who pardoned him, but is entitled to a hearing in court upon the question of performance or legal excuse, and also to a jury trial, limited, however, to the issue of his identity. State v. Wolfer, 53 Minn. 135; see Huff v. Dyer, 4 Ohio Cir. Ct. 595. As to conditional pardons, see also People v. Moore, 62 Mich. 496; Ex parte Kennedy, 135 Mass. 48; Ex parte Marks, 64 Cal. 29; United States v. Hinz, 35 Fed. Rep. 272; People v. Burns, 28 N. Y. Sup. 300; In re Whalen, 19 id. 915; State v. Barnes, 32 S. C. 14. The Secretary of the Treasury may remit pecuniary forfeitures. The Laura, 114 U. S. 411; 19 Blatch. 562. An unconditional pardon remits all penalties and forfeitures; it restores the convict's competency as a witness. Boyd v. United States, 142 U. S. 450; Logan v. United States, 144 U. S. 263; State v. Dodson, 16 S. C. 453; Hester v. Com'th, 85 Penn. St. 139; see State v. Kirshner, 20 Mo. App. 349; 25 L. J. 123; Martin v. State, 21 Tex. App. 1; or as a juror, Puryear v. Com'th, 83 Va. 51; the right of suffrage, Cowan v. Prowse, 93 Ky. 156; or disqualification to carry on certain kinds of business. Hay v. Justices, 24 Q. B. D. 561. So a fine paid to the sheriff, but not paid into the county treasury, should be refunded. Fischel v. Mills, 55 Ark. 344. See McKay v. Woodruff, 77 Iowa, 413. So the removal of disabilities by pardon or amnesty may revest the power to dispose of the reversion of a confiscated estate, if suspended during the

power of pardon does not exist under a perfect administration of law, and that the admission of the power is a tacit acknowledgment of the infirmity of the courts of justice. And where is the administration of justice, it may be asked, that is free from infirmity? Were it possible, in every instance, to maintain a just proportion between the crime and the penalty, and were the rules of testimony and the mode of trial so perfect as to preclude every possibility of mistake or injustice, there would be some color for the admission of this plausible theory. But, even in that case, policy would sometimes require a remission of a punishment strictly due, for a crime certainly ascertained. The very notion of mercy implies the accuracy of the claims of justice. An inexorable government, says Mr. Yorke, in his Considerations on the Law of Forfeiture, (b) will not only carry justice in some instances to the height of injury, but with respect to itself it will be dangerously just. The clemency of Massachusetts, in 1786, after an unprovoked and wanton rebellion, in not inflicting a single capital punishment, contributed, by the judicious manner

in which its clemency was applied, to the more firm {284} establishment of their government. And this power of

pardon will appear to be more essential when we consider

(b) Yorke on Forfeiture, 101.

disability. Illinois Central R. Co. v. Bosworth, 133 U. S. 92. But an office forfeited or a fine paid into the government treasury will not be restored. Osborn v. United States, 91 U. S. 474; Knote v. United States, 95 U. S. 149; 10 Ct. Cl. 397; 8 A. G. Op. 281. Thus, after a sentence of dismissal from the service against a military officer is carried into effect, the President cannot reinstate him, though he may remit the penalties inflicted by court-martial. Vanderslice v. United States, 19 Ct. Cl. 480. The President's proclamation of general amnesty in 1868 did not do away with the necessity of proof of loyalty in fact during the war of the Rebellion, when such loyalty is made a necessary element of proof in a special Act. Austin v. United States, 25 Ct. Cl. 437. A pardon for participation in the Rebellion does not, under U. S. Rev.

Stats., 3480, confer upon the Court of Claims jurisdiction of the pardoned's antebellum claim against the government. Hart v. United States, 118 U. S. 62. The governor cannot revoke a pardon after its delivery and acceptance, but a pardon procured by fraud or imposition practised upon the executive will, it seems, be held totally void by the courts. Rosson v. State, 23 Tex. App. 287; Ex parte Rosson, 24 id. 226; Hunnicutt v. State, 18 id. 498; Knapp v. Thomas, 39 Ohio St. 377; Ex parte Powell, 73 Ala. 517. The person pardoned may be re-arrested for the costs. Ex parte Boyd, 34 Kansas, 570; see Smith v. State, 6 Lea (Tram.) 637. The disability of a person who has served his full term of imprisonment may be removed by a pardon. Easterwood v. State (Texas), 31 S. W. Rep. 294.

