The Online Library of Liberty

A project of Liberty Fund, Inc.

• Lectures On Law,
• Part I.: Lectures On Law.
• Chapter XII.: Of the Common Law.
• Chapter XIII.: Of the Nature and Philosophy of Evidence.
• Part 2.: Lectures On Law.
• Chapter I.: Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department.
• Chapter II.: Of the Executive Department.
• Chapter III.: Of the Judicial Department.
• Chapter IV.: Of the Nature of Courts.
• Chapter V.: Of the Constituent Parts of Courts.—of the Judges.
• Chapter VI.: The Subject Continued. of Juries.
• Chapter VII.: The Subject Continued. of Sheriffs and Coroners.
• Chapter VIII.: The Subject Continued. of Counsellors and Attornies.
• Chapter IX.: The Subject Continued. of Constables.
• Chapter X.: Of Corporations.
• Chapter XI.: Of Citizens and Aliens.
• Chapter XII.: Of the Natural Rights of Individuals.
• Part 3.: Lectures On Law.
• Chapter I.: Of the Nature of Crimes; and the Necessity and Proportion of Punishments.
• Chapter II.: Of Crimes Against the Right of Individuals to Their Property.
• Chapter III.: Of Crimes Against the Right of Individuals to Liberty, and to Reputation.
• Chapter IV.: Of Crimes Against the Right of Individuals to Personal Safety.
• Chapter V.: Of Crimes, Immediately Against the Community.
• Chapter VI.: Of Crimes, Affecting Several of the Natural Rights of Individuals.
• Chapter VII.: Of Crimes Against the Rights of Individuals Acquired Under Civil Government.
• Chapter VIII.: Of the Persons Capable of Committing Crimes; and of the Different Degrees of Guilt Incurred In the Commission of the Same Crime.
• Chapter IX.: Of the Direct Means Used By the Law to Prevent Offences.
• Chapter X.: Of the Different Steps Prescribed By the Law, For Apprehending, Detaining, Trying, and Punishing Offenders.
• Bibliographical Glossary *
• Afterword

CHAPTER II.

Of the Executive Department.

In a former part of my lectures,a it was shown, that the powers of government, whether legislative or executive, ought to be restrained. But there is, it was observed, a remarkable contrast between the proper modes of restraining them; for that the legislature, in order to be restrained, must be divided; whereas the executive power, in order to be restrained, should be one. The reasons of this remarkable contrast were, on that occasion, traced particularly, and investigated fully.

We have seen, in our remarks on the congress of the United States, that it consists of two branches—that it is formed on the principle of a divided legislature. We now see, that, in the executive department, the principle of unity is adopted. “The executive power shall be vested in a president of the United States of America.”b

In treating of the executive department of the United States, I shall consider, 1. The title of the president. 2. His powers and duties.

1. I am to consider the title of the president of the United States. His title is by election.

The general preference which has been given, by statesmen and writers on government, to a hereditary before an elective title to the first magistracy in a state, was the subject of full discussion in a former lecture.c I then, I hope, showed, that this preference, however general, and however favoured, is, in truth and upon the genuine principles of government, ill founded. My remarks on this subject I will not, at this time, repeat.

It will probably occasion surprise, when I state the elective title of our first executive magistrate as a renewal, in this particular, of the ancient English constitution. Without hesitation, however, I state this elective title as such.

Well aware I am, that, with regard to this point, I differ in my opinion from the Author of the Commentaries on the laws of England. He thinks it clearly appears, from the highest authority England is acquainted with, that its crown has ever been a hereditary crown.d The best historical evidence, however, speaks, I apprehend, a language very different from that, which Sir William Blackstone considers as the highest authority.

A king among the old Saxons, says Selden, was, in probability, a commander in the field, an officer pro tempore. His title rested upon the good opinion of the freemen; and it seemeth to be one of the best gems of his crown, for that he was thereby declared to be most worthy of the love and service of the people.e

The sheriff, says he, in another place, was chosen by the votes of the freeholders, and, as the king himself, was entitled to his honour by the people’s favour.f The magistrates, he tells us, in the same spirit, were all choice men; and the king the choicest of the chosen; election being the birth of esteem, and this of merit.g

The dignity and office of the king, says Mr. Millar, though higher in degree, was perfectly similar to those of the tithing man, the hundreder, and the earl; and he possessed nearly the same powers over the whole kingdom, which those inferiour officers enjoyed in their particular districts.h

King Offa,1 in an address to his people, speaks of his elective title, and of the great purpose for which he was elected, in the following very remarkable and unequivocal terms—i “electus ad libertatis tuae tuitionem, non meis meritis, sed sola liberalitate vestra.”

