ity and sovereignty which belongs to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the Government are brought into question. Our own Constitution and form of government must be our only guide."1"

The powers granted by the Constitution to the President are expressed in very general, or even vague terms, and as there have been few decisions by the Supreme Court on these grants and, as above stated, no precedents which can be referred to, the exact extent of the authority given to the Presidént, under some of the grants, is as yet not entirely settled. Certain Presidents have claimed and exercised more authority than have others.

The powers of the President may be divided into two classes, (1) those which are conferred upon him directly by the Constitution; and (2) those which are conferred upon him by act of Congress. In the execution of powers of the first class he is independent of Congress, or even of the courts. "By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience."20 Where the power is granted by Congress the President is subject to the control of Congress in exercising such power.

In general the duties of the President are executive rather than legislative. It is his duty to execute the laws passed by Congress rather than to legislate himself. The whole system of government created by the Constitution is one of division of powers and of checks and balances. Neither department should be allowed to usurp powers properly belonging to either of the others. The true rule to apply where disputes arise between the executive and the legislative departments of the Government seems to be this: If the power in question is executive or administrative in its nature, all points of doubt should be decided in favor of the President; if on the other hand the power betakes 20 Marbury v. Madison, 1 Cranch. 137.

Fleming v. Page, 9 Howard,

603, 618.

rather of legislative character, then all questions of doubt should be resolved in favor of Congress.

$179. Commander-in-Chief of the army and navy. "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." Although the President is made the commander-in-chief of the army and navy, he must, nevertheless, exercise the powers and duties of this office in accordance with the rules prescribed by Congress for the government and regulation of the land and naval forces. When Congress passes a law for the regulation of the army or navy, and such law is not in excess of their authority, the President becomes as to such law an executive officer, and is limited in the discharge of his duty by the statute.22 If the President in issuing orders as commander-in-chief exceeds the authority belonging to the office under the principles of international law, or the acts of Congress, his order is no defense to those acting under them.23

The power of the President as commander-in-chief is, however, very broad. He may direct the movement of forces ;24 or establish rules and regulations for the army and navy on points on which Congress shall not have legislated;25 or employ secret agents for the United States;26 or form temporary military governments in foreign territory occupied by the United States armies;27 or allow additional rations to an army post;28 or declare blockades;29 or establish provisional courts in territory occupied by armies of the United States,3° or permit partial intercourse with the enemy.31

The President has been vested by Congress with the power of calling out the militia,2 and his decision as to the propriety and necessity of such act is conclusive on the other branches of the Government.3: 33

The President cannot establish prize courts;34 and he cannot suspend the privileges of the writ of habeas corpus unless authorized to do so by Congress.35 Above all, the President cannot declare or begin war against either a foreign nation or against one of the States.36

37

The President is commander-in-chief of the army and navy at all times, but of the militia only when called into the actual service of the United States. His authority to appoint the officers of the army and navy is limited by the necessity for the confirmation of such appointments by the Senate.38 The President, however, may assign officers of the regular army to service with the militia when the latter are employed in the service of the United States.39

$180. The pardoning power.-"He may require the opinion, in writing, of the principal officer in each executive department, 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 except in cases of impeachment."40

The pardoning power, as to offenses against the United States government, is vested absolutely in the President by the Constitution, and such power cannot be regulated or restricted, either directly or indirectly, by Congress.11

The meaning of the word pardon here used is to be taken as

32 Martin v. Mott, 12 Wheaton, 19.

33 United States v. Cruikshank, 92 U. S. 542.

34 Johnson v. Montgomery, 13 Howard, 448.

35 McCall v. McDonnell, Deady, 233.

36 The Prize Cases, 2 Black, 665.

37 Johnson v. Sayre, 158 U. S. 115; 10 Op. Atty. Gen. 17.

38 McBlair v. United States, 19 Ct. Cl. 537.

392 Opinions Atty. Gen. 711. 40 United States Constitution, Art. II., Sec. II., Clause 1.

41 United States V. Klein, 13 Wallace, 128; Ex parte Garland, 4 Wallace, 310, 333.

that which the word had in the English law: "As this power had been exercised from time immemorial by the executive of that Nation whose language is our language, and to whose judicial institutions ours bears a close resemblance, we adopt their principles regarding the operation and effect of a pardon and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. 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."42

The pardoning power extends to all offenses except in cases of impeachment. The President may remit fines, penalties and forfeitures, including forfeitures in cases of prizes of war after the vessels have been condemned, but before the prize money has been deposited in the treasury; he cannot, however, remit fines imposed for contempt of court.45 Nor can he compel the restoration of property already vested in some private individual.

The effect of a full pardon is to blot out the offense; the party pardoned cannot be further punished for the pardoned offense or any other offense incident thereto; he is restored to the full rights of citizenship, and is not liable for any penalty due to the United States; and is entitled to the return of all confiscated property in the possession of the United States government." A pardon is not necessarily a full one. The President may annex to his offer of pardon any conditions which he may deem proper, but if these conditions are complied with the pardon takes full effect." The President can commute the punishment

48

49

for a crime, but he cannot substitute a punishment of a different character. He, however, may make the acceptance of a different penalty by the prisoner a condition to a remittance of the penalty inflicted.50

51

Pardons for an offense may be granted before conviction or even indictment. In early times in England a majority of pardons were of this character. Such pardons are now rare and in general are looked upon with disfavor.

The power to grant pardons includes the power to issue an amnesty. An amnesty is a pardon to a class of offenders, and is generally granted in advance of conviction.53 Congress also has the power to pass a general amnesty law, but cannot take away from the President the power of granting an amnesty.*

54

A pardon is an act of executive clemency and not in general a finding of innocence, the power of pardoning generally neither requiring nor authorizing the President to enter into an investigation of facts tending to prove the injustice of the decision.55 The acceptance of a pardon is a confession of guilt, or of the existence of a state of facts from which a judgment of guilt would follow.56

The delivery of a pardon and its acceptance are both necessary for its validity. The party to whom a pardon is tendered. may refuse it, and if he does he cannot be compelled to accept it. If a conditional pardon is accepted it is deemed to have been accepted voluntarily and not under duress.58 A pardon procured by fraud is void.59