that, under the most correct administration of the law, men will sometimes fall a prey to the vindictiveness of accusers, the inaccuracy of testimony, and the fallibility of jurors. Notwithstanding this power is clearly supported on principles of policy, if not of justice, English lawyers, of the first class and highest reputation, (a) have strangely concluded that it cannot exist in a republic, because nothing higher is acknowledged than the magistrate. Instead of falling into such an erroneous conclusion, it might fairly be insisted, that the power may exist with greater safety in free states than in any other forms of government; because abuses of the discretion unavoidably confided to the magistrate in granting pardons are much better guarded against by the sense of responsibility under which he acts. The power of pardon vested in the President is without any limitation except in the single case of impeachments. (b)l He is checked in that case

(a) Yorke on Forfeiture, 100; Blackst. Comm. iv. 397.

(b) There is no doubt that the power of pardon conferred on the President includes the power to pardon absolutely or conditionally. Op. Att.-Gen. i. 250; ii. 1034. The President may annex a condition to the pardon — as, for instance, that the guilty person should quit the United States, or join the navy — and if he does not comply with the condition, or breaks it, the pardon becomes null and void. If the culprit has not complied with the condition on which it was granted and accepted, he may be subjected to the operation of the original conviction and judgment. In England the king has the power, by the common law, to grant conditional pardons. The power of the Governor of New York to grant a conditional pardon, and the power of a criminal jurisdiction of the same, or of a higher degree, to arrest the party who has broken the condition wilfully, and to sentence and remand him to execution and punishment, on duly ascertaining his identity, was largely discussed in the case of the People v. Potter, in the First Circuit of New York. The New York Legal Observer for May, 1846, 177 [1 Parker Cr. R. 47]. The Revised Constitution of New York, of 1846, art. 4, sec. 5, grants this conditional power of pardon to the governor.

1Pardons. — To the same effect as note (b) are Ex parte Wells, 18 How. 307, and opinions of Sir A. Cockburn, Sir R. Bethell, and others, Forsyth's Cases & Op. on Const. Law, c. 3, pp. 75, 76; c. 17, p. 459; Greathouse's Case, 2 Abbott, U. S. 382; [Osborn v. United States, 91 U. S. 474; United States v. Six Lots of Ground, 1 Woods, 234; Arthur v. Craig, 48 Iowa, 264.] A partial pardon is authorized, in case of sentences to two kinds of punishment, the one pecuniary and the other corporal, by act of Feb. 20,

1863, 1, (U. S. Rev. Stats. 5330). 11 Op. Att.-Gen. 35.

The power to pardon may, it seems, be exercised at any time after the commission of an offence, as well before legal proceedings are taken, or while they are pending, as after conviction and judgment. Ex parte Garland, 4 Wall. 333, 380.

A pardon is not complete without delivery; and if not complete may be revoked by the successor of the President by whom it was granted. It has been held that a pardon was still revocable

from screening public officers, with whom he might possibly have formed a dangerous or corrupt coalition, or who might be his particular favorites and dependants.

The President has also the power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. (c)

Writers on government have differed in opinion as to the nature of this power, and whether it be properly, in the natural distribution of power, of legislative or executive cognizance. (x) As

(c) Art. 2, sec. 2.

when in the hands of the marshal. In re De Pay, 3 Benedict, 307, 10 Int. R. Rec. 34; 4 Am. Law Rev. 188. See Comm. v. Halloway, 44 Penn. St. 210; 11 Op. Att.-Gen. 35. [Lapeyre v. United States, 17 Wall. 191, held that a proclamation by the President relieving from certain penalties took effect from time of signing and sealing, and not from the time of publication. Four of the justices dissented. — B.] The pardoning power is said to be coextensive with the punishing power, and to be applicable to the remission of fines, penalties, and forfeitures, which are imposed by law as punishment for offences, 12 Op. Att.-Gen. 81; but not to embrace forfeitures not imposed as such punishment, 11 Op. Att.-Gen. 122. The President cannot remit a judgment against an individual not as a criminal, but as a

public debtor. 11 Op. Att.-Gen. 122, 124. Neither can he, after prize has been condemned for breach of blockade, remit the forfeiture. 10 Op. Att.-Gen, 452; 11 id. 445.

