opinion, in writing, of the principal officer in each of the Executive Departments upon any subject relating to the duties of their respectice 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, sec. 2.

3. Term of office.-The term of four years for which a President and Vice-President shall be elected shall in all cases commence on the 4th day of March next succeeding the day on which the votes of the electors have been given. Sec. 152, R. S.

4. Succession of Vice President.-In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall

hands of the President. (Street v. U. S., 24 Ct. Cls., 230; 25, id., 515, 113, U. S., 299. See also, the chapter entitled The Employment of Military Force.)

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 v. 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 v. 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 v. 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 v. U. S., 19 id., 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 id., 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.

devolve on the Vice-President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. Constitution, Art. II, sec. 1, par. 5.

5. Succession of Cabinet Officers.-In case of removal, death, resignation, or inability of both the President and Vice-President of the United States, the Secretary of State, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Treasury, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of War, or if

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. r. 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 property has, by judicial process, become vested in other persons. (Osborn v. U. S., 91 U. S., 474; V Opin. Att. Gen., 532.)

Power to mitigate and commute.-The President may, by an exercise of the pardoning power, mitigate or commute a punishment imposed by any court of the United States. (Ex parte Wells, 18 How., 307; In re Ross, 140 U. S., 453.) In mitigating the sentence of a naval court-martial the President may substitute a suspension for a term of years without pay for an absolute dismissal from the service, as suspension is but an inferior degree of the same punishment. (I Opin. Att. Gen., 433.)

Conditional pardons.-The language of the Constitution is such that the power of the President to pardon conditionally is not one of inference, but is conferred in terms, the language being "to grant reprieves and pardons," which includes absolute as well as conditional pardons. Under this power the President can grant a conditional pardon to a person under sentence of death, offering to commute that punishment into an imprisonment for life. If this is accepted by the convict he has no right to contend that the pardon is absolute and the condition of it void. (Ex parte Wells, 18 How., 307; Osborn e. U. S.. 91 U. S., 474; U. S. e. Wilson, 7 Pet., 150.) When a pardon is granted with conditions annexed the conditions must be performed before the pardon is of any effect. (Waring r. U. S., 7 Ct, Cls, 501.) One who claims the benefit of a pardon must be held to strict compliance with its conditions. (Haym . U. S. 7 Ct. Cls., 443; Scott r. U. S., S id., 457.) The condition annexed to a pardon must not be impossible, unusual, or illegal; but it may, with the consent of the prisoner, be any punishment recognized by the statutes or by the common law as enforced by the State. (Lee r. Murphy, 22 Grat. (Va.), 789.3)

Time of exercise.- The President of the United States has the conditional power to pardon as well before trial and conviction as afterwards; but it is a power only to be exercised with reserve and for exceptional considerations. (VI Opin. Att. Gen., 20; 1 id., 311; 2 id., 275; 5 id., 687; Ex parte Garland, 4 Wall, 333; Dominiek r. Davidson, 44 Ga, 457; 5 Blair r. Com., 25 Grat. (Va), 80,) It is competent for the Président to grant a pardon after the expiration of the term of sentence, thereby relieving from consequential disabilities. (Stetler's case, 1 Phil, IX. 38; Com. e. Bush, 2 Duv, (Ky.), 264.) The loss of rights of citizenship does not attach to those deserting the milltary or naval service in time of peace, after August 22, 1912. (37 Stat. 356.) For this net see page 1652.

Limitation upon the pardoning power. The Constitution gives to Congress the power to dispose of the public property and to the President only the power to pardon crimes; and the President, having no title to forfeited property, can not restore it, though he may pardon the offense which caused the forfeiture. Property confiscated by Judgment to the United States is beyond

