power. Consti 1. The executive power shall be vested in a President The executive of the United States of America. He shall hold his office tution, Art. II, during the term of four years. Constitution, Art. II, sec. 1. sec. 1. President as Chief. 2. The President shall be Commander in Chief of the Power of the Army and Navy of the United States and of the militia of Commander-inthe several States, when called into the actual service of Sec. 2, ibid. the United States,' he may require the opinion, in writing, of the principal officer in each of the Executive Depart- The Cabinet. ments upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, The executive power. The executive power is vested in a President, and, as far as his powers are derived from the Constitution, he is beyond the reach of any other Department, except in the mode prescribed by the Constitution through the impeaching power. Kendall v. U. S., 12 Pet., 524, 610; Marbury v. Madison, 1 Cranch, 137, 166. Execution of the laws.--The President is required to see that the laws are faithfully excented, but he is not obliged to execute them himself. 4 Opin. Att. Gen., 515; Williams c. U.S.. 12 Pet., 524, 610. The President speaks and acts through the heads of the several Departments in relation to subjects which appertain to their respective duties. Wilcox r. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755; Kunkler. U.S., 122 U. S.. 543, 557. As a general rule, the direction of the President is presumed in all instructions and orders issuing from the competent Department. 7. Opin. Att. Gen., 453. In a matter which the law confides to the pure discretion of the Executive, the decision of the President, or proper head of Department, on any question of fact involved is conclusive, and is not subject to review by any other authority in the United States. 6 Opin. Att. Gen., 226. "Marbury v. Madison, 1 Cr., 137, 166. Powers as Commander in Chief-As Commander in Chief he is authorized to direct the movements of the land and naval forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operations of our institutions and laws beyond the limits before assigned to them by the legislative power. Fleming. Page, 9 How., 603, 615. The power of command and control reserved by the Crown was placed by the Constitution in the hands of the President. Street v. Ï ́. S., 24 C. Cls. R., 230; 25, ibid, 515, 113 U. S., 299. Parer to establish rules and regulations.—The power of the Executive to estab create anew. May form military governments in occupied territory. As an incident of the exercise of belligerent rights, the President may form military and civil govern The pardoning power. Term of office. Treaty making power. except in cases of impeachment.' Constitution, Art. II. sec. 2. 3. The term of four years for which a President and Vice-President shall be elected shall in all cases commence on the 4th day of March next succeeding the day on which the votes of the electors have been given. 4. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds Appointing of the Senators present concur: and he shall nominate, power. ments in the territory of the enemy occupied by the armies of the United States. Cross r. Harrison, 16 How., 161, 190, 193. The Grapeshot, 9 Wall., 129, 132. Hen also institute temporary governments within insurgent districts occupied by th national forces. Texas White, 7 Wall, 700, 750, May establish courts in occupied territory Limitation.-The courts establistet or sanctioned in Mexico, during the war, by the conamanders of the United States forces, were nothing more than the agents of the military power, to assist it in 15 serving order in the conquered territory, and to protect the inhabitants in thr persons and property, while it was occupied by the American armies. They w subject to the military power, and their decisions were under its control whene the commanding officer thought proper to interfere. Neither the President nor al military oflicer can establish a court in a conquered country, and authorize 1* ** decide upon the rights of the United States, or of individuals in prize cases, to ̈* administer the laws of nations Jecker e. Montgomery, 13 How, 498, 515. 1 Grapeshot, 9 Wall., 129, 132. For anthority to employ secret agents in time of war, see Totten r. U. S., 92 U. s. 105, 107. For powers and duties of the Executive in connection with the Army, ti Militia, and the Army Regulations, etc, see the chapters so entitled. The pardoning power.