United States. That is a power constitutionally inherent in the person of the President. No act of Congress, no act even of the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President." (7 Op. Atty. Gen. 453, 465, Aug. 31, 1855.)

"While the President is made commander-in-chief by the Constitution, Congress have the right to legislate for the Army, not impairing his efficiency as such commander-in-chief, and when a law is passed for the regulation of the Army, having that constitutional qualification, he becomes as to that law an executive officer, and is limited in the discharge of his duty by the statute." (McBlair v. United States, 19 Ct. Cls. 528, 541, May 19, 1884.)

"The clause of the Constitution authorizing Congress to provide and maintain a Navy' confers on it the power of determining when and for what purpose the naval forces of the United States may be used. It follows that the constitutional provision constituting the President the Commander in Chief of the Army, Navy, and Militia would not give power to use the Navy in a manner other than as authorized by Congress." (33 Op. Atty. Gen. 562, 567568, Sept. 13, 1923.)

"Congress holds the purse strings, and it may grant or withhold appropriations as it chooses, and when making an appropriation may direct the purposes to which the appropriation shall be devoted and impose conditions in respect to its use, provided always that the conditions do not require operation of the Government in a way forbidden by the Constitution. Congress may not, by conditions attached to appropriations, provide for a discharge of the functions of Government in a manner not authorized by the Constitution. If such a practice were permissible, Congress could subvert the Constitution. It might make appropriations on condition that the executive department abrogate its functions. It might, for example, appropriate money for the War Department on condition that the direction of military operations should be conducted by some person designated by the Congress, thus requiring the President to abdicate his functions as Commander in Chief." (37 Op. Atty. Gen. 56, 61, Jan. 24, 1933.)

Nature of pardon.- "A pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offence, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives to him

a new credit and capacity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give him compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established y judicial proceedings, that which has been done or Juffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by other whilst that judgment was in force." (Knote v. United States, 95 U.S. 149, 153-154, Oct. Term, 1877. See also: United States v. Wilson, 7 Pet. 150, 160-161, Jan. Term, 1833; Ex parte William Wells, 18 How. 307, 311, Dec. Term, 1855; Ex parte Garland, 4 Wall. 333, 380381, Dec. Term, 1866; Illinois Central Railroad Company v. Bosworth, 133 U.S. 92, 104, Jan. 20, 1890; United States v. Benz, 282 U.S. 304, 311, Jan. 5, 1931; Bennett v. United States, 88 Ct. Cls. 602, 605, Apr. 3, 1939.)

"We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. *** Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. So far as a pardon legitimately cuts down a penalty, it affects the judgment imposing it. No one doubts that a reduction of the term of an imprisonment or the amount of a fine would limit the sentence effectively on the one side and on the other would leave the reduced term or fine valid and to be enforced, and that the convict's consent is not required." (Biddle v. Perovich, 274 U.S. 480, 486-487, May 31, 1927. Compare: United States v. Wilson, supra, at 161; Burdick v. United States, 236 U.S. 79, Jan. 25, 1915. See also 31 Op. Atty. Gen. 419, 422, Apr. 4, 1919.)

"The Constitution of the United States confers upon the President 'power to grant pardons for offenses against the United States, thus assimilatinį a pardon to an express grant by deed, and the general constitutional provision is of this character. This was but an adoption of the English rule that pardon was a grant under the great seal. Even an instrument in effect granting a pardon under the sign manual of the King was not sufficient. *** Accordingly all the courts in this country, construing the constitutional provision, hold that a pardon is an express act of the Executive or legislature evidenced by something in the nature of a formal grant. (31 Op. Atty. Gen. 419, 421-422, Apr. 4, 1919.)

"Nor is the form which this pardon may assume at all important, or the manner of its promulgation. Whenever the President, as an act of grace or clemency, intervenes to condone, in whole or in part, an offense committed, or to prevent or remit the whole or a portion of a punishment ordered; or to commute the whole or a portion thereof by the substitution of another less severe; or to remove disabilities consequent upon conviction; and in whatever

form this is done, whether by a formal pardon directed and delivered to the beneficiary, by executive order through the Adjutant-General, or by a proclamation of amnesty to a class of offenders, this is always and necessarily an exercise of the pardoning power vested in the President by the Constitution. In no other way can the President interfere to condone an offense, prevent or mitigate a punishment adjudged, or remove disabilities consequent upon conviction." (27 Op. Atty. Gen. 178, 181, Feb. 17, 1909.)

