in relation to subjects which appertain to their respective duties," 18 and in general, an order, determination, or rule emanating from the head of a department, in a matter within the scope of his authority and his duties, is in contemplation of law the act or determination of the President.19 For example, "in all our foreign relations, the President, in performing executive acts imposed by treaty stipulations or otherwise, acts through the department of state and under its official seal; and when a warrant or mandate is signed by the secretary of state, it is the act of the President through the proper executive department of the government." 20 So, again, "the secretary of war is the regular constitutional organ of the President for the administration of the military establishment of the nation; and rules and orders publicly promulgated through him must be received as the acts of the executive, and as such be binding upon all within the sphere of his legal and constitutional authority." 21 But while the heads of the executive departments are under the direction and control of the President in respect to such duties as involve political action and the exercise of judgment and discretion, and cannot be controlled or coerced by congress or the courts, this principle must not be carried so far as to make them amenable only to the orders of the President in respect to the execution of specific duties imposed upon them by law. From the performance of such duties the President could not relieve them. Nor, if summoned in 18 Wilcox v. Jackson, 13 Pet. 498, 513; U. S. v. Jones, 18 How. 92; LockIngton v. Smith, Pet. C. C. 466, Fed. Cas. No. 8,448; Button v. U. S., 20 Ct. Cl. 423; U. S. v. Cutter, 2 Curt. C. C. 617, Fed. Cas. No. 14,911; In re Neagle, 39 Fed. 833. 19 Wolsey v. Chapman, 101 U. S. 755. 20 Ex parte Van Hoven, 4 Dill. 411, Fed. Cas. No. 16,858. 21 U. S. v. Eliason, 16 Pet. 291. In general, the head of an executive department has authority to make regulations and issue orders, under the directions of the President, with reference to the business or administration of his department, which shall have the force of law to those who are subject to them; but this is subject to the condition that such orders and regulations do not conflict with any act of congress. U. S. v. Symonds, 120 U. S. 46, 7 Sup. Ct. 411; Ex parte Reed, 100 U. S. 13. The head of a department cannot, in a matter involving judgment and discretion, reverse the decision and action of his predecessor, even in a matter relating to the general affairs and management of the business of the department. Lavalette v. U. S., 1 Ct. Cl. 147. the courts to account for their failure to discharge them, could they plead that they were accountable only to the executive head. Such a doctrine would vest in the President a dispensing power, which is entirely without warrant in the constitution. Consequently, the courts have power to compel a cabinet officer, by mandamus or otherwise, to perform a simple ministerial act, made his duty by law, and in which a private person alone is interested. 22 When action is required of the President which is judicial in its character and not merely administrative, as when he reviews the sentence of a courtmartial, the matter must receive his individual attention. His authority cannot be delegated. He cannot act through the head of a department, but it must appear that the decision is his own judgment, and not merely a departmental order.23 With regard to papers in the custody of an executive department which are in the nature of confidential communications between officers of government, or of such a nature that, in the judgment of the head of the department, the disclosure of facts and names given in them would be detrimental to the public service, the rule is that they are privileged, and the law will not enforce the production of them in evidence in a suit between private parties.24 PARDONING POWER. 73. The President has power, under the constitution, to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. A pardon is "an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom 22 Kendall v. U. S., 12 Pet. 524. And see Marbury v. Madison, 1 Cranch, 137; Decatur v. Paulding, 14 Pet. 497. See ante, p. 84. 23 Runkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141. But his action, in such a matter, need not be evidenced under his own hand, but may be shown in other ways. U. S. v. Fletcher, 148 U. S. 84, 13 Sup. Ct. 552. 24 Anderson v. Hamilton, 8 Price, 244; Beatson v. Skene, 5 Hurl. & N. 838; 1 Greenl. Ev. §§ 250, 251; 15 Op. Attys. Gen. 378; Id. 415; 16 Op. Attys. Gen. 24. Nor can public documents, such as vouchers for the payment of public money, be taken from the custody of one of the departments by a writ of replevin at the suit of a private party. Brent v. Hagner, 5 Cranch, C. C. 71, Fed. Cas. No. 1,839. it is bestowed from the punishment which the law inflicts for a crime he has committed." 25 As the pardoning power is a general executive function, we shall, to avoid repetition, postpone a detailed discussion of it to the chapter relating to executive power in the states.26 At present it is only necessary to call attention to a few points arising under the federal constitution. Although that instrument vests in the President the power to grant reprieves and pardons, it is held that this does not prevent congress from granting amnesty, either before legal proceedings are taken, during their pendency, or after conviction.27 The pardoning power also includes the power to remit fines, penalties, and forfeitures, and it may in the last resort be exercised for this purpose by the chief executive, although it is in many cases by the laws of the United States confided to the secretary of the treasury, with respect to cases arising under the revenue laws.28 THE TREATY-MAKING POWER. 