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THE EXECUTIVE-COMMANDER IN CHIEF-OPINION IN WRIT

ING_REPRIEVES AND 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 Offences against the United States, except in cases of Impeachment.

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the United States," was the language of Mr. Pinckney's plan of a Constitution.

Mr. Paterson's plan read: "That the Executive ought to direct all military operations; provided, that none of the persons composing the Federal Executive should, on any occasion, take command of any troops, so as personally to conduct any military enterprise, as general, or in any other capacity. The Committee of Detail reported, “The President shall 1 Journal, 70. 2 Journal, 165.

be Commander in Chief of the Army and Navy of the United States and of the militia of the several States."

The Power of the President as Commander in Chief. It is somewhat singular that the Constitution of a Republic whose President-it could have reasonably been presumed—would be selected from the peaceful vocations of life—without military or naval training-should make its President Commander-in-Chief of the military and naval forces of the country. But there was no opposition to this provision in the Convention which framed the Constitution. This action of the Convention was probably due to some particular cause, and none seems more reasonable than the fact that during the Revolution Washington experienced great trouble and embarrassment resulting from the failure of Congress to support him with firmness and dispatch. There was a want of directness in the management of affairs during that period which was attributable to the absence of centralized authority to command. The members of the Convention knew this and probably thought they could prevent its recurrence by making the President Commander-in-Chief of the Army and Navy. Doubtless, also, the Convention was influenced by precedents, of which there were many, running back for a long period.

The Plan of Union formed by William Penn in 1696, made the King's commissioner to be general or chiefcommander of the several quotas upon service against the common enemy.

In 1732, the Governor and Commander-in-Chief of South Carolina had the chief command of the militia of that province. When the State constitutions were adopted more than a century afterwards, several of them made the Governor commander-in-chief of the militia and mili. tary forces of the States.

The Constitution of Georgia, adopted in 1777, made the Governor captain-general and commander-in-chief over all the militia and other military and naval forces of the State, and the Constitution of New York, adopted the same year, contained a clause that "the Governor shall, by virtue of his office, be general and commander-in-chief of all the militia and admiral of the navy of this State." The Constitutions of New York and Georgia were the first that expressly made a Governor commander of the naval as well as of the military forces of a State.

3 Journal, 457.

There is also a clause in the Ordinance for the government of the Northwest Territory, making the Governor commander-in-chief of the militia and authorizing him to appoint and commission all officers below the rank of general officers.

The power of the President under this clause is commonly called the “War Power” of the President. It is an immense power to exercise and might be used in a most dangerous manner by an unwise Executive, as there

+ Fisher's Evolution of the Constitution, 158.

In the United States Senate, Senator Bacon gave the following reasons why the Constitution makes the President Commander-in-Chief.

"The President is an Executive. Upon him devolves the execution of the law and the enforcement of the law; and the enforcement of the law must necessarily be, in its last analysis, through the military arm. Of course the President can not be the Supreme Executive unless he has the supreme command of that through which the execution of the law must be enforced. The civil authority is supreme, and the military authority is subject to the order of the civil authority and executes its orders. Here is an order from the court; the posse comitatus is summoned for the purpose of executing the mandate of the court, but is unable to do it by reason of superior force opposed to it, and finally it must appeal to the Executive to use the military arm to carry out the order of the court. That is what I mean by saying that, in the last analysis, the military arm is that by which the law is executed or must be executed.” Congressional Record, February 17, 1909.

It was under his authority as Commander-in-Chief of the Army and Navy, that President Lincoln issued his Emancipation Proclamation which abolished slavery in the United States. The proclamation read, “By virtue of the power vested in me as Commanderin-Chief of the Army and Navy of the United States in times of actual armed rebellion against the authority and government of the United States."

Ex-President John Quincy Adams claimed the existence of this power in the President as Commander-in-Chief, more than a quarter of a century before Mr. Lincoln's proclamation. In a speech delivered in 1836 he said, “From the instant your slave-holding states become the theatre of war, civil, servile or foreign, from that instant the war powers of the Constitution extend to interference with the institution of slavery in every way in which it can be interfered with.” In 1842 he again said, “Whether the war be servile, civil or foreign I lay this down as the law of nations. I say that the military authority takes for the time the place of all municipal institutions, slavery among the rest. Under that state of things, so far from its being true that the states where slavery exists have the exclusive management of the does not seem to be any limitation prescribed by the Constitution to the exercise of the power by the President in the field of military operations.

By this clause he is made commander of the military and naval forces of the United States, for the whole time that he is President. No other department of the government, and no other officer of the government can exercise this power or assume to command either the Army or the Navy, unless designated by the President to do so. Congress can legislate relative to the number of the Army or the Navy, the compensation of the officers and men, and the term of their service, as well as many other matters, but the command of the Army and Navy is vested in the President, and Congress can neither command them or take that power from the President.

The power is vested in the President to dispose of or arrange the component parts of the Army and Navy at his pleasure. In practice he does this through the military and naval departments of the government, but their action is his action. While Congress can make rules for the Army and Navy, it can not interfere with the President's power as commander of such forces. The line between the exercise of his power as commander and that of Congress is plain, and neither can rightfully or legally invade the other.

This line of demarkation was well defined by Chief Justice Chase and the dissenting justices in the Milligan case, where it was said:

“Congress has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander-in-Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our

subject, not only the President of the United States, but the Commander of the Army has power to order the universal emancipation of the slaves.” Morse's Life of John Quincy Adams, 261-264.

institutions. The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. Congress can not direct the conduct of campaigns; nor can the President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and punishment of offenses, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least insures acts of indemnity from the justice of the legisla

ture.!!5

"The Army Regulations derive their force from the power of the President as Commander-in-Chief, and are binding upon all within the sphere of his legal and constitutional authority.'16

How far such orders and regulations in time of peace, and without the consent of Congress, would confer authority upon civil authorities, does not seem to be settled by judicial construction. They do not authorize civilians to arrest or detain deserters from the Army, and neither a civilian nor a police officer can arrest a deserter without authority to do so. The authority of the President over the Army and Navy to command and control is only subject to the restrictions of Congress “to make rules for the government and regulation of the land and naval forces," and that the appointment “of officers should be by and with the advice and consent of the Senate.' The power of Congress, and that of the President over the Army and Navy are separate and distinct, neither can impair or invade the authority of the other. The powers of the President under this clause are only those which may be called “military.” He can direct the movements of the Army and Navy so as to injure the

5 Ex parte Milligan, 4 Wallace, 2, 139, 140. & Kurtz v. Moffit, 115 U. S., 503. 7 Street v. United States, 24 Court of Claims, 230, 247. 8 Swain v. United States, 28 Court of Claims, 173, 221.

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