enemy in the most effective way, and to do this may order an invasion of the enemy's country, and if possible establish the authority of the United States over it, but such policy would not enlarge the boundaries of the United States nor extend our institutions outside the jurisdiction previously conferred upon them by Congress."

The President as Commander-in-Chief has power to form a temporary government for a conquered country, and to impose duties on imports and tonnage for the support of the government and to aid in sustaining the burdens of the war.

10

So as such Commander he has power to organize a provisional court in territory taken from the enemy during a foreign or a civil war. It was within his power as Commander-in-Chief, to order the collection of duties on goods shipped from a domestic port to Porto Rico from the time of taking possession of that island until the establishment of business relations between the belligerent countries.11 The President, under his power as Commander-in-Chief, may employ secret agents to obtain information from the enemy concerning their position, resources and general condition.12

President Roosevelt, in the exercise of this power, dismissed three companies of United States troops for supposed unsoldierly conduct. The order of dismissal provided "that they will be discharged without honor from the Army by their respective commanding officers and forever debarred from re-enlisting in the Army or Navy of the United States as well as from employment in any civil capacity under the government."'13 The power of the President to make an order preventing soldiers discharged without honor from being employed in any civil capacity under the government was challenged as beyond his constitutional authority, and he thereupon revoked that part of the order and frankly admitted that it was beyond

9 Fleming v. Page, 9 Howard, 603-615; Cross v. Harrison, 16 Howard, 190; Leitensdorfer v. Webb, 20 Howard, 176; The Grape Shot, 9 Wall., 129.

10 Grapeshot, 9 Wall., 133; Mechanics' Bank v. Union Bank, 22 Wall., 276.

11 Dooley v. United States, 182 U. S., 222.

12 Totten v. United States, 92 U. S., 106. 13 Special Order No. 266.

his authority to make. Whether he had the power to prevent the soldiers from re-enlisting without their guilt being first determined according to law is unsettled, and is questionable.

When William H. Seward was Secretary of State he sent a note to Lord Lyons in 1861 in which he set forth the power of the President as Commander-in-Chief, as follows:

"It seems necessary to state that Congress is by the Constitution invested with no executive power or responsibility whatever, but on the contrary the President of the United States is, by the Constitution and laws, invested with the whole executive power of the government, and charged with the supreme direction of all ministerial agents as well as of the whole land and naval forces of the United States, and that invested with these ample powers, he is charged by the Constitution and laws with the absolute duty of suppressing insurrection, as well as of preventing and repelling invasion, and that for these purposes he constitutionally exercises the right of suspending the writ of habeas corpus whenever and wheresoever and in whatsoever extent the public safety, endangered by treason or invasion in arms, in his judgment requires.

"If it be said that these acts of the President in time of war are unconstitutional, the answer is, that as Commander-in-Chief of the Army and Navy the President has the constitutional power to employ the means recognized by the laws of war as necessary to conquer the

enemy.

"Congress can pass no law which can deprive the President of the power conferred in creating him Commanderin-Chief.'

9714

There are, however, certain limitations upon the power of the President as Commander-in-Chief. He has no authority to establish a court during a war in a conquered country and empower it to pass upon the rights of the government or individuals in prize cases, nor to administer the laws common among nations, and the judgments of such courts would be a nullity.15

14 Woodburn's American Republic, 181; 14 Fed. Cases, No. 8006, p. 976.

15 In the Civil War President Lincoln issued the following order establishing a "Provisional Court" in Louisiana:

The President has no authority under his power as Commander-in-Chief to detain for trial before a courtmartial, or military tribunal, or to restrain for an unreasonable period private citizens, while the civil courts are accessible, except in case of insurrection, or actual war, when he can exercise such power and delegate it to his subordinate officers.

