Page images
[ocr errors][merged small][merged small][merged small]


[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors]




1. The Executive power.

2. Power of the President as Commander in Chief. The Cabinet. The pardoning



3. Term of office.

4. Treaty making power. Ap-
pointing power.

1. The executive power shall be vested in a President The executive power. Constiof the United States of America. He shall hold his office tution, Art. II, during the term of four years. Constitution, Art.

sec. 1.

II, sec. 1.

President as


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 1a his powers are derived from the Constitution, he is beyond the reach of any other I partuent, except in the mode prescribed by the Constitution through the impeachang power. Kendall e. 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 executed, but he is not obliged to execute them himself. 4 Opin. Att. Gen., 515; Williams r. 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 d tire Wilcox r. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755; Riker. US 12 U.S.. 543, 557. As a general rule, the direction of the President resumed in all instructions and orders issuing from the competent Department. 79pm. Att. Gen.. 433. 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 quration 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.,


Posters as Commander in Chief-As Commander in Chief he is authorized to 4. ret 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 con*er and Kalidue 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 en argy the boundaries of this Union, nor extend the operations of our institutions www.beyond the limits before assigned to them by the legislative power. Flem. #g* Page, 9 How., 603, 615, The power of command and control reserved by the frown was placed by the Constitution in the hands of the President. Street v. U.S., SAU CAR 230 25. ibid, 515, 113 U. S., 299.

Power to establish rules and regulations.—The power of the Executive to estab
rah rules and regulations for the government of the Army is undoubted; *
The power to establish implies, necessarily, the power to modify or repeal, or to
1. S. Eliason, 16 Pet., 291,301. The Army Regulations, when sane-
tated by the President, has the force of law because it is done by him by the
uctiafy 6f law. U. S. r. Freeman, 3 How, 556, 567.

Create WD #

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


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,

Term of office.
Sec. 152, R. S.

Treaty making power.


ments in the territory of the enemy occupied by the armies of the United States. Cross v. Harrison, 16 How., 164, 190, 193. The Grapeshot, 9 Wall., 129, 132. He may also institute temporary governments within insurgent districts occupied by the national forces. Texas v. White, 7 Wall.. 700, 730.

May establish courts in occupied territory-Limitation.-The courts established or sanctioned in Mexico, during the war, by the commanders of the United States forces, were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory, and to protect the inhabitants in their persons and property, while it was occupied by the American armies. They were subject to the military power, and their decisions were under its control whenever the commanding officer thought proper to interfere. Neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the laws of nations. Jecker v. Montgomery, 13 How., 498, 515. The Grapeshot, 9 Wall., 129, 132.

For authority to employ secret agents in time of war, see Totten v. U. S., 92 U. S., 105, 107. For powers and duties of the Executive in connection with the Army, the Militia, and the Army Regulations, etc., see the chapters so entitled.

The pardoning power.-A pardon is an act of grace proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. U. S. v. Wilson, 7 Pet. 150, 161. Coke, 3d Inst. 233. The power which the Consti tution confers upon the President to grant pardons can not be controlled or litaited, in any manner, by Congress. Ex parte Garland, 4 Wall., 333, 380; U. S. v. Klein, 13 Wall., 128, 147; 4 Opin. Att. Gen., 458.

Delivery and acceptance. The pardon is a private though official act. It is offi cial in that it is the act of the Executive; it is private in that it is delivered to the individual, and not to the court. It must be pleaded, or brought officially to the knowledge of the court, in order that the court may give it effect in any given case. There is nothing peculiar in it to distinguish it from other acts. It is a deed to the 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 rejected, there is no power in the court to force it upon the individual. U. S. v. Wilson, 7 Pet., 150.

Effects.-Subject to exceptions therein provided, a pardon by the President restores to its recipient all rights of property lost by the offense pardoned, unless the prop erty has, by judicial process, become vested in other persons. Osborn v. U. S., 91 U. S., 474; 5 Opin. Att. Gen. (2d ed.), 532.

Power to mitigate 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 Wells, 18 How.. 307; In re Ross, 140 U. S., 453. In mitigating the sentence of a naval court-martial, the President may substitute a suspension for a term of years without pay, for an absolute dismissal from the service; as suspension is but an inferior degree of the same punishment. 1Opin. Att. Gen., 433,

Conditional pardons.-The language of the Constitution is such that the power of the President to pardon conditionally is not one of inference, but is conferred in terms, the language being "to grant reprieves and pardons" which includes abso lute 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 that punishment into an imprisonment for life. If this is accepted by the convict, he has no right to contend that the pardon is absolute and the condition of it void. Ex parte Wells, 18 How., 307, Osborn v. U. S., 91 U. S., 474; U. S. v. Wilson, 7 Pet., 150. When a pardon is granted with conditions annexed, the conditions must be performed before the pardon is of any effect. Waring v. U. S., 7 C. Cls. R., 501. One who claims the benefit of a pardon must be held to strict compliance with its conditions. Haym v. U. S., 7 C. Cls. R., 443; Scott v. U. S., 8 ibid., 457. The condition annexed to a pardon must not be impossible, unusual, or illegal; but it may, with the consent of the prisoner, be any punishment recognized by the statutes, or by the common law as enforced by the State. Lee v. Murphy, 22 Grat. (Va.), 789.

Time of exercise.-The President of the United States has the conditional power to pardon as well before trial and conviction as afterwards; but it is a power only to be exercised with reserve and for exceptional considerations.6 Opin. Att. Gen., 20; L ibid., 341; 2 ibid., 275; 5 ibid., 687; Ex parte Garland, 4 Wall., 333; Dominick v. Davidson, 44 Ga., 457; 5 Blair v. Com., 25 Grat. (Va.), 850. It is competent for the President to grant a pardon after the expiration of the term of sentence, thereby relieving from consequential disabilities. Stetler's Case, 1 Phil., IX, 38; Com. v. Bush, 2 Duv. (Ky.), 264.

Limitation upon the pardoning power.-The Constitution gives to Congress the power to dispose of the public property and to the President only the power to

« PreviousContinue »