Thus much concerning the title of the president of the United States.

2. I am, in the next place, to consider his powers and duties.°

He is to take care that the laws be faithfully executed; he is commander in chief of the army and navy of the United States, and of the militia, when called into their actual service. In the Saxon government, the power of the first executive magistrate was also twofold. He had authority to lead the army, as we are informed by Selden, to punish according to demerits and according to laws, and reward according to discretion. The law martial and that of the sea were branches of the positive law, settled by the general vote in the wittenagemote,

The person having the greatest number of votes for president, shall be the president, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three on the list of those voted for as president, the house of representa tives shall choose immediately, by ballot, the president. If the house do not make a choice before the fourth day of March then next following, the vice president shall act as president, as in case of the death or constitutional disability of the president. The person, having the greatest number of votes as vice president, shall be the vicepresident, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list, the senate shall choose the vice president. A quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. No person constitutionally ineligible to the office of president, shall be eligible to that of vice president of the United States.-Ed.

• Cons. U. S. Art. 2. s. 2, 3.

and not left to the will of a lawless general or commander: : so tender and uniform were those times both in their laws and liberties. The person at the head of the executive department had authority, not to make, or alter, or dispense with the laws, but to execute and act the laws, which were established: and against this power there was no rising up, so long as it gadded not, like an unfeathered arrow, at random. On the whole, he was no other than a primum mobile, set in a regular motion by laws, which were established by the whole body of the nation. I

The president has power to nominate, and, with the advice and consent of the senate, to appoint ambassadours, judges of the supreme court, and, in general, all the other officers of the United States. On this subject, there is a very striking and important difference between the constitution of the United States and that of Pennsylvania. By the latter, the first executive magistrate possesses, uncontrolled by either branch of the legisla.. ture, the power of appointing all officers, whose appointments are not, in the constitution itself, otherwise provided for. On a former occasion, I noticed a maxim, which is of much consequence in the science of government-that the legislative and executive powers be preserved distinct and unmingled in their exercise. This maxim I then considered in a variety of views: and, in each, found it to be both true and useful. I am very free to confess, that, with regard to this point, the proper principle of government is, in my opinion, observed by the constitution of Pennsylvania much more

r

P Bac. on Gov. 40.

r Cons. Penn. art. 2. s. 8.

Id. 32, 33.

Ante. vol. 1. p. 401, 407.

correctly, than it is by the constitution of the United States. In justice, however, to the latter, it ought to be remarked, that, though the appointment of officers is to be the concurrent act of the president and senate, yet an indispensable prerequisite-the nomination of them -is vested exclusively in the president.

The observations which I have delivered concerning the appointment of officers, apply likewise to treaties; the making of which is another power, that the president has, with the advice and consent of the senate.

The president has power to fill up all vacancies that may happen, in offices, during the recess of the senate, by granting commissions, which shall expire at the end of their next session.

He has no stated counsellors appointed for him by the constitution. Their inutility, and the dangers arising from them, were before fully shown. He may, however, when he thinks proper, require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their offices.

On extraordinary occasions, he may convene both houses of the legislature, or either of them: and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper.

It is his duty, from time to time, to lay before congress information of the state of the Union; and to re

t Ante. vol. 1. p. 442.

commend to their consideration such measures, as he shall judge necessary and expedient.

He has power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

To prevent crimes, is the noblest end and aim of criminal jurisprudence. To punish them, is one of the means necessary for the accomplishment of this noble end

and aim.

The certainty of punishments is of the greatest importance, in order to constitute them fit preventives of crimes. This certainty is best obtained by accuracy the publick police, by vigilance and activity in the executive officers of justice, by a prompt and certain communication of intelligence, by a proper distribution of rewards for the discovery and apprehension of criminals, and, when they are apprehended, by an undeviating and inflexible strictness in carrying the laws against them into sure and full execution.

All this will be readily allowed. What should we then think of a power, given by the constitution or the laws, to dispense with accuracy in the publick police, and with vigilance, vigour, and activity in the search and seizure of offenders? Such a power, it must be admitted, would seem somewhat extraordinary.

What, it will next be asked, should we think of a power, given by the constitution or the laws, to dispense with their execution upon criminals, after they have been apprehended, tried, convicted, and condemned? In other

words can the power to pardon be admissible into any well regulated government? Shall a power be given to insult the laws, to protect crimes, to indemnify, and, by indemnifying, to encourage criminals?

From this, or from a similar view of things, many writers, and some of them very respectable as well as humane, have been induced to conclude, that, in a government of laws, the power of pardoning should be altogether unknown.

Would you prevent crimes? says the Marquis of Beccaria: let the laws be clear and simple: let the entire force of the nation be united in their defence: let them, and them only, be feared. The fear of the laws is salutary but the fear of man is a fruitful and a fatal source of crimes. Happy the nation, in which pardons will be considered as dangerous! Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue, which should shine in the code, and not in private judgment. The prince, in pardoning, gives up the publick security in favour of an individual; and, by his ill judged benevolence, proclaims an act of impunity."

With regard, says Rousseau, to the prerogative of granting pardon to criminals, condemned by the laws of their country, and sentenced by the judges, it belongs only to that power, which is superiour both to the judges* and the laws--the sovereign authority. Not that it is very clear, that even the supreme power is vested with such a right, or that the circumstances, in which it might be exerted, are frequent or determinate. In a well

"Bec. c. 41. 46.