treaty-making power; the appointing power, and the pardoning 165. power. Bates on Habeas Corpus, 5th July, 1861. are the powers? SEC. II. [1.] The President shall be commander-in- What chief of the army and navy of the United States, and President's of the militia of the several States, when called into 124-178. the actual service of the United States; he may 130. require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and par- 40, 191. dons for offenses against the United States, except in cases of impeachment. 177. 194. 175. "COMMANDER-IN-CHIEF."-This was to give the exercise Why comof power by a single hand. See 1 Kent's Com. Lect. 13, p. 283; 3 mander? Elliot's Debates, 103; Story's Const. § 1491, 1492; Rawle's Const. ch. 20, p. 193. The power may be delegated. Id. 5 Marshall's Life of Washington, ch. 8, pp. 583, 584, 588. person? The President is not obliged to take, personally, the command of Must he the militia, when called into the service of the general government, command in but he may place them under the command of officers of the army of the United States, to whom, in his absence, he may delegate the powers vested in him by the Constitution. Any officer of the army may, therefore, be required, by orders emanating from the President, to perform the appropriate duties of his station in the militia, when in the service of the United States, whenever the public interest shall so require. But this power must be exercised in strict accordance with the right of appointment of militia officers, which is expressly reserved to the States. 2 Opin. 711-12. See 2 Story's Coust. § 1490-2. As commander-in-chief, the President has the right to decide what officer shall perform any particular duty, and, as supreme executive magistrate, he has the power of appointment. Congress could not take away this power. 9 Op. 468, 518. But this power is to be used only in the manner prescribed by the legislative department. 9 Op. 518. 165. President The President has unquestioned power to establish rules for the What rules government of the army, and the Secretary of War is his regular may the organ to administer the military establishment of the nation, and establish? rules and orders promulgated through him must be received as the acts of the executive, and, as such, are binding on all within 129, 134. the sphere of his authority. (United States v. Eliason, 16 Pet. 291.) But this power is limited, and does not extend to the repeal or contradiction of existing statutes, nor to the making of provisions of a legislative nature. (6 Opin. 10.) Bates, 18th April, 1861. But the powers of the President over the militia, only commence when those of the governors cease; that is, when the What of militia are called into the actual service of the United States. Id. The President cannot establish a bureau of militia. Id. 176. "OPINIONS IN WRITING."-This practice commenced with opinions in the administration of President Washington. The depository of writing? such opinions has generally been in the State department. The attorney-general frequently gives opinions to the President, as the law officer of the government, which are published in the current series. What are the Depart who are the ments, and cabinet? Define reprieves? Define pardon? When may the President pardon? The "DEPARTMENTS are now called the State, the Treasury, the War, the Navy, the Post-office, the Attorney-General's, and the Interior departments. The heads of these are known as the President's advisers or cabinet officers. Their respective duties are defined by statutes, which will be found collected under appropriate heads in Mr. Brightly's Digest. The opinions are more frequently given in secret cabinet councils. But Mr. Jefferson thought the separate opinions in writing more consistent with the Constitution. (4 Jeff.'s Corresp. 143, 144.) Story's Const. § 1493, note 3. Upon the reconstruction laws, President Johnson took the opinions in council; and he seems to have authorized their publication. 177. "REPRIEVES."-The withdrawing of a sentence of death for an interval of time, whereby the execution is suspended. 4 Bl. Com. 394; Burrill's Law Dic., REPRIEVE; Ex parte Wells, 18 How. 307, 315; Story's Const. 3d Ed. p. 305, § 1505. The power is not to pardon, but to grant reprieves and pardons. Ex parte Wells, 18 How. 316. "AND PARDONS."-In common parlance, forgiveness, release, remission. Ex parte, Wells, 18 How. 307. In law every pardon has its particular denomination. They are general, special or particular, conditional or absolute, statutory, not necessary in some cases, and in some grantable of course. Id. Here it is meant, that the power is to be used according to law; that is, as it had been used in England, and these States when they were colonies. Id. That is, according to the principles of the English common law, at the time of the adoption of this Constitution. (United States v. Wilson, 7 Pet. 162.) Ex parte Wells, 18 How. 309. Hence, when the words "to grant pardons' were used in the Constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. Id.; Cathcart v. Robinson, 5 Pet. 261, 280; Flavel's Case, 8 Watts and Sergeant, 197. A pardon is said by Lord Coke to be a work of mercy, "whereby the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offense, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical." (3 Inst. 233.) Ex parte Wells, 18 How. 311, 312. The whole subject discussed. Id. He may pardon as well before trial and conviction as afterward. 6 Opin. 20. (See the proclamations of amnesty in relation to the rebellion.) And after the expiration of the imprisonment which forms a part of the sentence. Stetler's Case, Phila. R. 302. He may grant a conditional pardon; Ex parte Wells, 18 How. 307; 1 Opin. 341; provided the condition be compatible with the genius of our Constitution and laws. Id. 482. Where the condition is such that the government has no power to carry it into effect, the pardon will be in effect unconditional. 