"A pardon must be delivered to the prisoner, or some one for him, before it can become legally effective. Until then, it rests in the pleasure of the pardoning power to rescind and withdraw what up to that time, is a mere promise to grant a favor in the future." (Ex parte Harlan, 180 F. 119, 127, Nov. 1, 1909, aff., 218 U.S. 442, Nov. 28, 1910.)

The temporary promotion of an officer of the Navy while under charges awaiting trial by general court-martial does not operate as a constructive pardon of the offenses charged against him. A pardon by implication or construction is a thing not known to or recognized by the law. (31 Op. Atty. Gen. 419, Apr. 4, 1919. Compare: 4 Op. Atty. Gen. 8, Mar. 18, 1842; 6 Op. Atty. Gen. 123, Sept. 20, 1853; 8 Op. Atty. Gen. 223, 237, Dec. 10, 1856.)

The

Amnesty and pardon distinguished. - "It is of little service to assert or deny an analogy between amensty and pardon. Mr. Justice Field, in Knote v. United States, 95 U.S. 149, 153, said that 'the distinction between them is one rather of philological interest than of legal importance.' This is so as to their ultimate effect, but there are incidental differences of importance. They are of different character and have different purposes. The one overlooks offense; the other remits punishment. first is usually addressed to crimes against the sovereignty of the State, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the State. Amnesty is usually general, addressed to classes or even communities, a legislative act, or under legislation, constitutional or statutory, the act of the supreme magistrate." (Burdick v. United States, 236 U.S. 79, 94-95, Jan. 25, 1915. See also: Jenkins v. Collard, 145 U.S. 546, 560-561, May 16, 1892; Brown v. Walker, 161 U.S. 591, 601, Mar. 23, 1896; 11 Op. Atty. Gen. 227, 228, May 8, 1865; 20 Op. Atty. Gen. 330, Mar. 9, 1892.)

Conditional pardon. - "Art. 2, § 2, cl. 1, Const., gives the President the power to grant pardons, and by this grant of power he may grant conditional pardons." (United States v. Praxulis, 49 F.2d 774, 776, Mar. 6, 1931, citing Ex parte William Wells, 18 How. 307, Dec. Term, 1855. See also: United States v. Klein, 13 Wall. 128, 142, Dec. Term, 1871; Semmes v. United States, 91 U.S. 21, 27, Oct. Term, 1875; In re Ruhl, 20 Fed. Cas. 1335, No. 12, 124, May 15, 1878; 11 Op. Atty. Gen. 227, 229, May 8, 1865.)

As a pardon is an act of grace, "limitations upon its operation should be strictly construed.". (Osborn v. United States, 91 U.S. 474, 478, Oct. Term, 1875.)

Scope of pardoning power. - "The Constitutior provides that the President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.'" (Ex parte Garland, 4 Wall. 333, 380, Dec. Term, 1866.)

"The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This 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. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." (Ex parte Garland, supra, at 380. See also: Stetler's Case, 22 Fed. Cas. 1314, No. 13, 380, Feb. 27, 1852; United States v. Harris, 26 Fed. Cas. 174, No. 15, 312, Mar. Term, 1866; United States v. Thomasson, 28 Fed. Cas. 82, No. 16, 479, May, 1869; 6 Op. Atty. Gen. 20, Apr. 15, 1853; 20 Op. Atty. Gen. 330, Mar. 9, 1892; 23 Op. Atty. Gen. 360, Jan. 22, 1901; 27 Op. Atty. Gen. 178, Feb. 17, 1909.)

"Although the Constitution vests in the President 'power to grant reprieves and pardons for offences against the United States, except in cases of impeachment, this power has never been held to take from Congress the power to pass acts of general amnesty, and is ordinarily exercised only in cases of individuals after conviction, although, as was said by this court in Ex parte Garland, 4 Wall. 333, 380, 'it extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (Brown v. Walker, 161 U.S. 591, 601, Mar. 23, 1896.)

A criminal contempt, committed by disobedience of an injunction issued by a district court, is an "offence against the United States," within the meaning of Art. II, sec. 2, cl. 1, of the Constitution and pardonable by the President thereunder. (Ex parte Grossman, 267 U.S. 87, Mar. 2, 1925. See also: United States v. Goldman, 277 U.S. 229, 235, May 14, 1928; Ex parte Fisk, 113 U.S. 713, 718, Mar. 2, 1885; The Laura, 114 U.S. 411, 413, Apr. 13, 1885; In re Mullee, 17 Fed. Cas. 968, No. 9, 911, Oct. 20, 1869; 3 Op. Atty. Gen. 622, Feb. 27, 1841; 4 Op. Atty. Gen. 458, Nov. 28, 1845; 19 Op. Atty. Gen.. 476, Jan. 30, 1890.)

