Section 2.-POWERS AND DUTIES OF PRESIDENT. Clause 1.-COMMANDER IN CHIEF-PARDONS. 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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, 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. Commander in Chief In General As Commander in Chief the President is authorized to direct the movements of the naval and military forces placed under his command, and to employ them in a manner which he may deem most effectual. By virtue of his position he has undoubted power to establish rules and regulations for the government of the Army and Navy, or may modify or repeal or create them anew, and such rules and regulations can not be questioned on the ground that they are unwise. Army and Navy regulations made pursuant to the authority conferred upon the President have the force of law. When promulgated through the Secretary of War they must be received as the acts of the President, and as such are binding on all within the sphere of his authority. Fleming v. Page, 9 How. 603. See also Kurtz v. Moffitt, 115 U. S. 503. The power of the President as Commander in Chief must be exercised in accordance with the laws and usages of nations, and in the manner prescribed by Congress; otherwise his orders will afford no protection to an officer acting under them. An instruction to an officer can not justify an act which without it would have been a trespass. He is authorized by law, previous to a declaration of war by Congress, to meet insurrection or invasion by military force. He may, jure belli, declare a Sec. 2.-Powers and Duties of President Cl. 1.-Commander in Chief blockade of hostile ports in a civil war as well as in a foreign war, or may employ secret agents to enter the enemy's lines to obtain information regarding the latter's strength, resources, and movements, and direct payment therefor out of the contingent fund. Otis v. Bacon, 7 Cranch 589. Little v. Barreme, 2 Cranch 170. Prize Cases, 2 Black 668. Totten v. U. S., 92 U. S. 107. See also Tracy v. Swartout, 10 Pet. 80. Matthews v. McStea, 91 U. S. 12. The President can not establish a prize court or confer power to condemn prizes upon any inferior officer, civil or military. In case of insurrection he may accord to the enemy the character of belligerents. Jecker v. Montgomery, 13 How. 515. Power to Convene General Courts-Martial It is within the power of the President of the United States, as Commander in Chief, to validly convene a general courtmartial, even where the commander of the accused officer to be tried is not the accuser. Swaim v. U. S., 165 U. S. 558. Power to Repel Invasion and Suppress Insurrection The President does not initiate war, but by the acts of Congress of February 28, 1795, and March 3, 1807, he was authorized to call out the military and naval forces of the United States in case of invasion by foreign nations and to suppress insurrection against the government of a State or of the United States. Prize Cases, 2 Black, 668, which also see as to power of the President to accord belligerent rights to insurgents. When Commander in Chief of Militia The President is made Commander in Chief of the Army and Navy of the United States at all times, and Commander in Chief of the Militia only when called into the actual service of the United States. Johnson v. Sayre, 158 U. S. 115. Departments The word "departments" clearly means the same thing as in the clause giving Congress the power to vest the appointment of inferior officers in the heads of departments. The principal officer" in this clause is the equivalent to the "head of the department" in the other. 66 U. S. v. Germaine, 99 U. S. 511. Sec. 2.-Powers and Duties of President Conquered Territory Cl. 1.-Commander in Chief In his capacity as Commander in Chief the President may order the invasion of the enemy's territory, but such conquests can not enlarge the boundaries of the Union. According to the usages of nations, if a nation be not entirely subdued by another, the holding of conquered territory is to be deemed a mere military occupation until its status is determined by the treaty of peace, and the military may hold and occupy conquered territory without incorporation so long as it may seem appropriate to Congress. Where territory is ceded by a treaty of peace the occupation is confirmed, but the territory thus acquired becomes appurtenant to and not a part of the United States; actual incorporation as a part of the Nation can follow only after the action of Congress. Fleming v. Page, 9 How. 615. American Ins. Co. v. Canter, 1 Pet. 542. Downes v. Bidwell, 182 U. S. 342. New Orleans v. Steamship Co., 20 Wall. 398. U. S. v. Huckabee, 16 Wall. 434. It is the duty of the President so long as war continues to provide for the security of persons and property in territory taken from the enemy's control, and to this end he may institute a temporary military government, which will continue to be a valid government until the ratification of a treaty of peace and the provision by Congress for the formation of another government. The establishment of provisional courts is a part of this power, as