swers by the court that were given by the author. After this result had been announced, and the President's amnesty had been judicially sustained, Congress attempted to destroy or at least restrict its practical effect by legislation. A statute was passed which declared that the acceptance by any person of a pardon should be conclusive evidence that he had been guilty of the offences which were condoned, and his guilt being thus established, he should be precluded from enforcing certain legal rights and claims against the government which the Supreme Court had previously decided might be enforced by persons who had received the executive pardon. This statute the court pronounced wholly null and void, because it invaded both the exclusive province of the judiciary by changing the legal import of their judg ments, and of the President, by restricting the force and effect of the pardoning power which had been conferred upon him alone.1 § 695. II. The Powers of Congress over Pardons. — Is any legislative action needed to aid the President, or can any legislative action restrict him, in the exercise of his function? Plainly not. Pardoning is clearly a kind of executing, not of making laws. As far as authority is conferred upon the Chief Magistrate, it can neither be extended nor limited by Congress. A statute passed to give construction to the Constitution, and to confine its operation to particular classes of pardons, would be a palpable usurpation of the judicial function. Thus, an act of Congress which should take away the President's power to confer conditional pardons, or to grant pardons before trial, would be absolutely void. The same would be true of a law which should assume to restrain him from proclaiming a general amnesty, if the latter is included within the terms of the Constitution. §696. Has Congress any independent authority over the subject? None is conferred in express language, and if any exists, it must be implied from the power to define and punish crimes. The legislature may, beyond doubt, relieve existing offenders from the penal consequences of their acts, by repeal 1 U. S. v. Klein, 13 Wall. 128, and 154, 156. ing the law which defined the crime and apportioned the pun ishment. Thus the results of a general pardon or amnesty would be reached in an indirect manner. But while the statute remains in force, and the penalties are impending, it would seem that the national legislature cannot interpose and extend an act of grace either to a specified criminal, or to an indeterminate class. The general grant of power to the President would seem to cover the whole case, and to leave no room for legislative action. Again, a pardon is confessedly a step in the execution of laws, and the American Congress, unlike the British Parliament, has no executive function. It may apportion the punishment; it may make that punishment conditional; but when it has once decided upon the penalty, its authority would seem to be ended. Remission is a proper act of the President and not of the legislature. SECTION VI. THE POWER OF THE PRESIDENT TO GIVE INFORMATION AND TO RECOMMEND MEASURES TO CONGRESS. 697." He 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." The necessity of the first clause is apparent. By virtue of his official position the President becomes acquainted with a vast number of facts which are most important for Congress to know, but which that body possesses no means of knowing except through the Executive. Thus the items and total amount of the revenue and of the expenditure, upon which so much of the economical legislation is based; the situation of our relations with foreign countries; the number and disposition of the land and naval forces; the character, cost, and condition of the armaments and supplies, these and a thousand other matters of detail are first known by the Executive Department, and must be communicated by it to Congress, as the basis of the annual or occasional legislation. 698. From the very organization of the present govern ment the practice has been uniform for the President to communicate the greater part of this information in a message sent to Congress at the opening of each session. This message is accompanied by a full and minute detail of the various operations of each department during the year. The President may at other times transmit information; and the Congress, or either House, may request more particular statements respecting any matter deemed by them important. When a demand is made, the President may, and often does, withhold the facts. if in his opinion their communication at the time would be pre judicial to the public interests. Congress may have requested information concerning matters over which they have no direct legislative power; but the President cannot refuse, on that ground alone, to make the statement. It would be almost, if not quite impossible, to conceive of any facts respecting the condition of the nation, which could not in some manner be made useful by Congress in matters entirely within its jurisdiction. Even if every other possible reason failed, all information must be useful, as it would affect the oversight which the House of Representatives may always have of civil officers, and their power to impeach such officers. § 699. Thus, during the late civil war, the two houses appointed a joint committee on the state of the war, which collected a vast amount of evidence respecting the various military operations. Now, Congress has very little to do, in any direct manner, with the conduct of war, and the information ob tained could not be used as the basis of any immediate legisla tion upon military movements. But the knowledge thus acquired was of the highest value as an aid in forming correct conclusions upon the all-important subject of supplies. Congress has very little to do in a direct way with the management of foreign relations; but a knowledge of those relations may be absolutely necessary as bearing upon the question of declaring war, or of raising an army or equipping a navy in preparation for anticipated hostilities. In conclusion, all information on all possible subjects connected with the welfare of the country, may be useful to Congress, and may be demanded by them. The President cannot refuse to respond on the ground that the facts can be of no use to the legislature; Congress, not he, must judge of their value. But the President may decline to communicate at the time, when in his judgment the public welfare requires the facts to be kept private; as soon as the necessity for such concealment is past, he must respond to the legislative call. §700. The second clause he shall recommend to the consideration of Congress such measures as he shall judge necessary and expedient seems to have a plain and definite meaning; and the power, according to that meaning, is reasonable and just. But a signification has been given to it, during a large part of our political history, entirely different from that which must have been contemplated by the framers of the Constitution; and a practice has grown up utterly opposed to the spirit of the organic law. The President, having access to information, and being familiar with the practical working of the laws, will be sure to perceive the occasions for amendments, additions, repeals; in short, for measures which he deems necessary or expedient. These improvements and alterations he may recommend to Congress. I do not think that a fair interpretation of the clause would require him to stop with a simple suggestion; he may, doubtless, state facts and use arguments in support of his views; may endeavor, to the best of his ability, to show why the proposed measure is necessary or expedient. So much is plainly embraced in the word recommend. All this is simple, satisfactory, in strict accordance not only with the letter of the clause, but also with the spirit of the whole instrument. The President uses his prior official knowledge; is convinced from that knowledge that certain measures are demanded; proposes those measures to Congress with whatever of argument he thinks proper, and there leaves the matter. He has discharged his duty, and the responsibility is now with the law-making power. § 701. How different is the reality from this picture. How often have Presidents and their cabinets seemed to regard themselves as the great legislative department, and the Congress as a body expected to receive and act upon their views. Not content with recommending measures, they have fre quently set themselves at work, with all the appliances at their command, to procure those measures to be adopted, as though the passage of certain statutes was the chief object of their administrations, and the chief work of their official career. The evil is not a recent one; it had its origin immediately after the time of those Presidents who assisted in laying the foundations of the government, but it has developed with rapidity in recent years. $ 702. While the President should not be interfered with in the discharge of those functions which are committed to him by the organic law, the legislature should be left no less free to act within their own peculiar sphere and range of duties; the Chief Magistrate should not overstep the line which separates their respective domains. The Constitution evidently contemplates the Congress as the great legislative body, and the President as the great executive officer. This is undoubtedly the essential, the fundamental idea of the general plan. The organic law does, indeed, recognize two exceptions to the universality of this principle, and beyond those exceptions neither Congress nor President should go. One exception has just been stated. The other exists in the .ct that the President must pass upon all statutes, and approve or disapprove; and that, if he disapprove, he must give his reasons therefor. This, as I have before shown, makes him in a certain sense a coordinate branch of the legislature; and he may, therefore, and indeed must, have his opinions as to the policy of enactments which have gone through the Congress. But he cannot originate measures, or debate them, or express his views upon them, except when he disapproves of a bill presented to him, or when he recommends them to the consideration of the legislature. The spirit of the Constitution, which separates the legislative and executive functions, is departed from to this extent, and no more. It cannot be denied, however, that the modern practice has departed from that spirit much farther, and has thereby tended to destroy one of the principal safeguards of every free, constitutional government - the independence of the Executive and Legislative Departments. The final and perfected result of this practice would be the accumu ་ |