The President has also the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. 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," (a) 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 * establishment of their govern- 284 ment. And this power of pardon will appear to be more essential, when we consider, 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, (b) 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 par

(a) Yorke on Forfeiture, p. 104.

(b) Yorke on Forf. 107. Blackst. Com. vol. iv. p. 393.

dons, 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. (a) He is checked in that case 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.

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

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. As 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 consonant to the principles of republican gov

(a) There is no doubt that the power of pardon conferred on the President includes the power to pardon absolutely or conditionally. Opinions of the Attorneys-General, March 30, 1820, vol. i. 250, Feb. 25, 1836, vol. 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 discussed in the case of The People v. Potter, in the First Circuit of New York. The New York Legal Observer for May, 1846, p. 177, reported 1 Parker, C. R. 47. The Revised Constitution of New York, of 1846, art. 4, sec. 5, grants this conditional power of pardon to the governor. (b) Art. 2, sec. 2.

1 By statute 6 Geo. III. c. 12, the prerogative of commuting the sentence of death to transportation, in the case of capital felonies, was conferred on the crown. In the case of William Smith O'Brien, convicted of high treason in 1849, it was doubted whether the power extended to high treason; and a declaratory statute was passed, sanctioning the commutation. 12 & 13 Vict. c. 27.

The constitutional power of the President to grant a conditional pardon, offering to commute the sentence of death to that of imprisonment for life is affirmed by the Supreme Court, McLean, J., dissenting. Ex parte Wells, 18 How. U. S. 307.

ernment, to consider the right of concluding specific 285 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 of placing too much limitation on the exercise of the treatymaking 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

views, feel a due sense of national character, and can * 286 act with promptitude and firmness.

The question whether a treaty, constitutionally made, was obligatory upon congress, equally as any other national engage

ment 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 * 287 of the binding and conclusive efficacy 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)

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(a) The treaty-making power is necessarily and obviously subordinate to the funda

nomination

The President is the efficient power in the appoint- President's ment of the officers of government. He is to nomi- power of nate, and, with the advice and consent of the senate, to office. 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; bút congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments. (a) 1

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. The association 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

* undivided regard for the public welfare. The advice *288

mental laws and constitution of the state, and it cannot change the form of the gov ernment, or annihilate its constitutional powers. Story's Com. on the Constitution, vol. iii. seç. 1502.2

(a) Art. 2, sec. 2.

1 The power of the President to remove a territorial judge is discussed in United States v. Guthrie, 17 How. U. S. 284.

2 When the concurrence of congress is necessary to give effect to a treaty, it is not the law of the land until that concurrence is given. The treaty-making power cannot bind or control the power of the legislature. Turner v. Am. Baptist Miss. Union, 5 McLean, 344. Congress may repeal a treaty so far as it is a municipal law, if it affect subjects which are within its legislative power. Taylor v. Morton, 2 Curtis, C. C. 454.