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In United States v. San Jacinto Tin Co.25 and United States v. Bell Telephone Co.26 was upheld a general power of the Attorney-General and of his assistants, acting not in pursuance of any express statutory authority, but under their general powers as officers for the enforcement of the legal rights of the United States, to institute suits. In the first case the court say: : “If the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts for relief

the question of the appeal to the judicial tribunals of the country must primarily be decided by the AttorneyGeneral of the United States.

We are not insensible to the enormous power and its capacity for evil thus reposed in that department of the Government.

But it has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and if restrictions are to be placed upon the exercise of this authority by the AttorneyGeneral it is for the legislative body which created the office to enact them.”


$ 683. Information to Congress.

The constitutional obligation that the President “shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient,” 27 has, upon occasion, given rise to controversy between Congress and the President as to the right of the former to compel the furnishing to it of information as to specific matters. As a result of these contests it is practically established that the President may exercise a full discretion as to what information he will furnish, and what he will withhold.28

25 125 U. S. 273; 8 Sup. Ct. Rep. 850; 31 L. ed. 747. 26 128 U. S. 315; 9 Sup. Ct. Rep. 90; 32 L. ed. 450. 27 U. S. Const., Art. II, Sec. III.

28 In Field v. People (3 Ill. 79) the general question as to the right of a governor to refuse, at his discretion, to supply the legislature with information and papers demanded of him, was carefully considered by the court. In the course of its opinion the court say:

“ The President may require the opinion of the heads of departments, their views, counsel, and advice, relative to the legality or policy of measures. In this exercise of the right he calls on one or more, according to the difficulty or importance of the subject; but whether the consultation is separate, or in cabinet counsel, it is always private and confidential, and is so regarded, not only by the officers but by the law also; for none of the officers or their clerks (who are sworn to secrecy) can be required to give testimony of transactions, or matters of a confidential character. But neither in contemplation of law, nor in fact, is there any otñcial confidential intercourse between the Governor and Secretary, or other officers of the executive departments. He may call upon them for information relative to matters connected with their offices. He may, for example, enquire of the Treasurer what amount of money is in the Treasury, of the Auditor, what amount of warrants are outstanding, and of the Secretary, what are the kind and number of commissions to which he has put the State seal; or whether the laws are all distributed, etc. These are all public matters, in reference to which there can be no secrecy, nor confidence, and it is only in relation to such that the Governor can require information. He has no right to the opinion or advice of the Secretary, as to the legality or propriety of measures of any kind; and as all the duties of the Secretary are prescribed by law, and as it is only in relation to them that he can be required to give information, there cannot, therefore, in the nature of things, be any implication of confidence from communications relative to a public law or to matters of fact recorded for public information.

During the administration of Cleveland a vigorous and long continued controversy was waged as to the right of the Senate or of its committees to obtain from the office of the Attorney-General certain papers bearing upon certain suspensions from office made by the President. At this time the law of 1867, as amended by that of 1869, was in force, which placed various limitations upon the powers of the President with respect to suspensions and removals from office. One George W. Duskin having been suspended, during the recess of the Senate, from the office of District Attorney, and one J. D. Burnett appointed as his successor, the Senate, when called upon to confirm the nomination of Burnett, through the Judiciary Committee called upon the Attorney-General to send to it all papers and information in the Department of Justice bearing upon the nomination of Burnett, as well as “ all papers and information touching the suspension and proposed removal from office of George W. Duskin.” To this request the following reply was given: “ The Attorney-General states that he sends herewith all papers, etc., touching the nomination referred to; and in reference to the papers touching the suspension of Duskin from office, he has as yet received no direction from the President in relation to their transmission."

“ The reasoning in favor of the Governor's authority to remove the Secre tary, because of the latter's duty to register his official acts, can have no application to the Secretary of State; an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed by the Constitution. In the performance of this, as of other duties, he does not act as the Governor's oflicer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law.”

