and pardons. Reprieves human testimony, a man may be convicted of a crime, of which he is afterwards found innocent; or there may be alleviating circumstances which will reader it highly proper to pardon an individual who has been justly convicted; or it may be good policy, where many are engaged crime, to recall the offenders, by mercy, rather than drive them to despair by strict justice. Of making treaties. This power is wisely intrusted to the President alone. A single man, of sense and prudence, can better examine into the details, and balance the motives which should determine its exercise, than any numerous body of men; and, in cases of public emergency, such as treason, or rebellion, the propriety of the time, and manner of offering pardon, may be a matter of great delicacy, and not admit the delay, or the publicity, which would attend a legislative act. Besides, there is greater reason to expect a right exercise of this power, by a single responsible individual, who is observed and scrutinized by the public, than by a numerous body, whose motives cannot be scanned, where all responsibility is divided and lost. The power of pardon does not extend to cases of impeachment, because that, as we shall notice hereafter, is a peculiar proceeding, and the President ought not to have the power of screening public officers, his favourites or dependants, or with whom he may have been engaged in dangerous or corrupt practices against the public welfare. The President has power, by, and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators treaties. present concur. As treaties are declared by Of making the Constitution to be the supreme law of the land, it might seem proper that the Le gislature should have a part in their formation; but the peculiarity of their character renders this inexpedient. Although legisla tive in their effect, they rarely operate immediately upon the domestic concerns of a nation. They are not, strictly speaking, laws, but "contracts with foreign nations, which have the force of law; but derive it from the obligation of good faith."* They are not rules prescribed by the government, but agreements between nations; and the constitution of human society requires that they should be obligatory upon the members of each contracting party. The President is the constitutional organ of communication with foreign nations, and all intercourse with them is best conducted through this channel. Moreover, the secrecy and despatch, often required in the preliminary negotiations, can only be attained by confiding the power to a single person. Foreign nations might be unwilling to enter upon negotiations when every thing must be made public, and on the other hand they would derive great advantage from knowing what concessions our ministers were authorized to make; both of which would be the consequence of requiring the previous concurrence of a popular assembly. But it would not be right to intrust the power to the President, without control. It is too great, to be confided to any single individual, in a republican government, and it *Federalist, No. 75. K treaties. Of making would expose him to too great temptation by the offers which foreign nations might make to his avarice, or his ambition. The Senate of the United States has, therefore, been associated with him, in the execution of this power; in such a manner as to secure all the advantages to be derived from his single action, and to provide an efficient control over its abuse. The instructions are given, and the negotiations made, by the President, but the ratification of the Senate is necessary, to give validity to the treaty. And, by way of greater caution, a larger majority is required, than in ordinary legislation. The construction of the Senate, the number and standing of its members, their acquaintance with public affairs, its permanent character, and the ease with which it may be assembled, render it peculiarly fitted for this high The effect trust. It has been made a question, whether a of treaties. treaty, constitutionally made, is obligatory upon Congress; or whether they have any discretion about passing a law which may be necessary to carry the treaty into effect. In the year 1796, the House of Representatives adopted a resolution, declaring, that when a treaty depended for execution of any of its stipulations on an act of Congress, it was the right and duty of the House to deliberate on the expediency or inexpediency of carrying such treaty into effect. But General Washington, then President, explicitly denied this right, and asserted the exclusive authority of the President and Senate to make a treaty; which, when ratified in the mode prescribed by the Constitution, be And The effect comes the supreme law of the land. "If a treaty be the law of the land, it is as much obligatory upon Congress, as upon any other part of the government, or upon the people at large, so long as it continues in force, and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but without such concurrence, a law, in the shape of a treaty, is as binding upon them, as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract made by authority of law. The argument in favour of the binding and conclusive efficacy of every treaty, made by the President and the Senate, is so clear and palpable, that it has probably carried very general conviction throughout the community, and this may be now considered as the decided sense of public opinion. This was the sense of the House of Representatives in 1816, and the resolution of 1796 would not now be repeated."+ * Rawle on the Const. 68. + 1 Kent's Com. 268. of treaties. Treaties laws. The same reasoning will apply to prove repeal prior that a treaty repeals all existing laws that are inconsistent with it. The President and Senate are authorized to bind the nation by treaties, which are to be the supreme law of the land; which would not be the fact, if their stipulations could be defeated by any prior laws; and foreign nations could have no security in treating with those whom the Constitution has appointed for this purpose, if the subsequent consent of Congress were necessary, to give validity to their acts.* Even if treaties have no higher obligation than ordinary laws, it is a well settled rule in legislation, that the last law must prevail, and prior laws inconsistent with it are, of course, repealed, though not particularly mentioned. This does not prevent Congress from afterwards passing laws inconsistent with the treaty, or even reviving those repealed by it. But to do so would require the concurrence of the Senate and President; would be a violation of the treaty; and would, probably, lead to war; the right to declare which, is vested in Congress. What was said in relation to the election of President by the House of Representatives, may here be repeated, namely, that what is done according to the provisions of the Constitution, is to be considered as the will of the people. So a treaty constitutionally made, derives its effect from the will of the people expressed in their Constitution; and is as much a law as an act of Congress. The President has power to nominate, and *Rawle on the Const. 61. |