5 Id. 368. See Flavell's Case, 8 W. & S. 197; United States v. Wilson, 7 Pet. 161; People In what v. Potter, 1 Parker C. R. 47. The pardoning power includes that cases? of remitting fines, penalties, and forfeitures, under the revenue laws; 2 Pet. 329; the laws prohibiting the slave-trade; 4 Id. 573; fines imposed on defaulting jurors, 3 Id. 317; 4 Id. 458; for a contempt of court; 3 Id. 622; and in criminal cases; Id. 418; even treason, amnesty proclamations, and warrants. And the same power is possessed over a judgment, after security for its payment shall have been given, as before. Id. But the President has no power to remit the forfeiture of a bail-bond. 4 Id. 144. Nor, it seems, can he, by a pardon, defeat a legal interest or right which has become vested in a private citizen; as, for example, the vested right of an officer making a seizure. United States v. Lancaster, 4 Wash. C. C. 64; 4 Opin. 376; 6 Id. 615; and see 5 Id. 532, 579. The grant of the pardoning power neither requires nor authorizes the President to re-examine the case upon new facts; nor to grant a pardon upon the assumption of the new facts alleged. 1 Opin. 359. A pardon is a private though official act; it must be Must the delivered to and accepted by the criminal, and cannot be noticed by pardon be accepted? the court, unless brought before it judicially by plea, motion, or otherwise. United States v. Wilson, 7 Pet. 150. The President alone can pardon offenses committed in a territory in violation of acts of Congress 7 Opin. 761. He has power to order a nolle prosequi in any stage of a criminal proceeding, in the name of the United States. 5 Id. 729. He pardoned the rebels upon their taking the oath of amnesty, with certain exceptions, by general proclamation. The warrants issued to those within special exceptions were all conditional. 231. 232. The power to pardon is unlimited, with the exceptions stated. What is the It extends to every offense known to the law, and may be exercised extent of the at any time after its commission, either before legal proceedings power? are taken, or during their pendency, or after conviction and judg. ment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude Can Confrom its exercise any class of offenders. The benign prerogative of gress limit the pardon? mercy cannot be fettered by any legislative restrictions. Ex parte Garland, 4 Wall. 380. A pardon reaches both the punishment prescribed for the offense What does and the guilt of the offender; and when the pardon is full, it re- the pardon reach? leases the punishment and blots out the existence of the guilt; so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. Ex parte Garland, 4 Wallace, 380, 381. This court is obliged to conform to these principles. Judge Duval, in the case of the United What is the power of the Presi dent as to appointments? 179. There is only one States v. Devine, Texas, June Term, 1867. The pardon produced by the petitioner is a full pardon "for all offenses, from participation, direct or implied, in the rebellion." This relieves him from all penalties and disabilities attached to the offense of treason, committed by his participation in the rebellion. So far as that offense is concerned, he is thus placed beyond the reach of punishment of any kind. (Ex parte Garland, 4 Wallace, 381.) The United States v. Devine, before Judge Duval, in the United States Circuit Court for the Western District of Texas, June Term, 1867. The expurgatory oath required by attorneys cannot affect an attorney, who had been previously such of the court, after pardon. Congress cannot inflict punishment beyond the reach of executive clemency. Ex parte Garland, 4 Wallace, 381. The remission of a penalty after it has been paid has no effect. Edwin M. Stanton, Attorney-General, 3d Jan. 1861. See 1 Kent's Com. 11 Ed. Part II. Lect. 13, p. 283-285 and notes; Story's Const. § 1494, 1504; Federalist, No. 74; 2 Wilson's Law Lect. 198-200; 2 Elliot's Debates, 366; Rawle's Const. ch. 17, P. 178. [2.] He shall have power, by and with the advice and consent of the Senate, to make treaties, provided treaties and two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. 183. How is the advice usually given? 178. "HE SHALL HAVE POWER, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO-THIRDS OF THE SENATORS PRESENT CONCUR." This "advice and consent" is usually given after the treaty, or appointment is made and signed by the President. The work is then sent to the Senate, to ask the "CONCURRENCE of two-thirds." But it is in the option of the President to ask the advice and con sent of the Senate in advance, and it was so asked by President Polk upon the ratification of the Treaty with Great Britain, in 1846, relative to Oregon. See 5 Marshall's Life of Washington, ch. 2, p. 223; Executive Journal, 11th Aug. 1790, pp. 60, 61; Rawle's Const. ch. 7, pp. 63, 64; Story's Const. § 1523; see Senate Journal and Debates of July, 1846, upon the Oregon Treaty. "MAKE TREATIES."-[Foedus.] An agreement between two or What is a more independent States. Brande. An agreement, league, or con- treaty? tract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns, or the supreme power of each State. Webster's Dic., TREATY; Burrill's Dic., TREATY. See Halleck's International Law, ch. 34, pp. 189, 844. A treaty is, in its nature, a contract between two nations; not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. Foster & Elam v. Neilson, 2 Peters, 314. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, wherever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court. Id. The power extends to every kind of treaty. Story's Const. § 1508. But the power cannot be exercised to override other parts of the Constitution, and to destroy the fundamental principles of the government. Id.; Woodeson's Elem. of Jurisprudence, 31; 4 Jeff's Corresp. 2, 3, 498; Rawle's Con-t. 63-75. See the power discussed. Story's Const. § 1508, 1523; Ware v. Hylton, 3 Dall. 272–276. 199. 199. 240. 184. 179. "HE SHALL NOMINATE."-The word as here used means Define to recommend, in writing to the Senate, the name of an appointee nominate? for confirmation. It is in this form the "advice of the Senate" is asked. This is the sole act of the President, and is voluntary. Marbury v. Madison, 1 Cr. 137; 1 Peter's Cond. 270; Story's Const. § 1548. But the practice, when the Senate is not in session (and I think sometimes when it is), is, that the President fills vacancies, and the appointee qualifies and enters upon the duties of his office. In such cases, the NOMINATION is not confined to the PROVISIONAL appointee; but the President may and often does appoint another. See Stanbery on appointments to office. 14–19. "AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE Appoint? SHALL APPOINT."-It will be observed that, as in the nomination, the duty is imperative-"shall nominate," "shall appoint." This power to fill vacancies is in the President, with the assent of the Senate, whilst that body is in session, and in the President alone when the Senate is not in session. There is no reason upon |