Express Restrictions. Those express restrictions upon the powers of Congress which are intended for the protection of personal rights and liberties, it will be more convenient to refer to hereafter, in connection with other protections. The following are some which concern general policy.

Slave Trade. Congress was forbidden, though in obscure language, to prohibit the importation of slaves prior to the year 1808.1 The forbidden power was exercised as soon as this time had expired.

2

Titles, Presents, &c. - The granting of titles of nobility is prohibited. Their inconsistency with republican institutions, based upon perfect equality of rights, was so manifest as to render the prohibition an important security. It is also provided, that no person holding an office of profit or trust under the United States shall, without the consent of Congress, accept any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. A wise jealousy of foreign influence in the affairs of government will amply justify this provision.

1 Const., Art. I. § 9, cl. 1. 8 Story on Const., § 1352.

2 Const., Art. I. § 9, cl. 8.

CHAPTER V.

THE POWERS OF THE EXECUTIVE.

Commander-in-Chief. - The President is Commanderin-Chief of the army and navy of the United States, and of the militia of the several States when called into actual service.1 This important power is confided to him to be exercised in his discretion, but it is expected to be exercised through the War Department, and not by taking command in the field, or by any personal direction of armies. As commander, while war prevails the President has all the powers recognized by the laws and usages of war, but at all times he must be governed by law, and his orders which the law does not warrant will be no protection to officers acting under them.3 An example is where he appoints an unlawful military commission, which proceeds to try and punish offenders against the law. The power to declare war being confided to the legislature, he has no power to originate it, but he may in advance of its declaration employ the army and navy to suppress insurrection or repel invasion.5

The Cabinet. - The President may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of

1 Const., Art. II. § 2.

2 United States v. Eliason, 16 Pet. 291.

8 Little v. Barreme, 2 Cranch, 170.

4 Milligan v. Hovey, 3 Biss. 13.

6 The Prize Cases, 2 Black, 635, 668.

their respective offices.1 The Constitution is silent respecting the convening of these officers as a council; but custom sanctions it, and it is usual for the President to call them together and act upon their joint advice on all important matters coming within his cognizance. The heads of departments do not act independently of the President, except in such cases as the law may specially provide for, nor are they responsible to Congress; but they are executive agents, and any official act done by any one of them is, in contemplation of law, done by the President himself, and the responsibility is upon him." The responsibility, however, is only political; the President cannot be called to account in prosecutions, civil or criminal, impeachment alone excepted. In customary language the heads of department collectively are spoken of as the Cabinet; but a cabinet council, not created or required by the Constitution or by law, can only be an advisory body, which the President will convene or consult in his own discretion.

Reprieves and Pardons. The President has power to grant reprieves and pardons, for offences against the United States, except in cases of impeachment.* There are several ways in which this power may be exercised: 1. A pardon may be given to a person under conviction by name; and this will take effect from its delivery, unless otherwise provided therein. 2. It may be given to one or more persons named, or to a class of persons by description before conviction, and even before prosecution

1 Const., Art. II. § 2. These departments are created by law, and are increased as the exigencies of the public service seem to require. 2 Parker v. United States, 1 Pet. 293; Wilcox v. Jackson, 13 Pet. 498; United States v. Eliason, 16 Pet. 291; United States v. Freeman, 3 How. 556; Marbury v. Madison, 1 Cranch, 137. But this is otherwise as to any duties imposed by law on heads of the departments specially. Kendall v. United States, 12 Pet. 524.

8 Durand v. Hollis, 4 Blatch. 451.

4 Const., Art. II. § 2.

begun. Such a pardon is rather in the nature of an amnesty or act of oblivion or forgiveness, blotting out the supposed offence, and relieving the parties from all actual or supposed criminality. 3. It may be given by general proclamation, forgiving all persons who may have been guilty of the specified offence, or offences,1 and in this case the pardon takes effect from the time the proclamation is signed. 4. It may in any of these ways be made a pardon on conditions to be first performed, in which case it has effect only on performance; or on conditions to be thereafter performed, in which case a breach in the condition will place the offender in the position occupied by him before the pardon was issued. The power to pardon includes the power to reduce or commute the punishment, but not to substitute one of a different nature.1 A reprieve is a withdrawal or withholding of punishment for a time after conviction and sentence, and is in the nature of a stay of execution.

By a full pardon the offender is relieved from all consequences of the criminal conduct,5 except so far as third persons, by the prosecution of judicial proceedings, may themselves have acquired rights to a share in penalties, to property forfeited and actually sold."

or

1 Ex parte Garland, 4 Wall. 333, 380; United States v. Klein, 13 Wall. 128, 147.

2 Lapeyre v. United States, 17 Wall. 191.

8 United States v. Wilson, 7 Pet. 150; United States v. Greathouse, 2 Abb. U. S. 382; Haynes v. United States, 7 Court of Claims, 443. 4 Ex parte Wells, 18 How. 305.

5 Armstrong Foundry Case, 6 Wall. 766; Carlisle v. United States, 16 Wall. 147; Osborn v. United States, 91 U. S. Rep. 474.

6 United States v. Lancaster, 4 Wash. C. C. 64; United States v. Harris, 1 Abb. U. S. 110. In this last case it is decided that the pardon does not release from an uncollected judgment in favor of an informer for part of a penalty, but the contrary was held in United States v. Thomasson, 4 Biss. 336. The power to pardon extends to punishments for contempts. Re Muller, 7 Blatch. 23.

8

2

Treaties. -The President has power, by and with the consent of the Senate, to make treaties, provided two thirds of the Senators concur.1 The Constitution imposes no restriction upon this power, but it is subject to the implied restriction that nothing can be done under it which changes the Constitution of the country, or robs a department of the government or any of the States of its constitutional authority. But foreign territory may be acquired by treaty; the operation of acts of Congress as to the contracting parties may be modified and controlled, and the treaty will take effect as law from its enactment, pro'vided it is capable of operating of itself without new legislation to give it effect. Whether those with whom the President has dealt in making a treaty had proper authority from their own government for the purpose, and whether that government could give the right it has assumed by the treaty to transfer, are political questions, and the judiciary cannot inquire into them. If by a treaty a sum of money is to be paid to a foreign nation, it becomes the duty of Congress to make the necessary appropriation; but in the nature of things this is a duty the performance of which cannot be coerced. The payment of awards under arbitration is therefore, in one sense, discretionary, but only as the payment of public debts is discretionary, that is, it cannot be compelled by any process of execution.

1 Const., Art. II. § 2, cl. 2.

2 Story on Const., § 1508; 1 Tucker's Bl., Ap. 332.

8 American Ins. Co. v. Canter, 1 Pet. 511.

4 Foster v. Neilson, 2 Pet. 253; United States v. Arredondo, 6 Pet. 691; Garcia v. Lee, 12 Pet. 511.

5 Doe v. Braden, 16 How. 635; Fellows v. Blacksmith, 19 How. 366. 6 This subject underwent much discussion at the time of the treaty of 1794, known as Jay's treaty, with England; at the time of the purchase of Alaska; and in the later case of the award to England by the Commission on the Fisheries.