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.

His term of office.

(4.) 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 reëligible 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.

His salary. (5.) The support of the President is secured by a *281 provision in the constitution, which declares, (b) 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

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

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, (a) 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 we have * 282 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.

Powers of

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

dent.

He is commander in chief of the army and navy of the United States, and of the militia of the several states, when

(a) Notes on Virginia, p. 127.

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 characteristical 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, legisla

tive and executive, to a small oligarchical assembly. (d) 283 Such specimens * as these well justify the observation of

President Adams, (e) " 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, 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.

(c) Hume's Essays, vol. i. p. 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, vol. iii. pp. 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."

(e) Defence of the American Constitutions, vol. 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. 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 acknowl edgment 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. This 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 Forfeiture, p. 107. Blackst. Com, vol. iv. p. 397.

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 government,

(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.1 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.