from holding the office of commercial agent of a foreign government. (6 Op. Atty. Gen. 409, Apr. 3, 1854.) "A minister plenipotentiary from this Government to a foreign power certainly holds an office of profit and trust under the United States. A similar commission from a third power gives him an office under such power, and this the Constitution forbids him to accept." (13 Op. Atty. Gen. 537, 538, Nov. 23, 1871.) Unquestionably, a minister of the United States abroad is not prohibited by the Constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer of that power. (13 Op. Atty. Gen 537, 538, Nov. 23, 1871.) ་ "It is evident from the brief comments on this provision, and the established practice in our diplomatic intercourse *, that its language has been viewed as particularly directed against every kind of influence by foreign governments upon officers of the United States, based on our historic policies as a nation. Although it is manifest that the particular collocation of words in the Constitution, like the words 'any foreign prince or state' in the neutrality statutes, refers chiefly to a foreign government and its regular executive it would not, in my judgment, be sound to hold that a titular prince, even if not a reigning potentate, is not included in the constitutional prohibition. For the phrase of the provision is 'any king, prince, or foreign state, and a titular prince, although not reigning, might have the function of bestowing an office or title of nobility or decoration, which would clearly fall under the prohibition. As this remark suggests generally the character of the gift, whether a present or some title of honor * it must be observed that even a simple remembrance of courtesy, which from motives of delicacy recognizes our policy, like the photographs in this case, falls under the inclusion of 'any present *** of any kind whatever.' The act of 1881 (supra) which, it is true, refers only to a foreign government, uses the words 'any present, decoration, or other thing. (24 Op. Atty. Gen. 116, 117-118, Sept. 8, 1902.) " "But as the constitutional prohibition expressly and exclusively relates to official persons, it could not properly be extended, under the circumstances at all events, in my judgment, to a department of the Government and to governmental institutions." (24 Op. Atty. Gen., supra, at 118.) "It is not intended to imply that a present of the kind mentioned in the above-quoted clause of the Constitution can be accepted by any and every employee of the Government other than those appointed by the If the present is not given by any king, prince or foreign state, but by the citizens of a foreign city, its acceptance by the commanding officer of a naval vessel, without the consent of Congress, would not be a violation of this clause of the Constitution. (File 9644-43, Apr. 6, 1918, C.M.O. 37-1918.) An appointment of a retired officer of the Navy as an honorary consul of a foreign country, although without compensation, would constitute an appointment to an "office" within the meaning of this clause of the Constitution, and the acceptance of such an appointment by a retired officer of the Navy, "without the consent of the Congress", would be in direct violation of the clause. (File OR/P16-3(18) (340310), Mar. 20, 1934, C.M.O. 3-1934, p. 3.) By virtue of this clause of the Constitution an enlisted man transferred from the regular Navy to the Fleet Naval Reserve may not, in the absence of the consent of Congress, contract with the government of a South American country to instruct its military forces in the repair and maintenance of its aviation equipment. (File MM/P14-2(340326), May 7, 1934, C. M. 0. 5-1934, p. 19.) By virtue of this clause a commissioned officer of the Naval Reserve may not legally accept a temporary position as purchasing agent, inspector of materials, construction engineer, or similar position, with the government of a foreign country. (File 00/P163(18) (390911), Sept. 18, 1939.) This clause prohibits the acceptance, by an officer on the retired list of the Navy, of an offer of employment with the British Purchasing Commission. (File OR/P16-3(18) (410804), Aug. 18, 1941.) An officer of the Naval Reserve may, without violating this clause, wear on his uniform certain ribbons representing decorations awarded to him by the government of Russia during World War I while he was serving in the Russian army. (File 00/P15 (10) (380207) J: fmh, Mar. 18, 1938, C.M.O. 3-1938, p. 9.) This clause prohibits an officer on the retired list of the Navy from becoming a member of the Canadian armed forces. (File JAG:J: JAL: amp, Nov. 23, 1943, C.M.O. 4-1943, p. 116.) Section 10. Clause 1. Restrictions upon States respecting treaties, letters of marque and reprisal, coinage of money, bills of attainder, ex post facto laws, impairment of contracts, etc. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. CASE NOTES Meaning of "State". "A state, in the ordinary sense of the Constitution, is a political community of free citizens occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country. (Texas v. White, 7 Wall. 700, 731, Dec. Term, 1868. See also Mahon v. Justice, 127 U.S. 700, 704-705, May 14, 1888.) Bills of attainder.