Previously to this the committees of the Senate had made requests for information upon the heads of various of the other departments, which requests had been refused at the direction of the President. The Senate now, January 25, 1886, however, as a body, and not through one of its committees, made a demand in the following terms: “Resolved, that the Attorney-General of the United States be, and he hereby is, directed to transmit to the Senate copies of all documents and papers

in relation to the conduct of the office of District Attorney of the United States for the Southern District of Alabama.” To this demand the Attorney-General replied: "In response to the said resolution, the President of the United States directs me to say that the papers and documents which are mentioned in the said resolution and still remaining in the custody of the Department, having exclusive reference to the suspension by the President of George M. Duskin

it is not considered that the public interests will be promoted by a compliance with the said resolution.” Thereupon the Senate adopted a vigorous resolution of condernnation of the action of the President, 29 declaring it to be “ in violation of his official duty and subversive of the fundamental principles of the Government, and of a good administration thereof.” Accompanying this resolution a majority and minority report were made by the Judiciary Committee.

On March 1, 1886, President Cleveland in a special message


29 Feb. 18, 1886. Sen. Miscl. Doc. No. 74, 49th Cong., 1st Sess. 30 Senate Report No. 135, 49th Cong., Ist Sess.

to the Senate argued at length the propriety and constitutionality of his position.

The constitutionality of his position would seem to be clear. The point has never been precisely passed upon in the courts, but in Totten v. United States31 the court declared that an action against the Government in the Court of Claims upon a contract for secret services could not be maintained because " the secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery.” The opinion then goes on to declare, obiter, “ It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” 32

§ 684. The President's Control of Foreign Relations.

In the chapter dealing with the Treaty-Making Power, the extent of the President's control of the foreign relations of the United States was fully considered.

$ 685. The Veto Power of the President.

The exercise by the President of the veto power has given rise to very few constitutional questions, and, where these have arisen, they have been considered, incidentally, elsewhere in this treatise,33

$ 686. The President's Pardoning Power.

The Constitution provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

31 92 U, S. 105; 23 L. ed. 605.

32 For a further discussion of this subject see speech of Senator A. O. Bacon, Jan. 13, 1909, Cong. Rec. vol. 43, p. 1011ff. See also debate in the Senate, March 3, 1909, Cong. Rec. vol. 43, p. 3813ff.

33 Chapter XXXIX,

This pardoning power, like the veto power, has given rise to very few constitutional questions. It will be seen that the power is limited to offences against the United States. Cases of impeachment are expressly excepted from its reach, and we shall later consider whether it may extend to the remission of penalties imposed for civil contempts of court.

The effect of a pardon is to obliterate the offense, but it does not operate to impair the rights of others, as for example, to restore the offender's property which has been forfeited ;34 nor does it restore one ipso facto to a forfeited office.25 Also, though the pardon takes away the guilt, it does not affect the fact of conviction of the crime, which fact may be later shown as bearing upon the offender's character.

The power to pardon includes the right to remit part of the penalty as well as the whole, and in either case may be made conditional. The power may be exercised at any time after the offense has been committed, that is, either before, during, or after legal proceedings for punishment.34 General pardons, granting amnesty to classes of offenders, without naming them individually, may be granted. 37

§ 687. The Pardoning Power May not be Limited by Congress.

The power is a purely discretionary one in the President, and, therefore, may not in any way be limited by Congress. In E. parte Garland38 the court say: “ The power thus conferred is unlimited, with the exception stated (impeachments). It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken ordering their pendency, or after conviction and judgment. This power of the President is not subject to legislative control.

34 Osborn v. United States, 91 U. S. 474; 23 L. ed. 388.
35 Ex parte Garland, 4 Wall. 333; 18 L. ed. 366.
36 Ex parte Garland, 4 Wall. 333; 18 L. ed. 366.

37 See American Law Register, VIII (1869), 512, 577, two articles entitled “ The Power of the President to Grant a General Pardon or Amnesty for Offenses against the United States."

38 4 Wall, 333; 18 L. ed. 366.

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