74. The constitution provides that the President shall have power, by and with the advice and consent of the senate, to make treaties, provided that two-thirds of the senators present concur. 75. All treaties which shall be made under the authority of the United States are declared to be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. This power embraces the making of treaties of every sort and condition; for peace or war, for commerce or territory, for alliance or succors, for indemnity, for injuries or payment of debts, for the recognition and enforcement of principles of public law, for the regulation of immigration and the rights of aliens, for rules of navigation, for arbitrations, and in short, for all the varied purposes which the policy or interests of independent sovereigns may dictate in their 26 Infra, c. 11, pp. 272–275. 25 U. S. v. Wilson, 7 Pet. 160. intercourse with each other.29 Aside from the limitations and prohibitions imposed by the constitution on the federal government, the power of treaty-making is given to that government, without restraining it to particular objects, in as plenipotentiary a form as held by any sovereign in any other society. The only questions which can arise in considering the validity of a treaty are whether it is a proper subject of treaty according to international law or the usage and practice of civilized nations, and whether it is prohibited by any of the limitations of the constitution.30 But while there is no express limitation on the power of the President as to the scope or the terms of the treaties which he may make, yet his authority is subject to certain restrictions necessarily implied from various parts of the constitution. There is an implied limitation which would prevent the political department from entering into any stipulations calculated to change the character of the government, or to do that which could only be done by the constitution-making power, or which would be inconsistent with the nature and structure of the government or the objects for which it was formed. Treaties may be made, and frequently are made, having reference to commercial intercourse. But the executive could not constitutionally abrogate in this manner the power of congress to "regulate foreign commerce." 31 But the internal polity of the states does not impose any limitation upon the treaty-making power. Thus, the federal government has constitutional power to enter into treaty stipulations with foreign governments for the purpose of restricting or abolishing the property disabilities of aliens or their heirs within the several states.32 And the United States may, by treaty, release to a foreign government an indebtedness due from that government to a private American citizen; but this will constitute a taking of such citizen's property for public use, and it will be incumbent upon the government to compensate him therefor.33 Although a treaty, when concluded, becomes the law of the land, yet the power of treaty-making is not properly legislative but pertains to the political department. For this reason it is confided to the 29 2 Story, Const. § 1508. 30 People v. Gerke, 5 Cal. 381. 31 Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295. 32 In re Droit d'Aubaine, 8 Op. Attys. Gen. 411; Kull v. Kull, 37 Hun, 476. 33 Meade v. U. S., 2 Ct. Cl. 224. President. But, lest the power should be perverted, by his unwisdom or disloyalty, to the destruction of the country, a check is placed upon it by requiring the ratification of the senate. But it will be observed that the functions of the senate are only advisory, or at most extend to accepting or rejecting the work of the President. He alone has the right to determine whether a treaty shall be made. The senate cannot make a treaty nor dictate its terms. It might indeed advise the making of a treaty, but the President would be in no wise bound to heed its recommendations. Nor is he bound to consult the senate in advance. It may suggest amendments to a completed treaty, but these must be accepted by the President to be of any force. But, again, the latter has no power to make treaties except by and with the advice and consent of the senate, and with the concurrence of two-thirds of its members present. Hence a treaty which has not been thus ratified by the senate is wholly inoperative to affect antecedent laws or rights acquired under them. The signature of the President is essential to the validity of a treaty; and it does not take effect, though ratified by the senate, until he has signed it.35 84 By the law of nations all treaties operating upon purely national rights, as well those for the cession of territory as for other purposes, are binding upon the contracting parties, unless it is otherwise provided in them, from the day they are signed; the ratification of them relates back to the time of signing. But this rule does not apply when the treaty operates on individual rights. There the principle of relation does not apply to such rights which were vested before the treaty was ratified, and in so far as it affects them it is not considered as concluded until there is an exchange of ratifications.37 If the treaty is self-executing, it takes effect and becomes binding at once.38 But a treaty containing provisions to be executed in the future is in the nature of a contract, and does not become a rule for the courts until legislative action shall be had on the subject. If the treaty involves the payment of money to the foreign power (as 34 U. S. v. Frelinghuysen, 2 Mackey (D. C.) 299. 35 Shepard v. Insurance Co., 40 Fed. 341. 36 Davis v. Police Jury, 9 How. 280; Garcia v. Lee, 12 Pet. 511. 37 Haver v. Yaker, 9 Wall. 32; Bush v. U. S., 29 Ct. Cl. 144. 38 Foster v. Neilson, 2 Pet. 253. 39 In re Metzger, 1 Parker, Crim, R. (N. Y.) 108. 39 |