"The constitutional prerogative of the President to grant reprieves and pardons includes the power to commute punishments." (Ex parte Harlan, 180 F. 119, 127, Nov. 1, 1909; aff., 218 U. S. 442, Nov. 28, 1910.)

Effect of pardon. - "A pardon reaches both the punishment prescribed for the offence 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 offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity." (Ex parte Garland, 4 Wall. 333, 380-381, Dec. Term, 1866. Accord: Carlisle v. United States, 16 Wall. 147, 151, Dec. Term, 1872; Jenkins v. Collard, 145 U.S. 546, 556, May 16, 1892. Compare: Carlesi v. People of the State of New York, 233 U.S. 51, 59, Apr. 6, 1914; People ex rel. Prisament v. Brophy, 38 N. E. 2d 468, 470-471, Nov. 27, 1941.)

"There is only this limitation to its operation: it does not restore offices forfeited, or property or interests vested in others in consequence of the

conviction and judgment." (Ex parte Garland, supra, at 381. See also: Armstrong's Foundry, 6 Wall. 766, Dec. Term, 1867; Semmes v. United States, 91 U.S. 21, Oct. Term, 1875; Osborn v. United States, 91 U.S. 474, Oct. Term, 1875; Knote v. United States, 95 U.S. 149, 153-154, Oct. Term, 1877; Vanderslice v. United States, 19 Ct. Cls. 480, 486, Apr. 28, 1884; 11 Op. Atty. Gen. 19, 22, Mar. 12, 1864.)

"So, also, if the proceeds of a sale of property in execution of a judgment/ have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law. However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers, --it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power. (Knote v. United States, supra, at 154. Accord: 23 Op.Atty. Gen. 360, Jan. 22, 1901; Vanderslice v. United States, supra, at 480.)

"In Ex parte Garland, 4 Wall. 380, Mr. Justice Field speaking for a majority of the court says: '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 eyes of the law the offender is as innocent as if he had never committed the offense.' This is probably as strong and unqualified a statement of the scope and efficacy of a pardon as can be found in the books. And yet I do not suppose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offense." (In re Spenser, 22 Fed. Cas. 921, 922, No. 13, 234, July 8, 1878.)

"Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, --preferring to be the victim of the law rather than its acknowledged transgressor--preferring death even to such certain infamy." (Burdick v. United States, 236 U.S. 79, 90-91, Jan. 25, 1915. See also: 1 Op. Atty. Gen. 233, Sept. 14, 1818; 11 Op. Atty. Gen. 227, 228, May 8, 1865.)

A pardon by the President does not alter the fact that the service of an enlisted man convicted of desertion was not "honest and faithful" within the meaning of statutes relating to the Army. Congress has the power to prescribe qualifications and conditions for enlisted men and to forbid those not possessing such oifications to enter the military service. (22 Op.Atty. Gen. 36, Feb. 9, 1898. See also File 26251-1963; 1, Aug. 17, 1910.)

A pardon can not change an existing or accomplished fact, or operate as an honorable discharge from the Army where, as matter of fact, the person pardoned was dishonorably discharged by the sentence of a court-martial. (27 Op.Atty. Gen. 178, Feb. 17, 1909. See also File MM-Reinhardt, W. S/P191(370416), Apr. 28, 1937, C.M.O. 4-1937, pp. 6-7.)

A pardon by the President will restore an officer whose rank has been reduced by sentence of a court-martial to his former relative rank according to the date of his commission. (12 Op. Atty. Gen. 547, Jan. 22, 1869.)

The general law relating to the Navy provides that line officers "shall take rank in each grade according to the dates of their commissions" (citing sec. 1467, R. S.). When an officer loses numbers by sentence of a court-martial, he is, as a consequence thereof, placed below officers in his grade who would otherwise be his juniors by date of commission. So long as he remains in that grade and is deprived of the position therein to which his date of commission would entitle him, his punishment is a continuing one and may be remitted by the President, thereby restoring him to his former position in his grade according to the date of his commission. Upon his promotion to the next higher grade he is given another commission and thereafter, unless reduced or advance in accordance with law, he must take rank in such higher grade according to the date of his new commission, His sentence, which was to lose numbers in the lower grade which he previously held, is then fully executed and although its effect of course remains his position in the higher grade is fixed by the date of his commission therein as prescribed by law, and not by reference to the court-martial sentence as it was in the lower grade. Nothing thereafter remains of the sentence upon which the President's pardon could operate. His date of commission controls

his relative position with other officers in his grade and he could not, under the present law, be advanced to a higher position therein except for distinguished conduct in battle or extraordinary heroism (citing secs. 1506-1510, R.S.). (File 26282-403:3, Sept. 29, 1924. See also File 26521432:2, July 16, 1921.)