As to the effect of a pardon, it was said in Ex parte Garland, supra, to release the petitioner from exclusion from office for the acts covered by it, and so to render it unnecessary for him to take a test oath that he had not committed those offences. A pardon has been further held to relieve from forfeiture under the confiscation act of Aug. 6, 1861, so much of the property as would have accrued to the United States. Armstrong's Foundry, 6 Wall. 766; United States v. Padelford, 9 Wall. 531. See United States v. Athens Armory, 35 Ga. 344; St. Louis Street Foundry, 6 Wall. 770, a case arising un-

(x) Under the U. S. Constitution, treaties as well as statutes are the law of the land, and abrogate earlier State or Federal laws inconsistent therewith. 6 A. G. Op. 291; 13 id. 354; The Cherokee Tobacco Case, 11 Wall. 616; Kull v. Kull, 37 Hun, 476. Even an Indian treaty is part of the law of the. land. Leighton v. United States, 29 Ct. Cl. 288. An act of Congress prevails over a prior treaty, if it conflicts therewith. Edye v. Robertson, 112 U. S. 580; Whitney v. Robertson, 124 U. S. 190; Kelly v. Hedden, id. 196; Horner v. United States, 143 U. S. 570; Fong Yue Ting v. United States. 149

U. S. 698; Williams v. The Welhaven, 55 Fed. Rep. 80; North German Lloyd S. Co. v. Hedden, 43 id. 17. To have such an effect, the statute must admit of no other reasonable construction. Re Chin A On, 18 Fed. Rep. 506. But if the government sees fit to disregard a treaty, it cannot be enforced as a judicial question by the Federal Courts. Botiller v. Dominguez, 130 U. S. 238; Chae Chan Ping v. United States, 130 U. S. 581. Nor can the courts inquire whether a treaty was duly executed or procured by undue influence. Lelghton v. United States, 29 Ct. Cl. 288. In England, Orders in Council must be

treaties are declared by the Constitution to be a part of the supreme law of the land, and as by means of them new relations are formed and obligations contracted, it might seem to be more con-

der the President's amnesty of Dec. 8, 1863. Also United States v. Klein, 13 Wall. 128; 5 Am. L. T. 216. [But a pardon does not give any right to reclaim money which has been paid into the treasury or to third persons. Knote v. United States, 95 U. S. 149; Bragg v. Lorio, 1 Woods, 209. Comp. United States v. Thomasson, 4 Biss. 336. See generally, as to pardons, Blair v. The Commonwealth, 25 Grat. 850; Commonwealth v. Lockwood, 109 Mass. 323; State v. Foley, 15 Nev. 64. As to reprieve, see Sterling v. Drake, 29 Ohio St. 457. — B.] On

the other hand, when one who has committed certain offences against the United States is forbidden to vote by the state constitution, his pardon by the President will not restore him to the franchise. Ridley v. Sherbrook, 3 Coldw. (Tenn.) 569. But see 9 Op. Att.-Gen. 478.

The policy of allowing such a power to be exercised in the present manner is still a subject of discussion. Stephen, Crim. Law, c. 6, 224, 230; Lord Penzance's speech, and articles thereon, Times, April 5, 1870; Spectator, 1870, p. 459; Hansard, cc. 1147.

co-extensive with, and limited by the treaty, so that the municipal legislature may not be at variance with the terms upon which the two countries have agreed. Queen v. Wilson, 3 Q. B. D. 42.

A treaty is evidence of amity, but not conclusive. Valk v. United States, 29 Ct. Cl. 62; Leighton v. Same, id. 288.

The construction of a treaty by the executive is followed by the courts when consistent with the treaty itself. Castro v. De Uriarte, 16 Fed. Rep. 93.

If negotiations between the same parties result in two treaties concluded on the same day, they are in effect one instrument. Gray v. United States, 21 Ct. Cl. 340; Cushing v. United States, 22 id. 1.

Upon ratification a treaty takes effect by relation from the date of signing as to the nation's rights. United States v. Bridleman, 7 Fed. Rep. 894, 902; United States v. Martin, 14 id. 817, 820. Contra, as to individual rights. Bush v. United States, 29 Ct. Cl. 144. A treaty made by the President, but not ratified by a two-thirds vote of the Senate has no effect. United States v. Frelinghuysen, 2 Mackey, 299. An Indian treaty which is to be

effective when ratified by the President and Senate, does not take effect until signed by the President, though previously ratified by the Senate and accepted by the Indians. Shepard v. Northwestern Life Ins. Co., 40 Fed. Rep. 341.