It appears from history, says a very accurate inquirer,j that all the kings of the Saxon race were elected to their kingly office.

Even the mighty Conqueror, says the learned Selden,k stooping under the law of a Saxon king, became a king by leave; wisely foreseeing, that a title gotten by election is more certain than that which is gotten by power. Henry the third brought in with him the first precedent in point, of succession by inheritance in the throne of England.

Sir William Blackstone himself, in one place in his Commentaries, speaking of the Saxon laws, mentions, among others, the election of their magistrates by the people, originally even that of their kings. He adds, indeed, that dear bought experience afterwards evinced the convenieuce and necessity of establishing a hereditary succession to the crown.l

If an elective title is a distemper in the body politick; the history and experience of England would lead us to conclude, that a hereditary title is a remedy still worse than the disease. Henry the third is stated as the first fair instance of a prince ascending the throne by virtue of a hereditary claim. How soon was this claim transmitted, in crimson characters, to his posterity, by the fatal and factious war of the roses concerning the right of succession! How long and how destructively did that war rage! How pernicious were its consequences, for ages after its immediate operations had ceased! How few and how short have been the lucid intervals, during which the madness of a contested claim to the succession or to the enjoyment of the English or the British crown has not disturbed the peace and serenity of the nation!

The intrigues, and cabals, and tumults, and convulsions, which are assumed as necessarily annexed to the election of a first magistrate, are perpetually urged against this mode of establishing a title to the office. It is well worth our while to mark the sedulous attention, with which intrigues, and cabals, and tumults, and convulsions, in the election of our first magistrate, are avoided, nay, we trust, rendered impracticable, by the wise provisions introduced into our national constitution.

To avoid tumults and convulsions, the president of the United States is chosen by electors, equal, in number, to the whole number of senators and representatives, to which all the states are entitled in congress. These, as we shall find by referring to one part of the constitution, cannot much exceed the number of one for every thirty thousand citizens. These, as we shall find by referring to another part of the constitution, are only equal to the number, which compose the two deliberative bodies of the national legislature. If they are not too numerous to transact, with decency and with tranquillity, the legislative business of the Union, in two places; surely they are not too numerous to perform, with decency and with tranquillity, a single act; in as many places as there are states: for, in their respective states, the electors are obliged to meet.

In the appointment of the electors, there is not reason for the least apprehension of convulsions and tumults. They are to be appointed by each state; and they are to be appointed in such a manner as the legislature of each state shall direct. They will, in all probability, be appointed in one of the two following modes—by the citizens—or by the legislature. If the former; the business will be managed in the same manner as the election of representatives in each state. If the latter; it will be managed by those to whom the different states have intrusted their legislative authority—that kind of authority, the exercise of which requires the greatest degree of coolness and caution. Of either mode, can tumults and convulsions be the apprehended result?

To intrigue and cabal, the election of the president is rendered equally inaccessible, as to convulsions and tumults. Those, who appoint the electors, have a deep interest, or represent such as have a deep interest, in the consequences of the election. This interest will be best promoted by far other arts than those of cabal and intrigue. Such electors, we may, therefore, presume, will be appointed, as will favour and practise those other arts. Some reliance, consequently, may be placed on the characters of the electors.

But this is, by no means, the only circumstance, on which the expectations of the United States rest for candour and impartiality in the election of a president. Other circumstances ensure them. 1. The electors must vote by ballot. Ballot has been called the silent assertor of liberty: with equal justness, it may be called the silent assertor of honesty. 2. The electors must give their votes on the same day throughout the United States. How can cabal and intrigue extend or combine their influence at the same time, in many different places, separated from one another by the distance of hundreds or thousands of miles? 3. Each elector must vote for two persons, without distinguishing which of the two he wishes to be the president. The precise operation of his vote is not known to himself at the time when he gives it. By this regulation, simple but sagacious, cabal and intrigue, could they even be admitted, would be under the necessity of acting blindfold at the election. The sinister plans, formed separately in every part, might and often would be defeated by the joint and unforeseen effect of the whole. For it is the unforeseen effect of the whole, which must finally determine, or furnish materials for finally determining, the election of the president.

His election shall be finally determined in this manner. The person, in whose favour the greatest number of votes is given, provided that number shall be a majority of the whole number of electors, shall be the president. If more than one person have a majority, and, at the same time, an equal number of votes; the house of representatives shall immediately choose one of them for president, by ballot. If no person have a majority of votes of the electors; the house of representatives shall choose, by ballot, a president from the five highest on the list.

