CHAPTER XVI.

ON COMMUNICATIONS TO BE MADE BY THE PRESIDENT TO CONGRESS.

IT is the duty of the president from time to time to give congress information of the state of the union; but although this alone is expressly mentioned in the Constitution, his communications naturally embrace a wider scope than internal affairs. Under the expression, he is to receive ambassadors, the president is charged with all transactions between the United States and foreign nations, and he is, therefore, the regular channel through which the legislature becomes informed of the political situation of the United States in its foreign, as well as its domestic relations; yet it has been always understood that he is not required to communicate more than, in his apprehension, may be consistent with the public interests. Either house may at any time apply to him for information; and, in the regular course of government, can apply only to him, where the matter inquired of, is principally under his superintendence and direction, although they frequently exercise the right to call upon the chief officers of executive departments, on matters peculiarly appertaining to them, and in like manner occasionally refer to the attorney general of the United States on subjects appropriate to his office. The applications directly to the president, are generally

accompanied with a qualification evincing a correct sense of the obligation on his part to avoid or suspend disclosures, by which the public interest, that both are bound to keep in view, might be affected.

Such disclosures the legislature in general expressly disclams. In recurrence to our history, it must be obvious, that these official communications are chargeable with being rather more full and liberal than is common in other countries. In support of the practice it has been said, that in republics there ought to be few or no secrets; an illusory opinion, founded on ideal conceptions, and at variance with the useful practice of mankind. If all the transactions of a cabinet, whether in respect to internal or external business, were regularly exhibited to the public eye, its own operations would be impeded; the public mind be perplexed, and improper advantages would sometimes be taken. Foreign powers, pursuing as they invariably do, a different course themselves, would justly object to such proceeding.

The president is also required to recommend to their consideration such measures as he may deem expedient. This is an obligation not to be dispensed with. Exercising his office during the recess of the legislature, the members of which, when they return to the mass of citizens, are disengaged from the obligatory inspection of public affairs; supplied by his high functions with the best means of discovering the public exigencies, and promoting the public good, he would not be guiltless to his constituents if he failed to exhibit on the first opportunity, his own impressions of what it would be useful to do, with his information of what had been done. He will then have discharged his duty, and it will rest with the legislature to act according to their wisdom and discretion. These communications were formerly made in person at the opening of the session, and written messages were subsequently sent when necessary, but the whole is now done

in writing. It was formerly the practice to, return answers, which as a mere matter of ceremony is now disused. The course pursued at present is to refer the message to a committee, who commonly report an analysis of it, and the parts on which it appears necessary to act, are referred to other committees to prepare them for the deliberations of the whole.

CHAPTER XVII.

OF THE POWER TO GRANT PARDONS.

A POWER to grant reprieves and pardons is expressly given to the president.

That punishments should in all cases be strictly appropriate to the offence and certain in their execution, is indeed the perfection of criminal law, but the fallibility of human judgment would render an inflexible rule to this effect, too severe for human nature. An act may fall within the purview of the law and justly subject the party to conviction; yet there may be alleviating circumstances, which induce even those who deliver the verdict or pronounce the judgment, to feel repugnance at its being executed: but it would tend to overthrow the barriers of law, if the tribunal which is to decide on the guilt or innocence of the accused, were permitted to intermix other considerations. At first view, benevolent minds would not object to the admission of these principles in favour of the accused, on his trial, but the general interests of society have a stronger claim on the humanity of feelings justly regulated, than the particular case of the individual. The general interest requires that the administration of justice should not be diverted from its settled course, by an erroneous assumption of power and an irregular distribution of justice.

If the law is plain, the duty of the tribunal is to conform to it, because the law is as compulsory on the tribunal as on the offender.

But the condition of society would be miserable if the severity of the law could in no form be mitigated, and if those considerations which ought not to operate on a jury or a judge could have no influence elsewhere.

Independently of other views, we may instance the case of treason against the state. Public policy may require that the offenders, though convicted, should be forgiven: severity may increase the opposition of that part of the community which was engaged in the combination; mercy may produce conciliation and submission; but if the guilt is proved, no such considerations can be admitted into the deliberations of the court. It is therefore expedient and wise, to deposit in some other part of the government, the power of granting pardons; a power, which notwithstanding the strange assertions of Blackstone and Montesquieu, is not inconsistent with the nature of a democratic government.* The most illustrious minds are sometimes seduced from plain and obvious truths by the illusions of theory, and when we are told that the power of pardon can never subsist in democracies, because nothing higher is acknowledged than the magistrate who administers the law, and because it would confound all ideas of right among the mass of the people, as they would find it difficult to tell whether a prisoner was discharged by his innocence, or obtained a pardon through favour, we must at once perceive that the position is fallacious, by being too general.

The inconvenience suggested in the latter member of it, corresponds indeed with what has been already observed, if confined to the judicial tribunal that originally acts on the case, but the first part of it indicates a want of acquaintance

* 4 Blackstone, 397. Montesquieu, b. 6, c. 5.