A treaty is not wholly revoked by a later and narrower one which states that it is revoked "as all its provisions are incorporated" in the latter. In re Ross, 140 U. S. 453, 466; 44 Fed. Rep. 185. But a new treaty which covers the entire subject-matter of an earlier treaty, impliedly repeals the latter. La Republique Francaise v. Schultz, 57 Fed. Rep. 37. The Creek nation, by entering into a treaty with the Confederate government and engaging in war with the United States, abrogated its treaty with that nation made in 1856, and the obligation of the United States to individual Creeks was thereby terminated. Connor's Case, 19 Ct. Cl. 675.

The U. S. Rev. Stats. 5519, relating to conspiracies to deprive persons of the equal protections of the laws, is unconstitutional as a provision for the punishment of a conspiracy, within a State, to deprive an alien of rights guaranteed to him therein

sonant to the principles of republican government to consider the right of concluding {285} specific terms of peace as of legislative jurisdiction. This has generally been the case in free governments. The determinations respecting peace, as well as war, were made in the public assemblies of the nation at Athens and Rome, and in all the Gothic governments of Europe, when they first arose out of the rude institutions of the ancient Germans. On the other hand, the preliminary negotiations which may be required, the secrecy and despatch proper to take advantage of the sudden and favorable turn of public affairs, seem to render it expedient to place this power in the hands of the executive department. The Constitution of the United States has been influenced by the latter more than by the former considerations, for it has placed this power with the President, under the advice and control of the Senate, who are to be considered, for this purpose, in the light of an executive council. The President is the constitutional organ of communication with foreign powers, and the efficient agent in the conclusion of treaties; but the consent of two thirds of the senators present is essential to give validity to his negotiations. To have required the acquiescence of a more numerous body would have been productive of delay, disorder, imbecility, and probably, in the end, a direct breach of the Constitution. The history of Holland shows the danger and folly

by a treaty of the United States. Baldwin v. Franks, 120 U. S. 678.

Vested rights of property guaranteed by treaty cannot be taken away by act of Congress or the political departments of the Government. Eastern Cherokees' Case, 20 Ct. Cl. 449.

The United States is not liable on an implied assumpsit for money had and received under a treaty in its sovereign capacity, as indemnity, from another sovereign power, as in the case of the Alabama claims. United States v. Weld, 127 U. S. 51; Great Western Ins. Co. v. United States, 19 Ct. Cl. 206; Kingsbury v. Mattocks, 81 Maine, 310.

The right given by treaty for foreigners, such as the Chinese, to live in the United States carries with it the implied right to labor here for a living, and State laws or

constitutions which curtail such right are void as an interference with the treaty-making power. Baker v. Portland, 2 Fed. Cas. 472; In re Tiburcio Parrott, 1 Fed. Rep. 481.

A treaty provision that the citizens of the foreign country shall enjoy here the same protection as native citizens with respect to labels and trade-marks, gives no right here to a foreign citizen to a trademark which he has acquired in his own country. Richter v. Reynolds, 59 Fed. Rep. 577.

By the treaty of 1867 with Russia, ceding Alaska to the United States, the latter acquired the immovable buildings erected by the Russian-American Company upon land there owned by the Russian government. Kinkead v. United States, 150 U. S. 483.

of placing too much limitation on the exercise of the treaty-making power. By the fundamental charter of the United Provinces peace could not be made without the unanimous consent of the provinces; and yet, without multiplying instances, it is sufficient to observe, that the immensely important and fundamental treaty of Munster, in 1648, was made when Zealand was opposed to it; and the peace of 1661, when Utrecht was opposed. So feeble are mere limitations upon paper, — mere parchment barriers, when standing in opposition to the strong force of public exigency.

The Senate of the United States is a body of men most wisely selected for the deposit of this power. They are easily assembled, are governed by steady, systematic {286} views, feel a due sense of national character, and can act with promptitude and firmness.

