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 *280 provision as the wisdom of man could have 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 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 * this country, that * 282 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.

in the Constitution, which declares, (a) * 281

6. Powers.

Having thus considered the manner in which the (b) Notes on Virginia, 127.

(a) Art. 2, sec. 1.

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 assem*283 bly. (d) Such specimens 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

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 (Tenn.) 637.

The disability of a person who has served his full term of imprisonment may be removed by a pardon. Easterwood r. State (Texas), 31 S. W. Rep. 294.