Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

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, 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 Con-
stitution of the United States constantly before our eyes, not
only for our national protection and obedience, but for our
local imitation and example.

the

Powers of

(6.) Having thus considered the manner in which the President is constituted, it only remains for us to review the dent. powers with which he is invested.

He is commander and 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.b 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 characteristical of this department, that they have always been exclusively appropriated to it, in every well organized government upon earth. 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 per

Presi

[blocks in formation]

c Mr. Duer, in his Treatise on Insurance, vol. 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.

fect commonwealth. 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.b *283 Such specimens *as these well justify the observation of President Adams,c "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."

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 colour 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

Hume's Essays, vol. i. p. 526.

b Mr. Locke's very complicated scheme of government, under the title of Fundamental Constitutions of Carolina, is inserted at large in Locke's Works, vol. iii. pp. 665-678. Those legislative labours 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."

[blocks in formation]

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 government. *284 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 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.

a Yorke on Forfeiture, p. 101.

b Yorke on Forf. 100. Black's Com, vol. iv. p. 390.

He

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, vol. i. 250. 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 NewYork, 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, p. 177. The Revised Constitution of New-York of 1846, art. 4, sec. 5, grants this conditional power of pardon to the Governor.

power.

Treaty

[Part II.

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 favourites 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.a

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 go*285 vernment, to consider the right of concluding *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 favourable 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

Art. 2. sec. 2.

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 *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 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 VOL. I.

20

« ΠροηγούμενηΣυνέχεια »