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sident 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. (76) 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 "prerogative of par"doning," 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. (77)
(76) 6 Wheaton, 233.
(77) Federalist, No. 74.
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.
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 in"creased 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 Uni❝ted States, or any of them."
"The judges shall at stated times, receive for their "services a compensation, which shall not be diminish"ed 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 postpone 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 attend
ants, 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. (78) 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 upon it. But for inferior officers, not under the same control of public
(78) See Barrington on Stat. 183. 237. 289. Hume's Hist. of Eng. vol. V. 346. 519, and in 12 Coke, 19, it is considered as a prerogative inseparable from the person of the king, of which even an act of parliament cannot deprive him.
opinion, or at least not to the same extent, the payments by those whose business is transacted seems to form a proper fund.
In respect to the members of the legislature, our practice corresponds with that of some, though not all the nations of Europe. In one, to which we are apt more frequently to look than any other, the ancient usage has melted away, and the members of parliament now receive no compensation for their attendance. The consequence is, that only men of fortune can take seats in the house of commons. This is inconsistent with the equality that ought to be found in a republic. Men of virtue and talent, though depressed by poverty, ought to have the avenues to public trust as open to them as to the most wealthy. We will venture to add that the compensation ought to be liberal: a generous people, if it is faithfully served, will never complain. But the compensation ought to bear as exact a proportion as possible to the time employed. An act of congress was passed a few ago (79) in which a gross sum was allotted for an entire session. The dissatisfaction it occasioned produced an early repeal.
The compensation of the president is not to be increased or diminished while he is in office; the legislature shall neither bribe nor terrify him in this mode. The compensations of judges shall not be diminished, but there is no restraint on their being increased, because their offices being in legal contemplation equivalent to offices for life; since the law benignly calculates that a judge will always behave well; the value of money may depreciate, and the salary become inadequate to the support intended to be allowed.
It may be observed, that the president and judicial
(79) March 19, 1816.