whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the courts."

§ 678. One modification of this language is required. No doubt, when either of the parties to the treaty engages to perform a particular act, the convention addresses itself to the political departments of the government. But it is only when the act stipulated to be done, is legislative under the Constitution, that Congress must execute the contract; when the act is executive in its nature, the President must execute the contract. One illustration will suffice to explain this distinction. If a treaty should be made between the United States and Great Britain, having for its object the more complete suppression of the slave-trade, each of the high contracting parties might undertake to keep a squadron of armed vessels on the coast of Africa, to search and seize slavers; and it might also be agreed that a mixed commission, or court, of both Englishmen and Americans, should be appointed to sit in the regions infested with slavers, and to adjudicate upon the vessels seized under the treaty. This convention would evidently address itself to the political departments; from its mere language no private rights or duties could arise and be enforced by the courts. But it would address itself partly to Congress and partly to the President. The latter might, on his own motion, despatch and maintain a naval squadron on the coasts of Africa; for the disposition of the navy is left entirely to him as Commander-in-Chief. But the provision in reference to a mixed court or commission would address itself to both departments. Congress alone could create the new office, and provide for the payment of salaries; the President alone could nominate a person to fill the office when created. No private individual, no public officer, no foreign power, could legally compel either department to do what was agreed to be done. The only remedy of Great Britain, in case of refusal, would be war. We see, therefore, that the President, through his treaty

making function, may so bind the Congress, that their act of neglect or refusal to comply with the compact, may give rise to the dread penalty of war. He may so bind the legislature, that they cannot free themselves from the obligation, except by declaring war against the other contracting nation; all their attempts to throw off the compulsive efficacy of the treaty, less stringent than this, would be utterly null and void.

§ 679. In conclusion, I shall add a few remarks upon the scope and extent of this executive function of regulating foreign relations, and its influence and effect upon the general powers of the national government. There is here, as I believe, a mine of power which has been almost unworked, a mine rich in beneficent and most efficacious results. The President may, and must, manage the foreign relations; he may, in the manner prescribed, enter into treaties. To these executive attributes must be added the legislative authority to pass all laws which may be necessary and proper to aid the President in exercising these functions. From this combination there result particular powers in the national government commensurate with the needs of every possible related occasion. We have been too much accustomed to look at the particular grants contained in the Constitution, in order to ascertain what the government may do. But here is a most ample and comprehensive grant. The government not only may, but must, preserve its foreign relations; it not only may, but must, use all such means as shall prevent just causes of war against us by foreign powers. Its international relations are unlimited in number and extent; they affect to a greater or less degree the internal and domestic relations; many of the measures which are necessary to preserve and control them, must act entirely within the national territory, and directly upon private persons or rights. So far as those external relations affect the internal, and so far as the measures appropriate in exercising the function of controlling the external relations act within the interior, and upon private persons and rights, just so far has the government all the power under the Constitution which the exigencies of any occasion can demand. Where the act is legislative in its nature, the Congress may legislate; where the act is executive in its nature, the President may execute.

§ 680. A few examples will serve to illustrate this proposition. In the absence of all express grants to Congress to define and punish offences against the law of nations, or even to define and punish any crimes, there could be no doubt of the complete authority of the national legislature to pass neutrality laws, and all other statutes of the same general class. Fitting out armed vessels in aid of one belligerent, foreign enlistments within our territory, armed expeditions organized against friendly states, would, if permitted, if not repressed, endanger our peaceful relations with the injured nations. These relations require that causes of war should be removed or prevented; the President has ample power, so far as his mere executive functions go; Congress may aid those executive functions by any means and measures which are conducive to the end proposed.

But Congress may, in aid of this function of the President, pass laws which are addressed directly to the separate states, and which control the acts of their governments. The states have no international status; but they may, through their governments, do such acts as endanger the foreign relations of the nation for these acts the government is responsible to the foreign power, and cannot evade the responsibility by asserting its want of control over the state. As the responsibility rests upon it, the power must belong to it. Congress has acted upon this view of its legislative functions, by passing a statute permitting the United States courts to issue the writ of Habeas Corpus in order to inquire into the cause of restraint of any alien, where restrained for an act done by him under the authority of his own government. Thus a prisoner may be removed from the jurisdiction of the state, and transferred to that of the United States. This law was passed upon an occasion when the necessity of such legislation was clearly evident, and when a war with Great Britain was imminent through the obstinacy of the New York authorities in refusing to surrender a British subject into the custody of the nation. This principle may evidently be extended to other cases. I am of opinion that the general government, under its function of controlling international relations, has the power, by proper

legislation, to prevent a state from repudiating its public debt, so far as that debt may be held by foreign citizens. I repeat, that in this Executive attribute, and in the capacity of Congress to pass laws in aid thereof, there is a source of power which has, as yet, been little resorted to, which has even been little thought of, but which is fruitful in most important and salutary results.

§ 681. When we reflect upon the great variety of treaties which may be made, and the compulsive character which the Constitution stamps upon them, the power of the general government, through their means, to control state legislation, is even more plainly apparent. With one illustration I leave this subject. A few years ago, the United States concluded a treaty with France, by which it was mutually stipulated that the citizens of each nation should have the same rights to acquire and hold property of every description in the territory of the other contracting party, that the citizens of the latter possessed by its own laws. The French laws make no difference between the power to acquire and hold personal and real property. Many of the American states, borrowing the rules of the Common Law, make a substantial difference. The treaty on the part of the United States stipulated that the general government should urge upon the states where aliens are incapacitated in any degree from acquiring and holding real estate, to make a change in their local laws in that respect, in favor of French citizens. This latter provision was clearly useless. If the treaty had expressly declared that French subjects may have full powers and rights to acquire and hold lands in any part of the United States, such compact would have overridden, in favor of Frenchmen, any state law forbidding aliens to acquire and hold real property. And such compact would have executed itself; it would have become part of the supreme law of the land; it would have required no Congressional sanction; state courts would have been bound to give it force. In fact, the treaty of 1794, between Great Britain and the United States, contained a provision identical in principle with the one supposed; for the citizens of each country were allowed to hold and inherit lands held

by them or their ancestors in the other country prior to the Revolution. It is, therefore, possible at the present day for a British subject to inherit lands in the United States, notwithstanding the laws of the particular state in which they are situated may deny to an alien this capacity. The validity of the stipulation has been repeatedly recognized and affirmed by the national and state courts, and many existing titles are based upon it.

SECTION V.

THE POWER OF THE PRESIDENT TO GRANT REPRIEVES AND

PARDONS.

§ 682. This power is conferred in the following language : "He shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."

A reprieve is simply the suspension of a sentence, by which its execution is deferred, without there being any remission or change in the substance of the punishment.

A pardon is said by Lord Coke to be "a work of mercy, whereby the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt, or duty." He adds: "All pardons of treason or felony are to be made by the king, and in his name. only, and are either general or special. All pardons, either general or special, are either by act of Parliament, or by the charter of the king." 1 A pardon is frequently conditional, as the king may extend his right upon what terms he please, or annex to his bounty a condition precedent or subsequent, on the performance of which the validity of the pardon will depend.

The general language above quoted must be taken with the following limitations, which, indeed, Lord Coke expressly makes. The right, title, debt, or duty which the king may forgive, must be one due or owing to the state, and not one owing to a private person. Also, the offence must have been

1 3 Inst. 233.