An unconditional pardon of a person convicted of a felony effects a complete restoration of competency as a witness, notwithstanding that it was sought by a district attorney and given for that purpose expressly. (Boyd v. United States, 142 U.S. 450, Jan. 4, 1892. Accord: United States v. Jones, 26 Fed. Cas. 644, No. 15,493, April, 1824.)

A person convicted of an offense against the United States, and disfranchised by such conviction, can be restored to his former rights by a pardon issued before or after he had suffered the other

penalties incident to his conviction. (9 Op. Atty. Gen. 478, Sept. 22, 1860. See also: 14 Op. Atty. Gen. 124, Oct. 3, 1872; 27 Op. Atty. Gen. 178, Feb. 17, 1909; 31 Op. Atty. Gen. 225, Feb. 15, 1918.)

Where a convicted offender has been given an unconditional pardon, the President can not afterwards issue to him a supplemental pardon for the specific purpose of relieving him of disabilities resulting from laws of a State. If such disabilities were not removed by the pardon already issued, they are a matter under the control of the State and not of the pardoning power of the President. (7 Op. Atty. Gen. 760, July 9, 1856. See also 8 Op. Atty. Gen. 281, 284, Jan. 1, 1857.)

"A pardon procured by fraud or for a fraudulent purpose, upon the suppression of the truth, or the

suggestion of falsehood, is void." (11 Op. Atty. Gen. 227, 228, May 8, 1865.)

In general.- "The power to make treaties is given by the constitution, in general terms, without any description of the objects intended to be embraced by it; and consequently, it was designed to include all those subjects, which, in the ordinary intercourse of nations, had usually been made subjects of negotiation and treaty; and which are consistent with the nature of our institutions, and the distribution of powers between the general and state governments. And without attempting to define the exact limits of this treaty-making power, or to enumerate the subjects intended to be included in it; it may safely be assumed, that the recognition and enforcement of the principles of public law, being one of the ordinary subjects of treaties, were necessarily included in the power conferred on the general government." (Holmes v. Jennison, 14 Pet. 540, 569, Jan. Term, 1840. See also: Holden v. Joy, 17 Wall. 211, 242-243, Dec. Term, 1872; Geofroy v. Biggs, 133 U.6. 258, 266, Feb. 3, 1890; In re Ross, Petitioner, 140 U.S. 453, 463, May 25, 1891; 5 Moore, A Digest of International Law 164.)

"The Constitution gives to the President 'power, by and with the advice and consent of the Senate, to make treaties.' No enabling act of Congress is requisite in the premises. Whether, when a treaty has been duly made and ratified, there is need or not of an act of Congress to give effect to any of its stipulations, is another matter, and wholly irrelevant to the question of the power to make a treaty. That undenially belongs to the President and Senate." (7 Op. Atty. Gen. 186, 196, May 25, 1855.)

United States v. and United States 1915 were

"Whether the two cases cited Shauver, 214 F., 154, May 25, 1914, 7. McCullagh, 221 F. 288, Mar. 20, decided rightly or not they cannot be accepted as a test of the treaty power. Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found. (State of Missouri v. Holland, United States Game Warden, 252 U.S. 416, 433, Apr. 19, 1920.)

"The treaty-making power of the United States is not limited by any express provision of the Constitution, and, though it does not extend 'so far as to authorize what the Constitution forbids,' it does extend to all proper subjects of negotiation between our government and other nations. (Asakura v. City of Seattle, 265 U.S. 332, 341, May 26, 1924.)

"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmativa grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens ***; and operations of the nation in such territory must be governed by treaties, international understandings and compact, and the principles of international law. As a sumber of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign." (United States v. CurtisWright Export Corp., 299 U.S. 304, 318, Dec. 21, 1936.)

Advice and consent of the Senate.- "Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adoption of amendments to the treaty. (Concurring opinion of Mr. Justice Brown in Fourteen Diamond Rings, Emil J. Pepke, Claimant, v. United States, 183 U.S. 176, 183, Dec. 2, 1901.)