there be none, or in case of his removal, death, resignation, or inability, then the Attorney-General, or if there be none, or in case of his removal, death, resignation, or inability, then the PostmasterGeneral, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Navy, or if there be none, or in case of his removal, death, resignation, or inability, then the Secretary of the Interior, shall act as President until the disability of the President or Vice-President is removed or a President shall be elected: Provided, That whenever the powers and duties of the office of President of the United States shall devolve upon any of the persons named herein, if Congress be not then in session, or if it would not meet in accordance with law within twenty days the reach of executive clemency and is absolutely national property. The President has no right to dispose of that which belongs to the Nation. (Knote v. U. S., 10 Ct. Cls., 397, 406; 95 U. S., 149-157; U. S. v. Six Lots of Ground, 1 Woods, 234; Osborn v. U. S., 91 U. S., 474, 477.) Pleading. A pardon is a deed, to the validity of which delivery is essential. and delivery is not complete without acceptance. The pardon may possibly apply to a different person or to a different crime. It may be absolute or conditional. It may be controverted by the prosecutor and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought before the court by plea, motion, or otherwise. (U. S. v. Wilson, 7 Pet., 150, 161; Ex parte Reno, 66 Mo., 266.) The recital of a specific, distinct offense, in a pardon by the President, limits its operation to that offense, and such pardon does not embrace any other offense for which separate penalties and punishments are provided. (Ex parte Weimer, 8 Biss., C. Ct., 321.) The conviction having been of two offenses, and the pardon reciting only one, the pardon operates upon the offense recited. (State v. Foley, 15 Nev., 64.)

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Appointments to office.-Appointments provided for by act of Congress, merely in general terms, must be made by and with the advice and consent of the Senate. (VI Opin. Att. Gen., 1.) When a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete. Congress may provide that certain acts shall be done by the appointee before he shall enter on the possession of the office under the appointment. These acts then become conditions precedent to the complete investiture of the office; but they are to be performed by the appointee, not by the Executive; all that the Executive can do to invest the person with his office has been completed when the commission has been signed and sealed, and when the person has performed the required condition, his title to enter on the possession of the office is also complete. (U. S. v. Le Baron, 19 How., 73, 78; U. S. v. Stewart, id. 79; Marbury v. Madison, 1 Cranch, 137.)

Powers of officers.-All the officers of the Government, from the highest to the lowest, are but agents with delegated powers, and if they act beyond the scope of their delegated powers their acts do not bind the principal. (U. S. v. Maxwell Grant, 21 Fed. Rep., 19.) An officer can only bind the Government by acts which come within a just exercise of his official power. (Hunter v. U. S., 5 Pet., 173, 178; The Floyd Acceptances, 7 Wall., 666; State v. Hastings, 12 Wis., 596.) It is a question of law for the court whether an act is a part of the official duty of a public officer. (U. S. v. Buchanan, 8 How., 83.) Every public officer is required to perform all duties which are strictly official, although they may be required by laws passed after he comes into office, and may be cumulative upon his original duties, and although his compensation therefor be wholly inadequate. In such case he must look to the bounty of Congress for any additional reward. (Andrews v. U. S., 2 Story, 202.) An officer is bound to use that care and diligence in the discharge of his duties that a conscientious and prudent man, acting under a just sense of his obligations, would exercise under the circumstances of a particular case, and if he fails and neglects to do so he is culpable. (U. S. v. Baldridge, 11 Fed. Rep., 552.)

thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days' notice of the time of meeting. Sec. 1, Act of Jan. 19, 1886 (24 Stat. 1).

6. Same-Limitations. The preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named, and such as are eligible to the office of President under the Constitution, and not under impeachment by the House of Representatives of the United States at the time the powers and duties of the office shall devolve upon them respectively. Sec. 2, id.

Presumptions as to official acts.-The acts of an officer to whom a public duty is assigned, within the sphere of that duty, are prima facie within his power. (U. S. v. Arredondo, 6 Pet., 691; U. S. v. Clarke, 8 id., 436, 452; Perche. man v. U. S., 7 id., 51; Delassus r. U. S., 9 id., 117, 134; Strother r. Lucas, 12 id., 410, 438; U. S. v. Peralta, 19 How., 343, 347.) When a particular functionary is clothed with the duty of deciding a certain question of fact, his decision, in the absence of fraud, is conclusive. (Logan r. The County, 16 Wall., 6.) He who alleges that an officer intrusted with important duty has violated his instructions must show it. The courts ought to require very full proof that an officer has transcended his powers before they so determine. (U. S. v. Peralta, 19 How., 343, 347; Delassus v. U. S., 9 Pet., 117, 134.) When a public officer is to do any act on proof of certain facts, of the competency and sufficiency of which he is to judge, it is to be presumed, from the doing of the act, that the proof was regularly and satisfactorily made, and its sufficiency is not subject to reexamination. (Phil. and Tren. R. R. Co. v. Stimpson, 14 Pet., 448.)

