to in the note of the Chevalier Huygens. The courts of justice alone have the power to decide upon the ownership of the property; and the court, upon proper proceedings, will award the possession to the party who may appear to be entitled. 2d. As there is no stipulation by treaty between the two governments for the mutual delivery of fugitives from justice, I think the President would not be justified in directing the surrender of the person upon whom a part of the stolen articles may have been found, in order that he may be brought to trial in the country where he is supposed to have committed the robbery.

This opinion at bottom involves the proposition that there is no international common law on the subject of extradition; therefore this consequence: that if the President should seize to surrender he would act without law. Exactly; this is now the view of the Supreme Court. In many governments the executive would have some power to act under, in answer to such requests of foreign governments, if it seemed fit, not in ours with the constitution in the way.

A most usual executive function is the power of pardon. As would be expected, the cases that involve the power of pardon grant to the executive entire independence in the exercise of that power. It is never possible to inquire into the reasons upon which the pardon was granted; since the grant of the pardon was wholly within the powers of the executive. This does not quite dispose of the whole question. The subject of pardons is divisible by two intersecting lines of cleav age; one divides fines or forfeitures due to an individual from those due to a government; the other divides con

tempt proceedings from other proceedings. Thus there are four possible cases: Criminal convictions with a fine payable to the United States; criminal convictions with a fine payable to an individual; contempt commitments to vindicate the dignity of a court; and contempt proceedings in behalf of an individual. Under the constitutions the chief executive has usually the power to grant pardons and reprieves; and the lesser power to remit fines and forfeiture, if not expressed, will be implied.

This general analysis suggests the inquiry whether the power of pardon can be exercised in all cases consistently with our constitutional separation of powers. In (3) and (4) above, for instance, would not the executive by the pardon of a contempt interfere with the functions of the judiciary? This query was raised in a recent case, In Re Nevitt, 117 Fed. 448 (1902). Two county judges were ordered by mandamus from a cir cuit court to levy a tax for the payment of a judgment recovered against the county. The judges refused and were imprisoned for contempt. Thereupon, they filed a petition for habeas corpus; in the course of this proceeding they asked for a stay of proceedings in order to allow a petition to the President for a pardon. This application SANBORN, the Circuit Judge, refused; holding that the commitment was not in execution of the criminal laws of the nation, but was to secure a suitor in his rights in the course of a judicial proceeding, On that point he said in part: That in such a pardon the executive would go beyond his constitutional powers into matters confided in another department. In other words, has the executive the power, if he chooses to exercise it, of drawing to himself all the real judicial power

of the nation which the constitution vested by express terms in the courts by means of his supreme control of the inherent and essential attribute of that power,-the authority to punish for disobedience to the orders of the courts? These questions seem to suggest their answers. The judicial power is granted to the courts in its entirety by means of the constitution, including the inherent and indispensable attribute of that power, the authority to punish for disobedience of their orders to the Federal Courts, free from the control or supervision of the executive department of the government, to the same extent that the entire executive power of the nation is vested in the President free from the supervision or control of the courts. This is a special case; but it seems sound-another example of the constitutional limitation upon the executive.

(129)

Adm. Law-9.

The execution of law involves a particular case. The law is a general rule; the administration of it is the application to a particular case of that general rule. That raises the next question: to what particular cases shall this law be applied? That sometimes is a matter requiring much judgment on the part of the administration; at other times it is a matter requiring little determination by the administration, which depends altogether upon the law and the fact. If the law is general the application requires much discretion; if the law is particular the application requires no discretion. Grant that the administration must obey the law; in the first case the command is conditional, it is within the discretion of the administration to determine whether the conditions exist; in the second case, since the command is absolute, the administration must obey without assertion. These distinctions are put forward at this stage as a working hypothesis.

The leading case in any discussion of this hypothesis must always be Marbury v. Madison, 1 Cranch, 137 (1803). This was a motion for mandamus against Madison, the Secretary of State, to compel him to deliver to Marbury his commission as Justice of the Peace for the District of Columbia. The commission had been made out by direction of Adams, the President outgoing; it had then been executed and sealed by the Secretary of State outgoing, but had not been delivered to the appointee. Under these circumstances the new Secretary upon his accession to office had withheld the commission, acting, it is believed, under the instructions of Jefferson, the President incoming. Thus the issue was raised for the first time in the national government whether the judiciary should give directions to the executive in matters pertaining to that department.

MARSHALL, the new Chief Justice, accepted the issue with the greatest pleasure. This opinion is elaborate: In the order in which the court has viewed this subject the following questions have been considered and decided: (1) Has the applicant a right to the commission he demands? (2) If he has the right, and that right has been violated, do the courts afford him a remedy? (3) If they do afford him a remedy, is it a mandamus issuing from this court?

(1) The President is to nominate, appoint and commission all officers of the United States. Appointment being the sole action of the President, it must be completely evidenced by every act to be performed by him, and this act has to be done by the President. His signature is the last act. Some point of time must be taken when the power of the executive over an officer