"A treaty signifies 'a compact made between two or more independent nations with a view to the public welfare.' Altman & Co. v. United States, 224, U.S. 583, 600. But an international compact, as this was, is not always a treaty, which requires the participation of the Senate. There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations." (United States v. Belmont, 301 U.S. 324, 330-331, May 3, 1937. See also United States v. Pink, 315 U.S. 203, 229-230, Feb. 2, 1942.)

Acquisition of Territory. The power to acquire territory, other than the territory northwest of the Ohio River, (which belonged to the United States at the adoption of the Constitution,) is derived from the treaty-making power and the power to declare and carry on war. The incidents of these powers are those of national sovereignty, and belong to all independent governments. The power

to make acquisitions of territory by conquest, by treaty and by cession is an incident of national sovereignty." (The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42, May 19, 1890. See also Downes v. Bidwell, 182 U.S. 244, 278, May 27, 1901.)

"It may be regarded as settled that the Constitution of the United States is the only source of power authorizing action by any branch of the Federal Government. *** It is equally well settled that the United States may acquire territory in the exercise of the treaty-making power by direct cession as the result of war, and in making effectual the terms of peace; and for that purpose has the powers of other sovereigns. (Dorr v. United States, 195 U.S. 138, 140, May 31, 1904.)

Legislation in aid of treaties.- "The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power." (Neeley v. Henkel, 180 U.S. 109, 121, Jan. 14, 1901.)

II. Appointing Power.

In general. "The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the constitution. The distinction between the appointment and the commission, will be rendered more apparent, by adverting to that provision in the second section of the second article of the constitution, which authorizes congress 'to vest, by law, 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; thus contemplating cases where the law may direct the president to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. "1 (Marbury v. Madison, 1 Cr. 137, 156,

Feb. Term, 1803.)

"The power of appointment results from the obligation of the executive department of the government 'to take care that the laws be faithfully executed;' an obligation imposed by the constitution, and from the authority of which no mere act of legislation can operate a dispensation. Congress may, however, indirectly limit the exercise of this power by refusing appropriations to sustain it, and

"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 offixed thereto, his appointment to that office is complete. Congress may provide, as it has done in this case, that certain acts shall be done by the appointee before he shall enter on the possession of the office under his 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 this office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions, his title to enter on the possession of the office is also complete." (United States v. Le Baron, 19 How. 73, 78, Dec. Term, 1856.)

That discretion

"The nomination is not an appointment; neither is the confirmation. The nomination and confirmation serve but to indicate the purpose of the President to appoint and the consent of the Senate that the They do not appointment may be made thereafter. divest the Executive authority of the discretion to withhold the actual appointment. may be exercised at any time before the commission is actually signed. The signing of the commission, after the nomination and confirmation, consummates the appointment so far as the appointing power is concerned. *** Prior to such consummation the appointee can not accept or hold the office and is (27 not entitled to the salary attached thereto." Comp. Dec. 861, 862, Apr. 5, 1921. See also 17 Comp. Gen. 249, 252, Sept. 14, 1937.)

"It is a general principle of office, that a person cannot be made an incumbent without his consent, and, of course, this he must manifest by some adequate token of his intention." (12 Op. Atty. Gen. 229, Aug. 1, 1867. See also: 19 Op. Atty. Gen. 283, Apr. 13, 1889; 8 Comp. Dec. 521, 522, Feb. 12, 1902; 9 Comp. Gen. 190, 191, Nov. 6, 1929; 21 Comp. Gen. 819, 822, Feb. 27, 1942.)

The President is not authorized to nominate for office a person ineligible under Art. I, sec. 6, cl. 2, of the Constitution, and such a nomination, although confirmed by the Senate, can not be made the basis of an appointment to the nominee, even when his disqualification ceases. (17 Op. Atty. Gen. 522, Feb. 21, 1883.)

"The death of the incumbent could not more certainly have made a vacancy than was created by President Lincoln's order of dismissal from the service. And such vacancy could only have been filled by a new and original appointment, to which, by the Constitution, the advice and consent of the Senate were necessary; unless the vacancy occurred in the recess of that body, in which case, the President could have granted a commission to expire at the end of its next succeeding session." (United States v. Corson, 114 U.S. 619, 622, May 4, 1885.)

"When Congress creates an office, but does not vest the power of appointment thereto in any of the persons specified, then the Constitution operates proprio vigore and immediately caste upon the President, by and with the advice and conset [sic] of the Senate, the duty of appointing thereto. Where, on