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cause of this exception will be readily perceived by recurring to the abuse of the pardon power in England, where the Crown was disposed to screen a wicked favorite from the punishment resulting from a conviction of impeachment. If the officers of the Crown were made responsible to the people through the impeaching power of the House of Commons, that responsibility would be of no avail if the Crown could shield its favorite from his well-merited punishment. Accordingly in the act of settlement, twelfth and thirteenth of William III, it was expressly provided, 'that no pardon under the Great Seal of England be pleadable to an impeachment by the Commons in Parliament.'
“The framers of the Constitution of the United States no doubt took this provision of our Constitution from this clause in the act of settlement, which was the result in England of a long struggle between the Crown and the Commons. So that the pardon of the President, while it may avail the guilty party when convicted in an ordinary court of criminal jurisdiction, will not avail to shield the criminal from the judgment of amotion from office and of disqualification to hold office thereafter, which the judgment in impeachment may inflict upon
Akin to his power to reprieve and pardon the President can also issue proclamations of amnesty, although that term does not appear in the Constitution."
Amnesty is an act of sovereign power granting oblivion, or a general pardon for a past offense. It is rarely, if ever, exercised in favor of single individuals, but is usually executed in behalf of certain classes of persons who are subject to trial, but who have not been convicted.74 This power was exercised by Presidents Washington, John Adams, Madison, Lincoln, Johnson and Grant.
On the 25th of December, 1868, President Johnson issued a general proclamation of amnesty by which he granted “unconditionally and without reservation, to all and to every person, who directly or indirectly, participated in the late insurrection or rebellion, a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution, and the laws which have been made in pursuance thereof."
72 1 Tucker on the Constitution, 422, 423.
73 Jenkins v. Collard, 145 V. S., 546, 560. Armstrong v. United States, 13 Wallace, 154. Carlisle v. U. S., 16 Wallace, 148.
74 Brown v. Walker, 161 U. S., 601, 602.
The power of the President to issue this proclamation was made the subject of investigation by the judiciary committee of the Senate which on the 17th day of February, 1869, through Senator Edmunds reported the following resolution: “That, in the opinion of the Senate, the proclamation of the President of the United States, of the 25th of December, 1868, purporting to grant general pardon and amnesty to all persons guilty of treason and acts of hostility to the United States during the late rebellion, with restoration of rights, etc., was not authorized by the Constitution or laws.''75
This report is the only authority which challenges the power of the President to issue such a proclamation. As it was not approved by the Senate and especially in view of the fact that the power to issue such proclamations has been so frequently sustained by the Supreme Court, the resolution cannot be regarded as authority against the exercise of such power by the President.76
75 40 Congress, 3 Sess., Senate Rep. No. 239.
76 In 20th Opinions of Attorneys General, 330, 339, there is a very full and learned discussion of the general power of the President to issue proclamations of amnesty by Hon. William H. Taft, then Solicitor General, now President of the United States, in which the question is discussed from a historical and legal standpoint, with great ability and force. The conclusion arrived at, is that the President has the power under the Constitution without Congressional authority, to issue a general pardon of amnesty.
THE EXECUTIVE, CONTINUED.
He shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
This section is the source of the President's greatest power as a civil officer.
Definitions.-A treaty has been defined to be a contract entered into between independent nations with a view to their public welfare. It is generally made to continue for a long period of time.
Conventions are agreements between nations, but generally relate to matters of minor importance and of shorter duration than treaties.
History of Treaties in the United States.—Historically speaking there are three periods in the legislative life of the United States.
The first period began with the first Colonial Congress and ended with the adoption of the Articles of Confederation. The time covered by this period was from September 5, 1774, to March, 1781, when the country had no written Constitution nor form of government. Congress was the only instrumentality by which the country was governed, and that was held together only by the absolute and imperative necessity of the States being united to act in common unison. In this period, to wit, on the 29th of November, 1775, a committee of secret correspondence was appointed by Congress to correspond with foreign nations friendly to America. After Congress determined that the colonies should strive for independence, it appointed on the 11th of June, 1775, a committee to negotiate treaties with foreign nations. This committee was composed of Benjamin Franklin, Mr. Deane and Thomas Jefferson. Mr. Jefferson being unable to serve, Arthur Lee was appointed in his place.
Prior to the adoption of the Articles of Confederation, this committee, or the commissioners, as they were called, executed three treaties in the name of the thirteen united colonies of America, all with France and signed them in their individual names. The first treaty which the commissioners made is known as the Treaty of Amity and Commerce, and was made on the 6th of February, 1778; it is so remarkable in its construction, so admirable and accurate in its expression, that to this day it is considered a precedent in form and style.
The second period embraces the time from the ratification of the Articles of Confederation in 1781 to the adoption of the Constitution in 1789, a period of eight years. During this time thirteen treaties were made by the United States through commissioners duly appointed for that purpose. In the treaty between the United States and Great Britain, signed in Paris on November 30, 1782, and afterwards known the Definitive Treaty of Peace, the name of the United States was first used as a party to a treaty.
Sixteen treaties were made by the representatives of the United States before the adoption of the Federal Constitution. Under the Articles of Confederation, the power to make a treaty, conference, alliance or agreement was forbidden to a State, unless the consent of “the United States in Congress Assembled” was obtained. And no two or more States were permitted to make any treaty, confederation or alliance with each other without the consent of “the United States in Congress Assembled” was first obtained and unless the purposes for which the same were made and the terms of their contin
1 The members of the committee were Mr. Harrison, Benjamin Franklin, Mr. Johnson, Mr. Dickinson and Mr. Jay. 1 Pitkin's History, uance were accurately specified. Congress could make no treaty or alliance unless nine States-being two-thirds of all the States-assented. The sole and exclusive right and power to enter into treaties and alliances were vested in “the United States in Congress Assembled,” but no treaty of commerce could be made by which the legislative power of the respective States could be restricted from imposing such imposts and duties upon foreigners as their own people were subjected to.
The third period began with the establishment of the Government under the Federal Constitution. Having seen that the Colonial Congress exercised the power to make treaties, and continued to do so under the Articles of Confederation, we will trace the subject through the debates in the Constitutional Convention in order that we may see why the framers of the Constitution placed this great and important power where it is found.
The treaty power. in the Convention.—Mr. Pinckney wished the Senate to have the sole and exclusive power to make treaties.Mr. Hamilton wished the Executive, , with the advice and approbation of the Senate, to have the power.3
The Committee of Detail reported, "The Senate of the United States shall have power to make treaties.
As part of the unfinished business, the subject was then referred to the Committee of Eleven, which reported, “The President by and with the advice and consent of the Senate, shall have power to make treaties,
But no treaty shall be made without the consent of two-thirds of the members present.'S
When this was up in the Convention, Mr. Wilson moved to amend by inserting after the word “Senate," the words “and the Ilouse of Representatives,” so that both bodies would be required to pass a treaty. The amendment was lost, Pennsylvania being the only State voting for it. Mr. Wilson and Mr. King objected to requiring two-thirds of the members present to concur in treaties, saying that they put it into the power of a minority to control the will
2 Journal, 69. 3 Journal, 185. 4 Journal, 455. 5 Journal, 655, 656. Journal, 680.