Military Laws of the United States (Army)

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

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 executed, but he is not obliged to execute them himself. IV Opin. Att. Gen., 515; Williams r. C. 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 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 . Madison, 1 Cr., 137, 166. The President can not be restrained by injunetion 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 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 v. 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 Departments upon any subject relating to the duties of their The pardoning respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Constitution, Art. II,

power.

sec. 2.

placed by the Constitution in the hands of the President. Street r. 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; * * * The power to establish implies, necessarily, the power to modify or repeal, or to create anew. 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. c. Freeman, 3 How., 556, 567.

May form military governments 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 r. 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 . 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 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 e. 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 . U. S., 19 ibid., 528.

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 Constitution 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. v. 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. e. 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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