with the subdivisions of authority compatible with the purest democracy. It is the office of the judge to convict the guilty; the execution of the sentence is the duty of the executive authority, the time and place of execution are no part of the judgment of the court.* It is true, that during a vacancy in the office of president, which as has been seen, is carefully provided against, there would be no power to grant a pardon, but the moment the office is again filled, the power would be revived.

The power to grant pardons extends to all cases, except impeachments. Some considerations on the subject of impeachments will be presented hereafter; at present, it may not be improper to observe, that not only in the Constitution of the United States, but in those of almost every state in the Union, we find the English doctrine of impeachments introduced, but the difference in respect to granting pardons to the persons impeached is not preserved.

Impeachments are generally efforts of the people of that country through their representatives in the house of commons, to obtain redress before a distinct and independent tribunal, for the mal-practices of the great officers of the crown. No pardon previously granted, can shelter the accused from a full inquiry, and thus his misconduct, if substantiated, is developed and exposed to the nation, but after the impeachment has been solemnly heard and determined, it is not understood that the royal grace is further restrained or abridged.

With us, no pardon can be granted either before or after the impeachment; and perhaps, if this mode of trial is retained at all, it is right that the sentence of a guarded and august tribunal, which, as we shall find, is exceedingly limited in the extent of its punishments, should be excepted from the general power of the president to defeat the effect of the condemnation..

* 4 Blackstone, p. 404.

In respect to another jurisdiction, it may be doubted whether he possesses the power to pardon.

It seems to result from the principle on which the power to punish contempts of either house of the legislature is founded, that the executive authority cannot interpose, in any shape, between them and the offender. The main object is to preserve the purity and independence of the legislature, for the benefit of the people. It acts, therefore, on its own power, without reserence to, or dependence upon, any other. If the executive authority could, by granting a pardon, or, in any other mode, protect those who insidiously or violently interrupted or defeated their operations, the legislature, which is the superior body, would be so far dependent on the good will of the executive. And it would be only, as it were, by the permission of the latter, that it exercised a jurisdiction of so much importance to the people's rights. The Constitution is as silent in respect to the right of granting pardons in such cases, as it is in respect to the creation of the jurisdiction itself. One arises by implication; the other is excluded by implication.

In all other than these two cases, the power is general and unqualified. It may be exercised as well before as after a trial, and it extends alike to the highest and the smallest offences. The remission of fines, penalties, and forfeitures, under the revenue laws, is included in it, and in this shape it is frequently exercised but although it may relieve the party from the necessity of paying money into the treasury, the president cannot, after the money has reached the treasury, compel the restitution of it.

The Constitution no where expressly describes any mode of punishment: it empowers congress in four enumerated cases to provide the punishment. They are treason, piracy, offences against the law of nations, and counterfeiting the securities and current coin of the United States. The power of congress to inflict punishment in other cases is derived from implication

only, but it is necessary to carry the Constitution into effect, and is embraced in the general provision to pass all laws which may be necessary and proper.* The pardoning power is as extensive as the punishing power, and applies as well to punishments imposed by virtue of laws under this implied authority, as to those where it is expressed. The only exceptions are the two cases we have already mentioned, in one of which the power of pardoning is expressly withheld—and in the other it is incompatible with the peculiar nature of the jurisdiction.

In the exercise of the "benign perogative of pardoning," as it has been justly termed, the president stands alone. The Constitution imposes no restraint upon him by requiring him to consult others. As the sense of responsibility is always strong in proportion as it is undivided, a single man will be most ready to attend to the force of those motives, which ought to plead for a mitigation of the rigour of the law, and less inclined to yield to considerations calculated to shelter proper subjects from its punishment. On the other hand; as men generally derive confidence from their number, they might often encourage each other in acts of obduracy, and be less sensible to apprehensions of censure for an injudicious or an affected clemency.t

In addition to this objection, there would be a great inconvenience in imposing on the president the necessity of consulting a body, which, whether already a permanent part of the government as the senate, or specially created for the purpose, it might be difficult to convene on occasions when perhaps an immediate decision would be highly expedient.

* 6 Wheaton, 233.

Federalist, No. 74.

CHAPTER XVIII.

OF COMPENSATIONS TO PUBLIC OFFICERS.

THE principle of compensation to those who render services to the public, runs through the whole Constitution.

The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.

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 shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

The judges shall at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

In the early stages of society, founded on a slender population, before any regular civil institutions took place, the tasks of government were probably performed without stated emoluments. In time, however, it was perceived that the public ought not to have their affairs administered without making compensation to those who postponed their private business for the general benefit. A compensation was therefore either exacted or voluntarily rendered. The former is always irregular and oppressive. We may refer as an illustration of it, to

a practice which in early times prevailed in almost all the kingdoms of Europe. The monarch, for the supply of his court, his officers and attendants, was in the habit of seizing provisions and impressing horses and carriages, for which, an arbitrary and inadequate compensation was sometimes made, but any compensation whatever was frequently withheld.* The practice, though constantly complained of as a heavy grievance, equally inconsistent with the rights of the subject, and the real convenience of the crown, was not abolished in England till the restoration of Charles II. The government of a country is relieved from the necessity of exactions thus mutually injurious, by voluntary provisions on the part of the general society.

In respect to executive and judicial officers, no question has ever arisen: it seems to be universally agreed, that compensations should be made for their services. The manner of making it is various, it is sometimes done by fixed salaries, and sometimes by fees and perquisites, which latter are exactly regulated as to the amount. Arguments are not wanting in favour of each of these plans. If a salary is granted which the officer is to receive, whether he does much or little of the business within his sphere, there is danger of remissness-but to render him wholly dependant on the receipt of casual fees, would be inconsistent with the dignity that ought always to accompany a great executive or judicial office, and would tend to interrupt the dedication of his time to his high and important duties. In those cases, salaries are preferable. A legal remedy for neglect of duty may certainly be found, in addition to the public reprobation, which must always attend

* See Barrington on Stat. 183. 237. 289. Hume's History of Eng. vol. v. 346. 519; and in 12 Coke, 19, it is considered as a prerogrative inseparable from the person of the king, of which, even an act of parliament cannot deprive him.