sion in the constitution, which declares," that he shall, at stated times, receive for his services a compensation, that shall neither be increased or 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, 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

a Art. 2. sec, 7. VOL. I.

h Notes on Virginia, p. 127. 36

Powers of the President.

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.) Having thus considered the manner in which the 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. The command and application of the public force to execute the 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 perfect 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 bis plan of legislation for Carolina, he gave the whole authority, legislative and executive, to a small oligarchical assembly. Such speci

a Art. 2. sec. 2.
6 Hume's Essays, vol. 1. p. 526.

c 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. 3. 6C5–678. 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."

mens 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 you please, 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 course of justice. And where is the administration of justice, it may be asked, that is free from infirmity ? Were it possible, in every instănce, 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 government, says Mr. Yorke, in his Considerations on the Law of Forfeiture, 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

a Defence of the American Constitutions, vol. 1. letter 54. 6 P. 101.

establishment of their government. 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, 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 forins 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


limitation, except in the single case of impeachments. 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 favourites

and dependants. Treaty pow

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."

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 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, to consider the right of concluding


Blacks. Com, vol. 4. 390.

a Yorke on Forf. 100. b Art. 2. sec. 2.


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 Ger

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 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 in 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,

« ForrigeFortsett »