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CHAPTER I.

THE EXECUTIVE.

Par

1. The executive power.
2. Power of the President as Commander

in Chief; the Cabinet; the pardoning

power. 3. Term of office. 4. Succession of Vice-President. 5. Succession to President and Vice

President. 6. The same.

| Par.
7. The treaty-making power; appoint-

ments to office.
8. Recess appointments.
9. The same.
10. Commissions.
11. Notification of appointments to Sec-

retary of the Treasury. 12. The same, nominations, rejections,

etc.

.

Consti

sec. 1.

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. 11, sc. 1.

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 Communer in the several States, when called into the actual service of the United States;" he may require the opinion, in writing,

Chiei.

Sec. 2, ibid.

'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 1'. 0. S., 12 Pet., 524, 610; Marbury 1. Madison, 1 Cranch, 137, 166.

Esecution of the laws.—The President is required to see that the laws are faithfully executed, but he is not obliged to execute them himself. IV Opin. Att. Gen., 515; Williams r. U. S., 12 Pet., 524, 610. The President speaks and acts through the heals of the several Departments in relation to subjects which appertain to their respertive duties. Wilcox v. Jackson, 13 Pet., 498, 513; Wolsey v. Chapman, 101 U. S., 755; Runkle r. 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. VII 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. VI Opin. Att. Gen., 226. Marbury v. Madison, 1 Cr., 137, 166. The President can not be restrained by injunction from executing a law of Congress. Mississippi r. Johnson, 4 Wallace, 475; Bates r. Taylor, 11 S. W. Rep., 266.

? 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 subwlue 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 2. Page, 9 How., 603, 615. The power of command and control reserved by the Crown was

The Cabinet. of the principal officer in each of the Executive Depart

ments upon any subject relating to the duties of their The pardoning respective offices, and he shall have power to grant re

prieves and pardons for offenses against the United States, except in cases of impeachment.' Constitution, Art. II,

power.

Sec. 2.

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anew.

placed by the Constitution in the hands of the President. Street 1. U. S., 24 Ct. Cls., 230; 25, ibid, 515, 113, U. S., 299. See, also, the chapter entitled THE EMPLOYMENT OF MILITARY FORCE.

Power to establish rules and regulations.—The power of the Executive to establish rules and regulations for the government of the Army is undoubted; power to establish implies, necessarily, the

power to modify or repeal, or to create U. S. v. Eliason, 16 Pet., 291, 301. The Army Regulations, when sanctioned by the President, has the force of law because it is done by him by the authority of law. · U. S. v. Freeman, 3 How., 556, 567.

May form military gorernments in occupied territory.--As an incident of the exercise of belligerent rights, the President may form military and civil governments in the territory of the enemy occupied by the armies of the United States. Cross v. Harrison, 16 How., 164, 190, 193. The Grapeshot, 19 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 1. Montgomery, 13 How., 198, 515. The Grapeshot, 9 Wall., 129, 132.

For authority to employ secret agents in time of war, see Totten r. V. 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 constitutional power of the President to command the Army and Navy, and of Congress “to make rules for the government and regulation of the land and naval forces” are distinct; the President can not, by military orders, evade the legislative regulations; Congress can not, by rules and regulations, impair the authority of the President as Commander in Chief. Swaim r. U. S., 28 Ct. Cls., 173. When a law is passed for the regulation of the Army, which does not impair the efficiency of the President as Commander in Chief, he becomes, as to that law, an executive officer, and is limited in the discharge of his duties by the statute. McBlair v. U. S., 19 ibid., 528.

· The pariloning 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 Constitution coniers 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. 1. Klein, 13 Wall., 128, 147; IV Opin. Att. Gen., 458; 19 ibid., 476.

Delivery and acceptance. -The pardon is a private though official act. It is official 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. u. 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

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3. The term of four years for which a President and Term of office. 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. In case of the removal of the President from office, Succession

Vice-President. or of his death, resignation, or inability to discharge the Constitution, powers and duties of the said office, the same shall devolve

of

Art. II, sec. 1.

erty has, by judicial process, become vested in other persens. Osborn 1: U. S., 91 1. S., 474; V Opin. Att. Gen., 532.

Pouer to mitigate and commute.—The President may, by an exercise of the pardoning 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. Š., 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. I Opin. Att. Gen., 433.

Conditionul 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 absolute 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 r. 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 1. U. S., 7 Ct. Cls., 501. One who claims the benefit of a pardon must be held to strict compliance with its conditions. Haym v. C.S., 7 Ct. Cls., 443; Scott 1. 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. VI Opin. Att. Gen., 20; 1 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 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 v. U. S., 10 Ct. Cls., 397, 406; U. S. v. Šix Lots of Ground, 1 Woods, 234; 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. V. S. v. Wilson, 7 Pet., 150, 161; Ex parte Reno, 66 Mo., 266. The recital of a specific, distinct offenee, 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 v. Foley, 15 Nev., 64.

Officers of the United States.-Any person occupying a position under the Federal Government, conferred upon him by a legally authorized election or appointment, whose duties consist in the exercise of important public powers and trusts, as a part of the regular administration of the Government, such duties being continuing and permanent, not occasional or temporary, and prescribed by the Government or by a

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on the Vice-President, and the Congress may by law pro-
vide for the case of removal, death, resignation, or inabil-
ity, both of the President and Vice-President, declaring
what officer shall then act as President, and such officer
shall act accordingly, until the disability be removed, or
a President shall be elected. Constitution, Art. 11, sec. 1,

par. 6.

Provision for 5. In case of removal, death, resignation, or inability of
Acting President
should vacuney both the President and Vice-President of the United
of President and States, the Secretary of State, or if there be none, or in
Jan. 19, 1896, s. case of his removal, death, resignation, or inability, then
1, v. 24, p. 1.

the Secretary of the Treasury, or if there be none, or in
case of his removal, death, resignation, or inability, then
the Secretary of War, or if there be none, or in case of
his removal, death, resignation, or inability, then the

Attorney-General, or if there be none, or in case of his superior officer, and whose compensation is paid out of the Treasury, is an officer of the United States. U. S, r. Hartwell, 6 Wallace, 385; U. S. 1'. Germaine, 99 U. S., 508; U. S. v. Maurice, 2 Brock., 103. Unless one in the service of the United States holds his office by virtue of an appointment made by one of the courts of justice or heads of departments authorized by law to make such appointment, he is not, strictly speaking, an officer of the United States. · U. S. 1. Mouat, 124 V. S., 303; U. S. . HỈendee, 124 U. S., 309; U. S. v. Smith, 124 U. S., 525. Noncommissioned officers are not officers in the sense in which the latter term is generally used. Babbitt v. U. S., 16 Ct. Cls., 202.

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. VI Opin. 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 oflice 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 appointment. These 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. U. S. v. Le Baron, 19 How., 73, 78; U. S. 2. Stewart, ibid., 79; Marbury 1. Madison, 1 Cranch, 137.

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 their delegated powers their acts do not bind the principal. U. s. r. Maxwell 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 1. 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. . Buchanan, 8 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 oflice, and may be cumulative upon his original dutie and although his compensation therefor be wholly inadequate. In such case he must look to the bounty of Congress for any additional reward. Andrews 1. 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 prudent 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 culpable. U.S. 4. Baldriilge, 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. ?. Arredondo, 6 Pet., 691; U. S. v. Clarke, 8 ibid., 436, 452; Percheman r. U. S., 7 ibid., 51; Delassus 1. U. S.; 9 ibid., 117, 134; Strother v. Lucas, 12 ibid., 410, 438; U. S. v.

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