Tenure. The power to appoint includes the power to remove, when the Constitution has not otherwise provided, and when the laws of Congress have not fixed a tenure of office. (Ex parte Hennen, 13 Pet., 230; Parsons v. U. S., 167 U. S., 324; U. S. v. Avery, Deady, 204.) When Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interests. (U. S. v. Perkins, 116 U. S., 483.)

Resignation. That a public office may be vacated by resignation is established by long and familiar practice, and is recognized by express provision of law. Nor can there be any doubt that a resignation may be effected by the concurrence of the officer and the appointing power; its essential elements are an intent to resign on the one side and an acceptance on the other. It may be either in writing or by parol, expressly or by implication. To perfect a resig nation nothing more is necessary than that the proper authority manifest in some way its acceptance of the offer to resign. It then becomes effectual, and operates to relieve the incumbent either immediately or on the day specially fixed according to its terms. An offer to resign is revocable prior to acceptance; after acceptance and before it has taken effect it may be modified, or withdrawn by consent of both parties, but this control extends no further. When a resignation once takes effect the official relations of the incumbent are ipso facto dissolved; he has no longer any right to, or hold upon, the oflice. (XIV Opin. Att. Gen., 259.)

Removal.-In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. (In re Hennen, 13 Pet., 230, 259.) It was the purpose of Congress, in the repeal of the tenure of office sections of the Revised Statutes (secs. 1767-1775, Rev. Stat., repealed by act of Mar. 3, 1887, 24 Stat., 500), to again concede to the President the power of removal, if taken from him by the original tenure-of-office act, and, by reason of the repeal, to thereby enable him to remove an officer when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office. (Parsons v. U. S., 167 U. S., 324. See, also, ninety-ninth article of war, secs. 1230, 1228. Rev. Stat., and articles 36 and 37 of articles for the government of the Navy; VI Opin. Att. Gen., 4; XII, id., 421; XV, id., 421; IV Cmp. Dec., 58, 466, 601, and Blake v. U. S., 103 U. S., 227.)

7. Treaties-Appointment of officers. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and censent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of Departments. Constitution, Art. II, sec. 2, par. 2.

8. Recess appointments.-The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. Id, par. 3.

9. Commissions.-The President is authorized to make out and deliver, after the adjournment of the Senate, commissions for all officers whose appointments have been advised and consented to by the Senate. Sec. 1773, R. S.

10. Notification of appointments.-Whenever the President, without the advice and consent of the Senate, designates, authorizes, or employs any person to perform the duties of any office, he shall forthwith notify the Secretary of the Treasury thereof, and the Secretary of the Treasury shall thereupon communicate such notice to all the proper accounting and disbursing officers of his Department. Sec. 1774, R. S.

11. Notification of rejections and confirmations.-The Secretary of the Senate shall, at the close of each session thereof, deliver to the Secretary of the Treasury, and to each of the Assistant Secretaries

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Public office.-An office is a public station, or employment, conferred by the appointment of Government. The term embraces the ideas of tenure, emolument, and duties. The duties are continuing and permanent, not occasional and transitory, and are defined by rules prescribed by Govern ment and not by contract. A Government office is different from a Government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other. (U. S. v. Hartwell, 6 Wall., 385, 394; U. S. v. Maurice, 2 Brockenbrough, 103.) A public officer is the incumbent of an office "who exercises continuously, and as a part of the regular and permanent administration of the Government, its public powers, trusts, and duties." (Sheboygan Co. v. Parker, 3 Wall., 93, 96.) Unless a person in the service of the Government holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States. (U. S. v. Mouat, 124 U. S., 303, 307; U. S. v. Germaine, 99 U. S., 508, 510; U S. v. Hendee, 124 U. S., 309; U. S. v. Smith, 124 U. S., 525.) Noncommissioned officers are not officers in the sense in which that term is generally used. (Babbitt v. U. S., 16 Ct. Cls., 202.)

* For statutory requirements in respect to commissions to military officers see chapter entitled Commissioned officers.