before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." The dissenting judges did not deny the correctness of these doctrines. They simply claimed that, as the statute requiring a test oath did not impose any penalty or punishment, but only prescribed a qualification, the pardon did not reach this case and relieve from the necessity of subscribing to the oath.

§ 691. May the President, under this grant of the Constitution, issue a general pardon to a class of offenders, without designating any particular individuals by name? At the present day such an act of grace is often called a general amnesty. Although the word is current in our literature, and has a quasi-legal signification, yet amnesty is not a technical word of the common law; it is not to be found in the old abridgments, digests, and text-books as a term of art. Some discussion has lately arisen in regard to the comparative scope and efficacy of an amnesty and of a pardon. It has been said that a pardon simply removes the penal consequences of a crime, while an amnesty blots out the crime altogether, and leaves the offender as though it had never been committed. The correctness of any such distinction in the English law may well be doubted; but it is sufficient to say that if an amnesty is something greater and more efficient than a pardon, then it certainly does not fall within the power conferred upon the President to grant pardons. But taking the word amnesty in its popular sense as an act of grace extended to an indeterminate class who have all been guilty of a common offence, may the President issue an amnesty?

§ 692. The English law divided pardons into particular and general. The ancient text-writers and cases constantly refer to this division as one existing and well known. Particular pardons must be granted to determinate, specified criminals. General pardons had a double meaning, and much confusion

will be avoided by taking notice of this fact, that two varieties were embraced in this species. A pardon granted to an individual, forgiving him for all crimes whatever, or for all crimes of a certain class, which he had before committed, was called a general pardon. An act of grace issued to a class of individuals who had been engaged in a common offence, without specifying any particular persons as the recipients of favor, was also known as a general pardon. It cannot be denied that the king possessed the power to use this latter variety of pardons, and that in ancient times he exercised the prerogative with some freedom. Neither can it be denied that in later times the Parliament has usually extended the pardoning grace in such cases by an act or statute of indemnity, and that the kingly power has not been invoked. Still this kind of general pardons, whether granted by the crown or by Parliament, is well known and recognized in the English law; it falls under the denomination pardons; and it is equivalent to an act of general amnesty, as that word is used at the present day.

§ 693. I am strongly inclined to the opinion that the President is clothed with a constitutional authority to issue such a general pardon to a class of persons who have incurred the penalties of the law. Applying the principle firmly established by the Supreme Court, that the power to grant pardons includes all species, it would seem that this special variety was embraced as well as any others. This conclusion is strengthened when we consider the effect of such an act of grace. Its intrinsic nature and its results are identical with those of a particular pardon. The only element of distinction is the vagueness with which the recipients of favor are described; but this uncertainty can always be removed, if necessary, by evidence identifying the person as one of the class mentioned in the terms of the amnesty. But again, in proclaiming a general pardon, the President is doing nothing more than he may confessedly accomplish by pursuing another method which is entirely under his control. He may certainly single out all the persons who compose the class, and confer a sepa rate pardon upon each. As soon as he had gone through the whole number, the results of an amnesty would have been at

tained. If it should be said that in granting a pardon to a specified individual the President would be exercising an amount of discretion, that he would be governed by the peculiar circumstances of the individual case; I answer, as a fact this is doubtless true, but as a prerequisite to a legal forgiveness, it is not true. The President has power to pardon for no cause, as well as for good cause. His exercise of the function in such a manner might expose him to impeachment, but the act itself would be valid.

§ 694. The President's power to issue an amnesty has been denied, because the Supreme Court of the United States decided in United States v. Wilson,1 that a pardon issued before conviction must be pleaded; and it is urged that the act of grace must therefore be a separate deed given to a specified individual. This objection is certainly without weight. It would be sufficient to say that the Constitution is not to be construed by applying to it the ancient common law rules of pleading in criminal cases. But the decision of the court is entirely misapprehended. It was not held that every pardon granted before conviction must be pleaded, but only that every pardon conferred upon a specified individual must be brought to the notice of the court as a fact, and that anciently this must be done by a plea. But even had the court determined as an inflexible rule that every pardon must be pleaded, the inference claimed would not follow, unless the further rule had been laid down that the plea must be accompanied with profert. Indeed, in this case, Chief Justice Marshall was simply conforming to a familiar practice of the English courts. As a pardon is not a general law, the judges cannot take cognizance of its existence; it must be brought before them in the same manner as any other fact. There is no difference in this respect between a particular and a general pardon issued by the king; each must be pleaded, when it is relied upon as a defence, and both would be pleaded with the same ease and in the same manner. But if the act of grace is embodied in a general statute of Parliament, the judges take cognizance thereof, and it need not be brought to their notice. An 17 Peters' R. 150.

English writer of authority gives the following rules as the result of ancient cases.1"When the prisoner has either personally obtained a pardon, or is included in a general act of grace, he must plead that privilege specially. But when Parliament pardons all persons without any description of their offences, they need not plead." The objection I am considering seems therefore to fail both in its facts and in its infer

ences.

§ 695. II. The Powers of Congress over Pardons. — Is any legislative action needed to aid the President, or can any legislative action restrict him, in the exercise of his function? Plainly not. Pardoning is clearly a kind of executing, not of making laws. As far as authority is conferred upon the Chief Magistrate, it can neither be extended or limited by Congress. A statute passed to give construction to the Constitution, and to confine its operation to particular classes of pardons, would be a palpable usurpation of the judicial function. Thus, an act of Congress which should take away the President's power to confer conditional pardons, or to grant pardons before trial, would be absolutely void. The same would be true of a law which should assume to restrain him from proclaiming a general amnesty, if the latter is included. within the terms of the Constitution.

§ 696. Has Congress any independent authority over the subject? None is conferred in express language, and if any exists, it must be implied from the power to define and punish crimes. The legislature may, beyond doubt, relieve existing offenders from the penal consequences of their acts, by repealing the law which defined the crime and apportioned the punishment. Thus the results of a general pardon or amnesty would be reached in an indirect manner. But while the statute remains in force, and the penalties are impending, it would seem that the national legislature cannot interpose and extend an act of grace either to a specified criminal, or to an indeterminate class. The general grant of power to the President would seem to cover the whole case, and to leave no room for legislative action. Again, a pardon is confessedly a 1 1 Chitty's Cr. Law, 466.

step in the execution of laws, and the American Congress, unlike the British Parliament, has no executive function. It may apportion the punishment; it may make that punishment conditional; but when it has once decided upon the penalty, its authority would seem to be ended. Remission is a proper act of the President and not of the legislature.

SECTION VI.

THE POWER OF THE PRESIDENT TO GIVE INFORMATION AND TO RECOMMEND MEASURES TO CONGRESS.

§ 697. "He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." The necessity of the first clause is apparent. By virtue of his official position the President becomes acquainted with a vast detail of facts which are most important for Congress to know, but which that body possesses no means of knowing except through the Executive. Thus the items and total amount of the revenue and of the expenditure, upon which so much of the economical legislation is based; the situation of our relations with foreign countries; the number and disposition of the land and naval forces; the character, cost, and condition of the armaments and supplies, these and a thousand other matters of detail are first known by the Executive Department, and must be communicated by it to Congress, as the basis of the annual or occasional legislation.

§ 698. From the very organization of the present government the practice has been uniform for the President to communicate the greater part of this information in a message sent to Congress at the opening of each session. This message is accompanied by a full and minute detail of the various operations of each department during the year. The President may at other times transmit information; and the Congress, or either House, may request more particular statements respecting any matter deemed by them important. When a demand is made, the President may, and often does, withhold the facts,