- "A bill of attainder is a legislative act which inflicts punishment without a judicial trial." (Cummings v. State of Missouri, 4 Wall. 277, 323, Dec. Term, 1866.) "If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, befls of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text-book, judicial magistracy; it pronounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether conformable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offence." (Cummings ▼. State of Missouri, supra, at 323. See also: Ogden v. Saunders, 12 Wheat. 212, Jan. Term, 1827; Drehman v. Stifle, 8 Wall. 595, 601, Dec. Term, 1869.) Ex post facto laws.- "By an ex post facto law is meant one which imposes a punishment for an act which was not punishable at the time if was committed; or imposes additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required." (Cummings v. State of Missouri, 4 Wall. 277, 325-326, Dec. Term, 1866.) "This term ex post facto necessarily implies a fact or act done, after which the law in question is passed. Whether it is ex post facto or not relafes, in criminal cases, to which alone the phrase applies, to the time at which the offence charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offence, be an ex post facto law. If passed after the commission of the offence, it is as to that ex post facto, though whether of the class forbidden by the Constitution may depend on other matters. But 80 far as this depends on the time of its enactment, it has reference solely to the date at which the offence was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character. (Kring v. Missouri, 107 U.S. 221, 225-226, Oct. Term, 1882.) "Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed nor provide a greater punishment therefor than was prescribed at the time of it's commission; nor do they alter the degree, or lessen the amount or meas ure, of the proof which was made necessary to conviction when the crime was committed." (Hopt v. Utah, 110 U. S. 574, 589, Mar. 3, 1884.) "It is not necessary to review the numerous son v. Utah, 170 U. S. 343, 351, Apr. 25, 1898. The "But the ex post facto clause looks to the standard of punishment prescribed by the statute, rather than to the sentence actually imposed. Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrong. doer. ✶ ✶✶ It is for this reason that an increase in the possible penalty is ex post facto ***, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier ✶ ✶ ✶." (Lindsey v. Washington, 301 U. S. 397, 401, May 17, 1937.) Clause 2. Restrictions upon States respecting imposts and duties. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. Clause 3. Restrictions upon States respecting tonnage duties, ships of war, compacts between State: etc. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Article. II. Section. 1. Clause 1. Executive power vested in President; terms of President and Vice-President. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be Plected, as follows: obligation to take care that the laws be faithfully executed; (Mvers, Admr. v. United States, supra, at 163-164.) "The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power." (Kendall v. United States, 12 Pet. 524, 610, Jan. Term, 1838. See also: State of Mississippi v. Johnson, Prasident, 4 Wall. 475, Dec. Term, 1866; 25 Op. Atty. Gen. 326, 330-331, Jan. 9, 1905.) Action through heads of departments.- "The president speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties." (Wilcox v. Jackson, 13 Pet. 498, 513, Jan. Term, 1839. See also: The Confiscation Cases, 20 Wall. 92, 108-109, Oct. Term, 1873; United States v. Farden, 99 U. s. 10, 19, Oct. Term, 1878; Wolsey v. Chapman, 101 U. S. 755, 770, Oct. Term, 1879; Wood v. Beach, 156 U. S. 548, 549-550, Mar. 4, 1895; United States v. Cutter 25 Fed. Cas. 740, 743, No. 14, 911, Oct. Term, 1856; Chippewa Indians of Minnesota v. United States, 90 Ct. Cls. 140, 150, Jan. 8, 1940.) "The power of the executive to establish rules and regulations for the government of the army, is undoubted. *** The power to establish implies, necessarily, the power to modify or repeal, or to create anew. The secretary of war is the regular constitutional organ of the president, for the administration of the military establishment of the nation; and rules and orders publicly promulged through him must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority. (United States v. Eliason, 16 Pet. 291, 301-302, Jan. Term, 1842. See also: In re Brodie, 128 F. 665, 668, Mar. 4, 1904; Davis v. Woodring, 111 F.2d 523, 525, Apr. 8, 1940; Seltzer v. United States, 98 Ct. Cls. 554, 559, Mar. 1, 1943.) "The secretary of the navy represents the President, and exercises his power on the subjects confided to his department." (United States v. Jones, 18 How. 92, 95, Dec. Term, 1855. See also: Button v. United States, 20 Ct. Cls. 423, 425, June 1, 1885; Hayden v.. United States, 38 Ct. Cls. 39, 50-51, Dec. 8, 1903; Weller v. United States, 41 Ct. Cls. 324, 335, Apr. 2, 1906; 1 Op. Atty. Gen. 380, July 6, 1820; 6 Op. Atty. Gen. 357, 365, Mar. 12, 1854; 29 Op. Atty. Gen. 205, 209, July 17, 1911:) "There can be no doubt that the President, in the exercise of his executive power under the Constitution, may act through the head of the appropriate executive department. The heads of departments are his authorized assistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts." (Runkle v. United States, 122 U. S. 543, 557, May 27, 1887. See also: Jones v. United States, 137 U. S. 202, 217, Nov. 24, 1890; United States v. Fletcher, 148 U. S. 84, 88-90, Mar. 