The question whether a treaty, constitutionally made, was obligatory upon Congress, equally as any other national engagement would be, if fairly made by the competent authority, or whether Congress had any discretionary power to carry into effect a treaty requiring the appropriation of money, or. other act to be done on their part, or to refuse it their sanction, was greatly discussed in Congress in the year 1796, and again in 1816. The House of Representatives, at the former period, declared by resolution, that when a treaty depended for the execution of any of its stipulations on an act of Congress, it was the right and duty of the House to deliberate on the expediency or inexpediency of carrying such treaty into effect. It cannot be mentioned at this day, without equal regret and astonishment, that such a resolution passed the House of Representatives on the 7th of April, 1796. But it was a naked abstract claim of right, never acted upon; and Congress shortly afterwards passed a law to carry into effect the very treaty with Great Britain which gave rise to that resolution. President Washington, in his message to the House of Representatives of the 30th of March, 1796, explicitly denied the existence of any such power in Congress; and he insisted that every treaty duly made by the President and Senate, and promulgated, thenceforward became the law of the land.

If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the government, or upon

the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law,and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but without such concurrence, a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract made by authority of law. The argument in favor of the binding and conclusive efficacy {287} of every treaty made by the President and Senate is so clear and palpable, that it has probably carried very general conviction throughout the community; and this may now be considered as the decided sense of public opinion. This was the sense of the House of Representatives, in 1816, and the resolution of 1796 would not now be repeated. (a)l

The President is the efficient power in the appointment of the officers of government. He is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors, or public ministers and consuls, the judges of the Supreme Court, and all other officers whose appointments are not otherwise provided for in the Constitution; but Congress may vest the appointment of

(a) The treaty-making power is necessarily and obviously subordinate to the fundamental laws and constitution of the state, and it cannot change the form of the government, or annihilate its constitutional powers. Story, Comm. on the Constitution, iii. 1502.

1 Judge McLean was of a different opinion from the author, Turner v. American Baptist Miss. Union, 5 McLean, 344, and the point is still open and debated between the two houses of Congress.

Congress may repeal a treaty so far as it is municipal law, provided its subject-matter is within the legislative power of Congress. Taylor v. Morton, 2 Curt. 454; The Cherokee Tobacco, 11 Wall. 616, 621; Ropes v. Clinch, 8 Blatchf. 304. But Congress has no power, it is said, to settle the rights under treaties, except in cases purely political. The construction of them is the peculiar province of the judiciary, when a case shall arise between individuals. Wilson v.

Wall, 6 Wall. 83, 89. On the other hand, the courts of the United States cannot question the power of the other party to a treaty to do certain acts when he has been treated as having the power by the President and Senate. Doe v. Braden, 16 How. 635; Fellows v. Blacksmith, 19 How. 366; see p. 330, n. 1.

State laws, inconsistent with a treaty constitutionally concluded and ratified, are thereby abrogated. 6 Op. Att.-Gen. 291; 8 Op. Att.-Gen. 411; Hamilton v. Eaton, Martin, N. C. 2d part, 1 U. S. C. C. 1792; [Hauenstein v. Lynham, 100 U. S. 483; Parrott's Chinese Case, 6 Saw. 349.] See, as to the sacrifice of private rights by treaty, ante, 167.

inferior officers in the President alone, in the courts of law, or in the heads of departments. (b)

The appointment of the subordinate officers of government concerned in the administration of the laws belongs, with great propriety, to the President, who is bound to see that the laws are faithfully executed, and who is generally charged with the powers and responsibility of the executive department. (x) The associa-

(b) Art. 2, sec. 2. [By statute of Jan. 16, 1883 (25 St. at L. 403), provision is made for the appointment of three civil service commissioners. It is made the duty of such commissioners to aid the President, as he may request, in preparing rules providing for 'open competitive examinations for testing the fitness of applicants for the public service now classified, or to be classified hereunder." All offices so classified are to be filled "by selections according to grade from among those graded highest as the results of such competitive examinations." Appointments are to be apportioned among the states and territories and the District of Columbia, according to population. There is to be a period of probation before any appointment becomes absolute. It is made the duty of heads of departments and of heads of offices, on request by the President, to classify the offices over which they are heads, in a manner prescribed in the act. It is further provided that, after six mouths from the passage of the act, all appointments and promotions, with specified exceptions, within said classes, shall be by means of such competitive examinations. — B.]

(x) The President's constitutional duty to see that the laws be faithfully executed, includes the power, through the attorney general, to direct a U. S. marshal to attend and protect from threatened injury a judge of the U. S. Supreme Court while discharging his official duties. In re Neagle, 135 U. S. 1.