After the choice of the president, the person having the greatest number of votes of the electors shall be the vice president. But if there remain two or more having equal votes; the senate shall choose from them the vice president bym ballot.n

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.o

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, 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.p 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,2 set in a regular motion by laws, which were established by the whole body of the nation.q

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 legislature, the power of appointing all officers, whose appointments are not, in the constitution itself, otherwise provided for.r On a former occasions 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 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 beforet 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 recommend 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 in 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.u

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 governed state, there are but few executions; not because many are pardoned, but because there are few criminals. Under the Roman republick, neither the senate nor the consuls ever attempted to grant pardons: even the people never did this, although they sometimes recalled their own sentence.v

In Persia, when the king has condemned a person, it is no longer lawful to mention his name, or to intercede in his favour. Though his majesty were drunk and beside himself; yet the decree must be exectued; otherwise he would contradict himself; and the law admits of no contradiction.w

“Extremes, in nature, equal ends produce;” so in politicks, as it would seem.

The more general opinion, however, is, that in a state, there ought to be a power of pardoning offences. The exclusion of pardons, says Sir William Blackstone, must necessarily introduce a very dangerous power in the judge or jury, that of construing the criminal law by the spirit instead of the letter; or else it must be holden, what no man will seriously avow, that the situation and circumstances of the offender (though they alter not the essence of the crime) ought to make no distinction in the punishment.x

I cannot, upon this occasion, enter into the discussion of the great point suggested and decided, in a very few words, by the learned Author of the Commentaries—that judges and juries have no power of construing the criminal law by the spirit instead of the letter. But I cannot, upon any occasion, suffer it to pass under my notice, without entering my caveat against implicit submission to this decision. I well know the humane rule, that, in the construction of a penal law, neither judge nor jury can extend it to facts equally criminal to those specified in the letter, if they are not contained in the letter. But I profess myself totally ignorant of any rule—I think it would be an inhuman one—that the letter of a penal law may be carried beyond the spirit of it; and it may certainly be carried by the letter beyond the spirit, if judges and juries are prohibited, in construing it, from considering the spirit as well as the letter. But to return to our present subject.

The most general opinion, as we have already observed, and, we may add, the best opinion, is, that, in every state, there ought to be a power to pardon offences. In the mildest systems, of which human societies are capable, there will still exist a necessity of this discretionary power, the proper exercise of which may arise from the possible circumstances of every conviction. Citizens, even condemned citizens, may be unfortunate in a higher degree, than that, in which they are criminal. When the cry of the nation rises in their favour; when the judges themselves, descending from their seats, and laying aside the formidable sword of justice, come to supplicate in behalf of the person, whom they have been obliged to condemn; in such a situation clemency is a virtue; it becomes a duty.

But where ought this most amiable prerogative to be placed? Is it compatible with the nature of every species of government? With regard to both these questions, different opinions are entertained.

With regard to the last, the learned Author of the Commentaries on the laws of England declares his unqualified sentiment—“In democracies, this power of pardon can never subsist; for there nothing higher is acknowledged than the magistrate, who administers the laws: and it would be impolitick for the power of judging and of pardoning to centre in one and the same person. This would oblige him (as the President Montesquieu observes) very often to contradict himself, to make and unmake his decisions: it would tend to confound all ideas of right among the mass of the people; as they would find it difficult to tell, whether a prisoner were discharged by his innocence, or obtained a pardon through favour. In Holland, therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state.

“But in monarchies, the king acts in a superiour sphere; and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him personally engaged, it is only in works of legislature, magnificence, or compassion.”y

Let us observe, by the way, the mighty difference between the person described by Selden, as the first magistrate among the Saxons, and him described by Sir William Blackstone, as the monarch of England since that period. The former was set in regular motion by the laws: the latter is the first mover, who regulates the whole government.

Let me also repeat here, what has been mentioned in another place. One of the most enlightened writers on English jurisprudence imagines, that the power of pardoning is a power incommunicable to the democratical species of government. For the western world new and rich discoveries in jurisprudence have been reserved. We have found, that this species of government—the best and the purest of all—that, in which the supreme power remains with the people—is capable of being formed, arranged, proportioned, and organized in such a manner, as to exclude the inconveniences, and to secure the advantages of all the others.

Why, according to Sir William Blackstone, can the power to pardon never subsist in a democracy? Because, says he, there, nothing higher is acknowledged, than the magistrate, who administers the laws. By pursuing the principle of democracy to its true source, we have discovered, that the law is higher than the magistrate, who administers it; that the constitution is higher than both; and that the supreme power, remaining with the people, is higher than all the three. With perfect consistency, therefore, the power of pardoning may subsist in our democratical governments: with perfect propriety, we think, it is vested in the president of the United States.