6, 1893; Maresca v. United States, 277 F. 727, 735, Sept. 27, 1921, cert. den., 257 U.S. £57, Jan. 3, 1922; Truitt v. United States, 38 Ct. Cls. 398, 403404, Mar. 9, 1903; Adams v. United States, 42 Ct. Cls. 191, 211-212, Feb. 18, 1907: 9 Op. Atty. Gen. 4F2, 465, July 31, 1860.) "The President's duty in general requires his superintendence of the administration; yet this duty cannot require of him to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform. This cannot be, 1st. Because, if it were practicable, it would be to absorb the duties and responsibilities of the various departments of the government in the personal action of the one chief executive officer. It cannot be, for the stronger reason, that it is impracticable--nay, impossible." (Williams v. United States, 1 How. 290, 297, Jan. Term, 1843. See also In re Neagle, 135 U. S. 1, 63-64, Apr. 14, 1890.) "In discussing the questions of law involved in this position, counsel for the claimant starts with these propositions: that the order of dismissal issued from the Navy Department under the official signature of Secretary Welles was without authority of law; that the President alone, at that time, was invested with,power to summarily dismiss from the service a commissioned officer of the Marine Corps; and that, since the order in question simply purported to be the act of the Secretary, and did not purport to be the act of the President, or to have been issued in pursuance of any previous direction by him given, the presumption cannot be indulged that the dismissal of Lieutenant McElrath was by order of the President. "These propositions open up a very broad field of inquiry as to what exceptions there are to the general rule that the direction of the President is to be presumed in all instructions and orders issuing from the proper department concerning executive business, notwithstanding they may contain no express statement of any direction from him as to the matters to which such instructions or orders refer. There are, undoubtedly, official acts which the Constitution and laws require to be performed by the President personally, and the performance of which may not be delegated to heads of departments, or to other officers in the executive branch of the government. It is equally true that, as to the vast multia plicity of matters involved in the administration of the executive business of the government, it is physically impossible for the President to give them his personal supervision. Of necessity he must, as to such matters, discharge his duty through the instrumentality or by the agency of others. Whether a particular act belongs to one or the other of these classes may sometimes be very difficult to determine, and we shall not attempt now to lay down any general rule upon the subject. Nor shall we extend this opinion by any consideration of the question whether the particular order, signed by Secretary Welles, should not be presumed to have been issued by direction of the President." (McElrath v. United States, 102 U. S. 426, 436-437, Oct. Term, 1880.) "Under the practice in the Navy Department and in other Executive Departments many things may be done by the head of the Department without the actual signature of the President, which, when done, are the acts of the President himself; but in such instances it is proper that the instrument, whether it be a commission or other document, should declare the act to be an act of the President, performed by the head of the Department as his representative. " (22 Op. Atty. Gen. 82, 84, May 16, 1898.) "We must take judicial notice of the powers and duties of the Secretary of the Navy under the Constitution and laws. The officers of the Navy are not his agents. They, like the Secretary himself, are the agents and representatives of the President of the United States, who is the Commander-in-Chief of the Army and Navy. The officers in command of the island of Guam are subject to his orders. Any authority which the 'Secretary may exercise over them is solely as the representative of the President, in his name, and as the organ of his will." (McGowan See v. Moody, 22 App. D. C. 148, 164, June 2, 1903. also 1 Op. Atty. Gen. 380, July 6, 1820.) Clause 2. Electors of President and Vice-President. Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate, The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. Clause 3. Time of choosing electors, and voting by electors.7 The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. Clause 4. Eligibility for office of President.] No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. Clause 5. Succession to powers and duties of office of 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 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. EDITORIAL NOTE Succession to the duties of the President is provided for by an act of Jan. 19. 1886, ch. 4, 24 Stat. 1. The first two sections of this act read as follows: "That in case of removal, death, resignation, or inability of both the President and Vice Fresident 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 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 Postmaster-General, 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, résignation, or inability, then the Secretary of the Inter ior, 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 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. 