No President, under the authority conferred upon him

"Executive Mansion, Washington, October 20th, 1862. "The insurrection which has for some time prevailed in several of the States of this Union, including Louisiana, having temporarily subverted and swept away the civil institutions of that State, including the judiciary and judicial authorities of the Union, so that it has become necessary to hold the State in military occupation, and it being indispensably necessary that there should be some judicial tribunal existing there capable of administering justice, I have, therefore, thought it proper to appoint, and I do hereby constitute a provisional court, which shall be a court of record for the State of Louisiana, and I do hereby appoint Charles A. Peabody, of New York, to be a provisional judge, to hold said court, with authority to hear, try and determine all causes, civil and criminal, including causes in law, equity, revenue and admiralty, and particularly all such powers and jurisdiction as belong to the district and circuit courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States in Louisiana; his judgments to be final and conclusive. And I do hereby authorize and empower the said judge to make and establish such rules and regulations as may be necessary for the exercise of his jurisdiction, and to appoint a prosecuting attorney, marshal and clerk of the said court, who shall perform the functions of attorney, marshal and clerk, according to such proceedings and practice as before mentioned and such rules and regulations as may be made and established by said judge. These appointments are to continue during the pleasure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoration of the civil authority in that city and the State of Louisiana. These officers shall be paid out of the contingent fund of the War Department, compensations as follows: The judge at the rate of $3500 per annum; the prosecuting attorney, including the fees, at the rate of $3000 per annum; and the clerk, including the fees, at the rate of $2500 per annum; such compensation to be certified by the Secretary of War. A copy of this order, certified by the Secretary of War and delivered to such judge, shall be deemed and held to be a sufficient commission.

"Let the seal of the United States be hereunto affixed.

"By the President:

(L. S.)

"William H. Seward,

"ABRAHAM LINCOLN.

"Secretary of State."-(22 Wallace, 279).

by this clause, has ever assumed to take the active command of the military and naval forces of the government in time of war, and while it is probable that he would have that power, it is by no means certain. There are other clauses of the Constitution which impose duties upon the President and these become very onerous and numerous and important, especially in time of war. He is required to nominate and, with the advice and consent of the Senate, appoint ambassadors and other public ministers and consuls, judges of the Supreme Court and all other officers of the United States, whose appointments are not otherwise provided for. The Constitution also makes it his express duty to receive ambassadors and other public ministers, and "he shall take care," says the Constitution, "that the laws be faithfully executed, and shall commission all the officers of the United States." The question arises, how would the President be able to execute these duties, solemnly imposed upon him by the Constitution, should he assume the active command of the Army and Navy? The command of the active forces, during war, would necessarily require him to be on the march, in the camp, and on the battlefield or on the high seas, and consequently cause his absence from the seat of government for a long period of time. He might be compelled to establish his military headquarters far from the seat of government and of national legislation. If he should undertake to command the military and naval forces of the government in time of war, he would be exercising a power which would necessarily prevent him from executing important duties required of him by the Constitution.

How he could be restrained from the exercise of the command, if he should insist upon exercising it, would be difficult to determine, and it might be that he could not be prevented, but such a course would certainly impair his usefulness and effectiveness as the head of the government in discharging many other duties directly imposed upon him. It was probably the fear that such a contingency might arise, that induced Mr. Paterson, as we have already seen, to insert in his plan of a constitution, that the "Executive should, on no оссаsion, take command of any troops or conduct per

sonally any military enterprise, as general or in any other capacity."

The militia of the several States, when called into the actual Service of the United States.

The report of the Committee of Detail made the President the absolute commander of the militia of the States, the same as it did of the Army and Navy.

Mr. Sherman moved to amend the report by adding, "when called into the service of the United States," and it was carried by six States to three.17

The militia consists of every able-bodied male citizen of the respective States, Territories and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age.

16 Journal, 165.

It was doubtless the same feeling which influenced the New York Convention to suggest as a constitutional amendment, "That the President of the United States should never command the army, militia, or navy of the United States, in person, without the consent of the Congress." Elliot, vol. 2, 408.

"The power of the President as Commander-in-Chief of the Army and Navy has in practice never been exercised by the President's taking immediate command of the Army or the Navy during the existence of actual hostilities; so that, in that sense, no President has ever been Commander-in-Chief when the Army immediately confronted an enemy. Such authority as the President has exercised under this constitutional provision has been almost exclusively through the Secretary of War and the Secretary of the Navy, offices created among others by an act of the first session of the Congress, which distributed the exercise of the executive functions among several departments, at the head of each of which was placed a minister, called usually a 'Secretary.' And so strong and prominent to the public eye has been the control of these secretaries in the operations of the Army and Navy, in the few wars of an important character which we have had during the existence of the government, that the influence of the President in the actual movements of the Army and Navy has been hardly perceptible. Whether in case a war should occur during a period when the incumbent of the executive office is a man who has had experience in the command of armies, and with a good military reputation, it would be judicious for him to place himself at the head of the army, or to conduct its campaigns, or to be present and directing in battle, or whether public sentiment would tolerate such a course of action, is extremely doubtful."-Miller on the Constitution, 162.

17 Journal, 613.