The President may act through the heads of the executive departments, who are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, have always been held to be presumably his acts. Runkle v. United States, 122 U. S. 543, 557; United States v. Badeau, 31 Fed. Rep. 697, 699. So long as the control of the subject-matter has not been parted with by the political department, the judiciary will not compel it to act. United States v. Blaine, 139 U. S. 306. A claimant's bill in the nature of interpleader, or to quiet title to an international award held by the govern-

ment, does not conflict with the diplomatic authority vested in the President by the Constitution. United States v. La Abra S. M. Co. 29 Ct. Cl. 432.

In general, Equity will not interfere by injunction or mandamus with any governmental matters, such as the lawful exercise of the police power by municipal officers, or the public duties of any department of the government. New Orleans v. Paine, 147 U. S. 261; Chicago P. S. Exchange v. McClaughry, 148 Ill. 372; Hilligoss v. Griuslade, 32 Ill. App. 45. Mandamus lies to compel an executive officer of the government to perform a ministerial duty, but he will not be thus interfered with in the exercise of his ordinary official duties, even when those duties require an interpretation of the law. United States v. Black, 128 U. S. 40; see Bayard v. United States, 127 U. S. 246; United States v. Raum, 135 U. S. 200; In re Penn. Co., 137 U. S. 451; United States v. Brown, 41 Fed. Rep. 481; post, p. 321. Where

tion of the Senate with the President, in the exercise of this power, is an exception to the general delegation of executive authority; and if he were not expressly invested with the exclusive right of nomination in the instances before us, the organization of this department would be very unskilful, and the government degenerate into a system of cabal, favoritism, and intrigue. But the power of nomination is, for all the useful purposes of restraint, equivalent to the power of appointment. It imposes upon the President the same lively sense of responsibility, and the same indispensable necessity of meeting the public approbation or censure. This, indeed, forms the ultimate security that men in public stations will dismiss interested considerations, and act with a steady, zealous, and {288} undivided regard for the public welfare. The advice and consent of the Senate, which are requisite to render the nomination effectual, cannot be attended, in the nature of the case, with very mischievous effects. Having no agency in the nomination, nothing but simple consent or refusal, the spirit of personal intrigue and personal attachment must be pretty much extinguished, from a want of means to gratify it. On the other hand, the advice of so respectable a body of men will add still further inducements to a coolly reflected conduct in the President, and will be at all times a check on his own misinformation or error. (a)l

(a) It was settled, in the case of Marbury v. Madison, 1 Cranch, 137, that when a person has been nominated to the Senate for office, by the President, and the Pres-

1 See, as to the power of removal,, post, 311, n. 1.

the executive has not exhausted its power, as in the case of withholding payment of a claim made under a treaty, pending an investigation of fraud as to the claim, which involves the exercise of judgment and discretion, mandamus cannot issue to compel action by the head of a department. Frelinghuysen v. Key, 110 U. S. 63; United States v. Blaine, 139 U. S. 321. When a Federal statute delegates to an officer or tribunal full jurisdiction over a subject in which the United States are interested, the exercise of authority or discretion within the power thus conferred is conclusive, in the absence of fraud.

United States v. California & Oregon Land Co., 148 U. S. 31, 43; United States v. Lamont, 2 App. D. C. 532. State officials, acting under unconstitutional state legislation, may be controlled by injunction or mandamus. In re Ayers, 123 U. S. 443; see Yale College v. Sanger, 62 Fed. Rep. 177. But a Federal court cannot inquire into the legal adoption of a duly declared amendment of the State constitution. Smith v. Good, 34 Fed. Rep. 204.

The U. S. Rev. Stats., 1768, excepts judges of the U. S. courts from the power thereby conferred upon the President to suspend civil officers appointed with the

The remaining duties of the President consist in giving information to Congress of the state of the Union, and in recommending to their consideration such measures as he shall judge necessary or expedient. (x) He is to convene both houses of Congress, or either of them, on extraordinary occasions, and he may adjourn them, in case of disagreement. He is to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session. (b) He is to receive ambassadors and other public ministers, to commission all the officers of the United States, and to take care that the laws be faithfully executed. (c)

ident has received the advice and consent of the Senate to the appointment, and has signed the commission, the appointment is final and complete, and the person appointed is entitled to the possession of the commission, and to hold the office until constitutionally removed. The principle settled in that case was, that the official acts of the heads of the executive department, as organs of the President, which are of a political nature, and rest, under the Constitution and laws, in executive discretion, are not within judicial cognizance. But when duties are imposed upon such heads, affecting the rights of individuals, and which the President cannot lawfully forbid, — as, for instance, to record a patent, or furnish the copy of a record, — the person, in that case, is the officer of the law, and amenable thereto in the ordinary course of justice. Ib. 170, 171.2