The constitution, too, of Pennsylvania, animated by the wise and powerful recommendation, conveyed, by innumerable channels, to the convention, which proposed and framed it, “that they should imitate, as far as it applies, the excellent model exhibited in the constitution of the United States”—the constitution of Pennsylvaniaz vests the power of pardoning in the governour of the commonwealth.

It is by no means, however, a unanimous sentiment, if we collect the publick sentiment from the constitutions of the different states of the Union, that the power of pardoning criminals should be vested solely in the supreme executive authority of the state.

By the constitution of New York,a the governour, in cases of treason or murder, can only suspend the execution of the sentence, until it shall be reported to the legislature, at their subsequent meeting; and they shall either pardon, or direct the execution of the criminal, or grant a further reprieve.

In the state of Delaware the governour possesses the power of granting pardons, except where the law shall otherwise direct.b A similar legislative control is imposed on the governours of Maryland, Virginia, and North Carolina, by the constitutionsc of those states.d

In the states of New Hampshire, Massachussetts and South Carolina, pardons can be granted only after a conviction.e

The president and vice president hold their offices during the term of four years.

The president shall, at stated times, receive, for his services, a compensation, which shall neither be increased nor diminished during the period, for which he is elected; and he shall not receive, within that period, any other emolument from the United States, or any of them.

I here finish what I propose to say concerning the second great division of the national government—its executive authority.

[a. ]Ante. vol. 1. p. 700. 701.

[b. ]Cons. U. S. art. 2. s. 1.

[c. ]Ante vol. 1. p. 728.

[d. ]1. Bl. Com. 210.

[e. ]Bac. on Gov. 29. 30.

[f. ]Id. 41.

[g. ]Id. 70.

[h. ]Millar. 153.

[1. ]King Offa (?–796) was the Mercian king from 757 until his death. “I have been elected to safeguard your liberty not through any merits of my own, but solely through your liberality.”

[i. ]Sulliv. 244. (4to.)

[j. ]Id. 245.

[k. ]Bac. on Gov. 72.

[l. ]4. Bl. Com. 406.

[m. ]Cons. U. S. art. 2. s. 1.

[n. ]By an alteration of the constitution recommended by congress in December, 1803, and which, having received the approbation of three fourths of the states in the Union, has now become a part of the constitution, the regulations mentioned in the text have been changed in the following particulars. The electors are directed to name, in their ballots, the person voted for as president, and, in distinct ballots, the person voted for as vice president, and to transmit to the seat of government distinct lists of the persons so voted for. 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 representatives 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 vice president, 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.

[o. ]Cons. U. S. Art. 2. s. 2, 3.

[p. ]Bac. on Gov. 40.

[2. ]First moving thing.

[q. ]Id. 32, 33.

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

[s. ]Ante. vol. 1. p. 701, 705.

[t. ]Ante. vol. 1. p. 729.

[u. ]Bec. c. 41. 46.

[v. ]Rous. Or. Com. 54. l. 2. c. 5.

[w. ]Mont. Sp. L. b. 3. c. 10.

[x. ]4. Bl. Com. 390.

[y. ]4. Bl. Com. 390. 391.

[z. ]Art. 2. s. 9.

[a. ]S. 18.

[b. ]Cons. Del. s. 7.

[c. ]Cons. Mar. s. 33. Cons. Vir. p. 127. Cons. N. C. s. 19.

[d. ]By the present constitution of Delaware, this legislative control over the power of the governour to grant pardons is destroyed—Art. 3. s. 9. In Vermont, the power of the executive to grant pardons is restrained in cases of treason and murder; in which they have power “to grant reprieves, but not to pardon, until after the end of the next session of assembly.” Cons. c. 2. s. 11. By the constitution of Kentucky, the power of pardoning is, in cases of treason, vested in the general assembly, but the governour may grant reprieves until the end of their next session. Art. 3. s. 11. In Tennessee and Ohio, pardons can be granted only after conviction. Cons. Ten. art. 2. s. 6. Cons. Ohio, art. 2. s. 5. In Georgia likewise, according to her present constitution, the governour can grant pardons only after conviction; and in cases of treason and murder, he can only respite the execution, and make report thereof to the next general assembly, by whom a pardon may be granted. Cons. Geor. art. 2. s. 7. Ed.

[e. ]Cons. N. H. p. 18. 19. Cons. Mas. c. 2. s. 1. a. 8. Cons. S. C. art. 2. s. 7.