-A pardon is an act of grace proceeding from the powe intrusted with the execution of the laws, which exempts the individual on whon? is bestowed from the punishment the law inflicts for à crime he h is committed. is the private though official act of the executive magistrate, delivered to the itd. vidual for whose benefit it is intended, and not communicated officially to the cour U. S. e. Wilson, 7 Pet. 150, 161. Coke, 3d Inst. 233. The power which the Con «! tution confers upon the President to grant pardons can not be controlled or limited in any manner, by Congress. Ex parte Garland, 4 Wall., 333, 380; U. S. r. Kiri 13 Wall, 128, 147; 4 Opin. Att. Gen. 458. Delivery and aceptance. The pardon is a private though official act. It is of cial in that it is the act of the Executive; it is private in that it is delivered to Uindividual and not to the court. It must be pleaded, or brought officially to te knowledge of the court, in order that the court may give it effect in any given cas There is nothing peculiar in it to distinguish it from other acts. It is a deed to ? validity of which delivery is essential, and the delivery is not complete without acceptance. It may be rejected by the person to whom it is tendered and, if rejecte there is no power in the court to force it upon the individual. U. S. c. W ́ilson, Pet.. 150. Effects. Subject to exceptions therein provided, a pardon by the President rester s to its recipient all rights of property lost by the offense pardoned, unless the pr erty has, by judicial process, become vested in other persons. Osborn e. V. S,31 U.S., 474, 5 Opin. Att. Gen. (2d ed.), 532. Power to miti ate and commute, The President may, by an exercise of the par doning power, mitigate or commute a punishment imposed by any court of the United States. Ex parte Weils, Is How, 357 In re Ross, 140 U. S., 453. In mitigatingt sentence of a naval court martial, the President may substitute a suspension fora term of years without pay, for an absopite dismissal from the service; as suspension is but an inferior degree of the same punishment. 1Opin. Att. Gen., 433, Conditional pardous. The language of the Constitution is such that the power of the President to pardon conditionally is not one of inference, but is conferred terms, the language being “to grant reprieves and pardons" which includes aires Inte as well as conditional pardons. Under this power the President can grant a conditional pardon to a person under sentence of death, offering to commute U. punishment into an imprisonment for life. If this is accepted by the convict, he 'is no right to contend that the pardon is absolute and the condition of it void. E parte Wells, 1s How, 307, Osborn e. U S., 91 U. S., 474; U. S. ℗. Wilson, 7 Pet., B. When a pardon is granted with conditions annexed, the conditions must be performe before the pardon is of any effect. Waring . I S., 7 C. Cls. R.. 501. One s claims the benefit of a pardon must be held to strict compliance with its condities Haym 2. U. S., 7 C. CIS R, 443, Scott r. U. S., 8 ibid., 457. The condition annexed to a pardon must not be impossible, unusual, or illegal, but it may, with the conser of the prisoner, be any punishment recognized by the statutes, or by the comm* law as enforced by the State. Leer. Murphy, 22 Grat. (Va.), 789. Time of exercise. -The President of the United States has the conditional powerta pardon as well before trial and conviction as afterwards; but it is a power only to e exercised with reserve and for exceptional considerations. 6 Opin. Att. Gen., ibid., 341; 2 ibid., 275, 5 ibid., 6×7. Ex parte Garland. 4 Wall, 333; Dominick " Davidson, 44 Ga.. 457, 5 Blair . Com., 25 Grat. (Va.), 850, It is competent for the President to grant a pardon after the expiration of the term of sentence, thereb relieving from consequential disabilities. Stetler's Case, 1 Phil., IX, 38; Com Buh, 2 Duy. (Ky ). 264 Limitation upon the pardoning power. The Constitution gives to Congress tha power to dispose of the public property and to the President only the power in 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. Constitution, Art. II, sec. 2, par. 2. The pardon crimes, and the President, having no title to forfeited property, can not restore it, though he may pardon the offense which caused the forfeiture. Property confiscated by judgment to the United States is beyond the reach of executive clemency and is absolutely national property. Knote r. U. S., 10 C. Cls. R., 397, 496 U.S. r. Six Lots of Ground, 1 Woods, 254. Osborn r. U. S., 91 U. S., 474, 477. Pleading. A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. The pardon may possibly apply to a different person or to a different crime. It may be absolute or conditional. It may be controverted by the prosecutor and must be expounded by the court. These circumstances combine to show that this like any other deed, ought to be brought before the court by plea, motion, or otherwise. Ú. S. r. Wilson, 7 Pet., 150, 161: Ex parte Reno, 66 Mo., 266. The recital of a specific, distinct offense in a pardon by the President, limits its operation to that offense, and such pardon does not embrace any other offense for which separate penalties and punishments are provided. Ex parte Weimer, 8 Biss., C. Ct., 321. The conviction having been of two offenses, and the pardon reciting only one, the pardon operates upon the offense recited State r. Foley, 15 Nev., 64. Public offer. – An office is a public station, or employment, conferred by the appointment of Government. The term embraces the ideas of tenure, emolument, and The duties are continuing and permanent, not occasional and transi duties. tory and are defined by rules prescribed by Government and not by contract. A Government office is different from a Government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other. U S. e. Hartwell 6 Wall,385, 394; U. S. r. Maurice, 2 Brockenbrough, 103. A public officer is the incumbent of an office **who exercises continuously, and as a part of the regular and permanent administra tion of the Government, its public powers, trusts and duties." Sheboygan Co. v. Parker 3 Wall, 93, 96. Unless a person in the service of the Government holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is net strictly speaking, an officer of the United States. U. S. r. Mouat, 124 U. S. 303, 307: U S. e Germaine, 99 U. S.. 308, 510. Appointments to office. Appointments provided for by act of Congress merely in general terms must be made by and with the advice and consent of the Senate. 