2. That 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. Clause 6. Compensation of President. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Clause 7. Oath of President. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. Section 2. Clause 1. Commander in Chief of the Army and Navy; authority over heads of executive departments; power to grant reprieves and pardons for offenses against the United States.7 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. CASE NOTES I. COMMANDER IN CHIEF OF THE ARMY AND NAVY. In general.- "Very little light is thrown upon the question relating to volunteers by prior legislation. It is true that the Constitution provides that '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. ' Nothing is said in this connection of volunteers; but the object of the provision is indently to vest in the President the supreme command over all the military forces, such supreme and undivided command as would be necessary to the prosecution of a successful war." (United States v. Sweeny, 157 U. S. 281, 284, Mar. 25, 1895. See also Johnson v. Sayre, 158 U. S. 109, 115, May 6, 1895.) - "You The President of the Senate are aware, of course, that the Executive has powers not enumerated in the statutes--powers derived not from statutory grants but from the Constitution. It is universally recognized that the constitutional duties of the Executive carry with them the constitutional powers necessary for their proper performance. These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. In a measure this is true with respect to most of the powers of the Executive, both constitutional and statutory. The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action. " (39 Op. Atty. Gen. 343, 347-348, Oct. 4, 1939.) "The Constitution confers on the President the 'executive Power, Art. II, § 1, el. 1, and imposes on him the duty to 'take Care that Laws be faithfully executed. ' Art. II, § 3. It makes him the Commander in Chief of the Army and Navy, Art. II, § 2, cl. 1, and empowers him to appoint and commission officers of the United States. Art. II, 3, cl. 1. " (Ex parte Quirin et al., 317. U. S. 1, 26, July 31, 1942) "The Constitution thus invests the President, as Commander in Chief, with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offenses against the law of nations, including those which pertain to the conduct of war. " Ex parte Quirin et al., supra, at 26.) Promulgation of rules and regulations.- "Under Section 2, Article 2 of the Constitution, U. S. C. A. the President is made the Commander in Chief of the Army and the Navy of the United States. Under this section, as Commander in Chief, the President has the power to employ the Army and the Navy in a manner which he may deem most effectual. This includes the power to establish rules and regulations for the government of the Army and the Navy and such regulations made pursuant to the authority thus 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 must be binding upon all within the sphere of his authority." (Nordmann v. Woodring, 28 F. Supp. 573, 576, June 30, 1939.) Convening of courts-martial.- "Without dwelling longer on this question, we approve the conclusion reached by the Court of Claims, that it is within the power of the President of the United States, as commander-in-chief, to validly convene a general court-martial even where the commander of the accused officer to be tried is not the accuser. (Swaim v. United States, 165 U. S. 553, 558, Mar. 1, 1897. See also 15 Op. Atty. Gen. 290, 297-303, June 6, 1877.) Confirmation of sentences of courts-martial."By the constitution, the President is made commander-in-chief of the army and navy of the United States. But, in a government limited like ours, it would not be safe to draw from this provision inferential powers, by a forced analogy to other governments differently constituted. Let us draw from it, therefore, no other inference than that, under the constitution, the President is the national and proper depositary of the final appellate power, in all judicial matters touching the police of the army; but let us not claim this power for him, unless it' has been communicated to him by some specific grant from Congress, the fountain of all law under the constitution. (1 Op. Atty. Gen. 233, 234, Sept. 14, 1818.) Command of armed forces.- "Thus the President's responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States. As pointed out by the texts just cited Black, Handbook of American Constitutional Law (3d ed., 1910); Willoughby, The Constitutional Law of the United States (2d ed., 1929); and Corwin, The President: Office and Powers (19407, this authority undoubtedly includes the power to dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country. Likewise of course the President may order the carrying out of maneuvers or training, or the preparation of fortifications, or the instruction of others in matters of defense, to accomplish the same objective of safety of the country. Indeed the President's authority has long been recognized as extending to the dispatch of armed forces outside of the United States, either on missions of good will or rescue, or for the purpose of protecting American lives or property or American interests. (40 Op. Atty. Gen., No. 55, May 23, 1941.) Assignment of duties of officers.- "As commanderin-chief of the army it is your the President's7 |