also is the collection of duties in the conquered territory. The Grapeshot, 9 Wall. 132. Texas v. White, 7 Wall. 730. Cross v. Harrison, 16 How. 191. Burke v. Miltenberger, 19 Wall. 525. Downes v. Bidwell, 182 U. S. 346. See also Mechanics', etc., Bank v. Union Bank, 22 Wall. 296. Lewis v. Cocks, 23 Wall. 469. U. S. v. Castillero, 2 Black 358. Dooley v. U. S., 182 U. S. 234. Leitensdorfer v. Webb, 20 How. 176. The creation of the provisional court for Porto Rico between April 11, 1899, when ratifications of the treaty by which it was ceded were exchanged, and May 1, 1900, when act of April 12, 1900, establishing a civil government, took effect, was within the scope of the military power, acting by authority of the President as commander in chief, though peace then prevailed, and courts established under Spain were open. Santiago v. Nogueras, 214 U. S. 260. Sec. 2.-Powers and Duties of President Martial Law Cl. 1.-Commander in Chief This is the law of military necessity in the actual presence of war, and finds its justification only where, from actual invasion or civil war, the courts are closed and it is impossible to administer justice according to law. U. S. v. Diekelman, 92 U. S. 526. Ex parte Milligan, 4 Wall. 127. Coleman v. Tennessee, 97 U. S. 515. Pardons for Offenses Against the United States Definition and Nature A pardon is an act of grace by which an offender is released from the consequences of his offense. It releases the offender and restores to him all civil rights. But it does not make amends for the past. It affords no relief for what has been suffered by his imprisonment, forced labor, or otherwise; nor does it give compensation for what has been done or suffered, nor impose upon the Government any obligation to give it. Knote v. U. S., 95 U. S. 153. U. S. v. Wilson, 7 Pet. 159. But it includes the power to grant relief from fines, penalties, and forfeitures which follow from the commission of the offense. Osborn v. U. S., 91 U. S. 474. The constitutional prerogative of the President to grant reprieves and pardons includes the power to commute punishments. Ex parte Harlan, 180 Fed. 119; decree affirmed in Harlan v. Mc- An indefinite suspension of sentence is beyond the power of the court. U. S. v. Wilson, 46 Fed. 749. Power of Congress to Control The power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. Ex parte Garland, 4 Wall. 333, in which the act of Congress of An act of Congress allowed those persons whose property had been taken as captured and abandoned and sold, and the proceeds thereof turned into the Treasury, to claim the money and recover it by proceedings in the Court of Claims, on proof that claimants had been loyal citizens during the Civil War. The Supreme Court had decided that a pardon made proof of loyalty unnecessary. To offset the effect of this decision Congress passed an act that proof of loyalty was necessary to recovery "notwith Sec. 2.-Powers and Duties of President Cl. 1.-Pardons standing any Executive proclamation, pardon, amnesty, or other act of condonation or oblivion." But the Supreme Court held this act unconstitutional, Justices Miller and Bradley dissenting. In the opinion Chief Justice Chase said: The legislature can not change the effect of such a pardon any more than the Executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the Executive authority and directs the court to be instrumental to that end. U. S. v. Klein, 13 Wall. 148. The power of pardon, exercised at any time, either before legal proceedings are taken, or during their pendency, or after conviction and judgment, is not subject to legislative control. Congress can neither limit the effect of a pardon nor its exercise in classes of offenders. The benign prerogative of mercy reposed in the President can not be fettered by any legislative restrictions. It has been held: A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. Ex parte Garland, 4 Wall. 380. See also In re Spencer, 5 Sawyer, 195, in which Deady, D. J., comments on the effect of the above-quoted language. Carlesi v. New York, 233 U. S. 51, involving the punishment of a pardoned person as a second offender. Amnesty Granted by Congress to Witnesses Although the pardoning power is vested in the Executive, yet it is competent for Congress to provide that a witness who is required to give testimony tending to incriminate himself shall never be prosecuted for the offense to which the testimony relates. Brown v. Walker, 161 U. S. 591. General Pardon and Amnesty Akin to his power to reprieve and pardon, the President can also issue proclamations of amnesty, although that term does not appear in the Constitution. Amnesty is an act of sovereign power granting oblivion or a general pardon for a past offense. It is rarely, if ever, exercised in favor of single individuals, but is usually extended in behalf of certain classes of persons who are subject to trial, but who have not been convicted. Such pardon and amnesty made by a public proclamation of the President has the force of public law, of which all courts and officers must take notice, whether especially called to their atten |