(b) In the official opinion given by Mr. Win, as Attorney-General of the United States, to the President, in 1823, he considered that, according to the reason and spirit of the Constitution, the President has the rightful power to supply vacancies in office existing when the appointment is made during the recess of the Senate, though the vacancy did happen before the adjournment of the Senate. The instances he gives of the necessity of such a construction and power are those in which it was nearly or quite impossible to have sent in a nomination before the adjournment of the Senate. Op. Att.-Gen. i. 476.

(c) Art. 2, sec. 2, 3. It was considered, in the message of President Jackson to Congress, of the 21st December, 1836, in relation to Texas, to be an unsettled question to whom, under the government of the United States, strictly belonged the power of

2Post, 322, n. 1.

consent of the Senate; but this exception does not apply to the courts of the territories, or of Alaska. McAllister v. United States, 141 U. S. 174; 22 Ct. Cl. 318; Wingard v. United States, 141 U. S. 201. As to his power to remove territorial judges, see also 24 Am. L. Rev. 686.

(x) It appears to be competent for Congress to make the revival of a statute depend upon the proclamation of the President, showing the ascertainment by

him of the fact that the edicts of certain nations has been so revoked or modified that they did not violate the neutral commerce of the United States. "The same principle would apply in the case of the suspension of an act upon a contingency to be ascertained by the President, and made known by his proclamation." Harlan, J., in Field v. Clark, 143 U. S. 649, 683, citing The Brig Aurora, 7 Cranch, 382.

The propriety and simplicity of these duties speak for themselves. The power of receiving foreign ministers includes in it the power to dismiss them, since he alone is the organ of communication with them, the representative of the people in all diplomatic negotiations, and accountable to the community not only for the execution of the law, but for the competent qualifications and conduct of foreign agents.

7. His Responsibility. — In addition to all the precautions which

have been mentioned to prevent abuse of the executive trust in

the mode of the President's appointment, his term of office,

and the {289} precise and definite limitations imposed upon the

exercise of his power, the Constitution has also rendered . him directly amenable by law for mal-administration. The inviolability of any officer of government is incompatible with the republican theory, as well as with the principles of retributive justice. The President, Vice-President, and all civil officers of the United States may be impeached by the House of Representatives for treason, bribery, and other high crimes and misdemeanors, and upon conviction by the Senate removed from office. (a) If, then, neither the sense of duty, the force of public opinion, nor the transitory nature of the seat, are sufficient to secure a faithful discharge of the executive trust, but the President will use the authority of his station to violate the Constitution or law of the land, the House of Representatives can arrest him in his career, by resorting to the power of impeachment.1 (x)

I have now finished a general survey of the office of President of the United States; and, considering the nature and extent of

originally recognizing a new state. It was either necessarily involved in some of the great powers given to Congress, or in that given to the President and Senate, to form treaties with foreign powers, and to appoint ambassadors and other public ministers, or in that conferred upon the President to receive ministers from foreign nations. It was admitted to be most expedient, that the recognition of the independence of a newly assumed state should be left to the decision of Congress, and especially when the exercise of the power would probably lead to war. (a) [Art. 1, sec. 2, 5, sec. 3, 6, and] art. 2, sec. 4.

1Post, 343, n. 1.

(x) In England, an impeachment by the Commons in Parliament cannot be defeated by the pardon of the sovereign,

or by the prorogation or dissolution of Parliament. See Pike's Constitutional History of the House of Lords, p. 233.

the powers necessarily incident to that station, it was difficult to constitute the office in such a manner as to render it equally safe and useful, by combining in the structure of its powers a due proportion of energy and responsibility. The first is necessary to maintain a firm administration of the law; the second is equally requisite, to preserve inviolate the liberties of the people. The authors of the Constitution appear to have surveyed the two objects with profound discernment, and to have organized the executive department with consummate skill.