6 Opm. Att. Gen., 1 When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide that certain acts shall be done by the appointee before he shall enter on the possession of the office under the appointThese acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the Executive: all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed, and when the person has performed the required condition his title to enter on the possession of the office is also complete. S. Le Baron, 19 How., 73, 78; U. S. e. Stewart, ibid., 79; Marbury e. Madison, I Cranch, 137 ment. Powers of officers. - All the officers of the Government, from the highest to the lowest, are but agents with delegated powers, and if they act beyond the scope of their delegated powers their acts do not bind the principal. U.S. P. Max well Grant, 21 Fed. Rep., 19. An officer can only bind the Government by acts which come within a just exercise of his official power. Hunter v. U. S., 5 Pet, 173, 178. The Floyd Acceptances, 7 Wall. 666; State v. Hastings. 12 Wis., 596. It is a question of law for the court whether an act is a part of the official duty of a public officer. U.S. v. Buchanan, & How, 83. Every public officer is required to perform all duties which are strictly official, although they may be required by laws passed after he comes into office, and may be cumulative upon his original duties, and although his compensation there for be wholly inadequate. In such case he must look to the bounty of Congress for any additional reward. Andrews v. U. S.. 2 Story, 202. An officer is bound to use that care and diligence in the discharge of his duties that a conscientious and pendent man, acting under a just sense of his obligations, would exercise under the circumstances of a particular case, and if he fails and neglects to do so he is culpaU.S. v. Baldridge. 11 Fed. Rep., 552. Presumptions as to official acts. The acts of an officer to whom a public duty is assigned, within the sphere of that duty, are prima facie within his power. U.S. v. Arredondo, 6 Pet.. 691; U. S v. Clarke, 8 ibid., 436, 452; Percheman v. Ú. S., 7 ibid., 51; Delassus r. V. S., 9 ibid., 117, 134: Strother v. Lucas, 12 ibid., 410, 438: U. S. v. Peralta, 19 How.. 343, 347. When a particular functionary is clothed with the duty of deciding a certain question of fact, his decision in the absence of fraud, is conclusive. Logan r. The County, 16 Wall., 6. He who alleges that an officer intrusted with important duty has violated his instructions must show it. The courts ought to President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. Ibid., par. 3. require very full proof that an officer has transcended his powers before they so determine. U. S. v. Peralta, 19 How., 343, 347; Delassus v. U. S., 9 Pet.. 117, 134. When a public officer is to do any act on proof of certain facts, of the competency and sufficiency of which he is to judge, it is to be presumed, from the doing of the act, that the proof was regularly and satisfactorily made, and its sufficiency is not subject to reexamination. Phil. and Tren. R. R. Co. v. Stimpson, 14 Pet.. 448. Tenure. The power to appoint includes the power to remove, when the Constitution has not otherwise provided, and when the laws of Congress have not fixed a tenure of office. Ex parte Hennen, 13 Pet., 230; U. S. v. Avery, Deady, 204. When Congress, by law, vests the appointment of inferior officers in the heads of Departments, it may limit and restrict the power of removal as it deems best for the public interests. U.S. v. Perkins, 116 U.S.. 483. Resignation That a public office may be vacated by resignation is established by long and familiar practice, and is recognized by express provision of law. Nor can there be any doubt that a resignation may be effected by the concurrence of the officer and the appointing power; its essential elements are an intent to resign on the one side and an acceptance on the other. It may be either in writing or by parol, expressly or by implication. To perfect a resignation nothing more is necessary than that the proper authority manifest in some way its acceptance of the offer to resign. It then becomes effectual, and operates to relieve the incumbent either immediately or on the day specially fixed according to its terms. An offer to resign is revocable prior to acceptance; after acceptance and before it has taken effect it may be modified, or withdrawn by consent of both parties, but this control extends no further. When a resignation once takes effect the official relations of the incumbent are ipso facto dissolved; he has no longer any right to, or hold upon, the office. 14 Opin. Att. Gen., 259. |