even where the efficiency of legal authority is entirely unimpeded, to suspend the operation of law. It expressly grants a "war-power" by which every inhabitant. of the Union — whether or no the district in which he resides is within the limits of the theatre of war or not may be deprived for the whole duration of the war of one of the most substantial safeguards of the law. It is, however, another question whether the president as commander-in-chief can bring about this condition of affairs. This question may now be regarded as decided against him.

The constitution provides that "the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it" (art. I., sec. 9, § 2). This states only in what cases the writ may be suspended, but not who is to order the suspension. At the beginning of the civil war, Attorney-general Bates claimed for the president the right to refuse obedience to a writ of habeas corpus. The final result of the conflicts between the president and the courts, and the earnest discussions caused by them, was, however, a decided victory for the doctrine that the suspension is a legislative act, and can therefore be ordered only by congress or by the president when and only when he has been authorized to do so by congress.

An

United States. The conclusions which the author reaches have, however, been much questioned.

Indisputably the doctrine last mentioned in the text must not only be assented to, but must be given great scope, in order to hold constitutional the sentence by a military commission of Mrs. Surratt, an accessory of Booth in the assassination of Lincoln. The District of Columbia was at the time, however, under military law.

1 Op. of the Attorneys-General, X., 74.

2 See Horace Binney, The Privilege of the Writ of Habeas Corpus, and, also, Martin vs. Mott, Wheaton, XII., 19. A vote of the house

act of March 3, 1863, authorized the president during the continuance of the rebellion to suspend the privilege in the entire domain of the Union or any part thereof, if he deemed it necessary. In a proclamation of September 15, 1863, Lincoln made use of this permission. This law, declared to be constitutional by the federal supreme court, shows that this war-power may be given the widest scope, but the same decision holds that the provision must be strictly construed, in accordance with its verbal tenor.1 Not only in case of a war with a foreign power must the writ be suspended only in the event of an invasion, but the suspension simply denies to a prisoner the right to sue out the writ; it does not authorize arrest without legal cause.2

It is beyond doubt that the president has the power of putting himself personally at the head of the army in war and of taking its immediate direction into his own. hands, but the view has always prevailed that this would not correspond with the intent of the constitution.3

of representatives, February 19, 1807, can, however, be interpreted as a direct recognition of the principle that there may be circumstances under which the privilege of habeas corpus, even without a legislative act, must give way to the public safety.

1 Ex parte Milligan, Wallace, IV., 133.

2 Ex parte Milligan, Wallace, IV., 133.

3 Jefferson Davis, the president of the Confederate States, also tried the role of a general.

Some of the powers granted by law to the president as commanderin-chief deserve special mention. His right of promotion is very limited. In general the principle prevails that promotion from rank to rank shall depend upon the time of service. In war, however, the president may, with the consent of the senate, as a reward for distinguished services against the enemy, grant a higher rank "by brevet." The legal position of an officer in the service will not be changed of itself by brevet-promotion, but the president may assign the brevet-officer to duty according to the rank of which he has only the title. In time of peace, there can be no dismissal from the

FOREIGN RELATIONS.

$57. INTERCOURSE WITH FOREIGN POWERS. In American works on constitutional law the statement is frequently found that the foreign relations of the Union are

service, except upon the judgment of a court-martial or in mitigation of a judgment. If an officer is absent without furlough for more than three months, the president can cashier him for desertion. If he has served forty years, he is entitled to be retired from active service. After thirty years' service, an officer may petition to be retired; it is then optional with the president whether or no to grant the petition. If an officer is sixty years of age, or has served for forty-five years, the president may retire him. The secretary of war, when directed by the president, convokes from time to time an army retiring board, formed of officers and military surgeons, in order to examine and determine whether and how officers have become disqualified for service. The decision of the retiring board must be approved by the president. Courts-martial are of two classes: the "general" and the regimental or garrison courts-martial. The former, in times of peace, can be organized only by direction of the general-in-chief commanding the entire army or by a general in command of a separate army or "of a particular department;" in time of war, they may be convened also by division and brigade commanders. They should when possible consist of thirteen officers and must consist of at least five. Their judgments are subject to the confirmation of the president in the following cases: When the commanders named are accusers and the accused is an officer under their command (in this case the president appoints the members of the court-martial); when in time of peace the sentence is dismissal from the service; when the sentenced person is a general; when the sentence is death, except in war in cases of a spy, of mutiny, of desertion, of murder, of "guerilla-marauders," and also of other high crimes. A death sentence, moreover, requires a two-thirds majority of the court-martial. Officers cannot be tried before the lower military tribunals; the decisions of these latter can extend only to the deprival of a month's wages, and imprisonment for a month, with or without "hard labor." There is a bureau of military justice, composed of a judge-advocate-general, an assistant judge-advocate-general, and eight judge-advocates. Justice is administered in the navy in substantially the same way. R. A. Ives, Military Law of the United States, N. Y., 1879.

the exclusive domain of the president, or in a manner, of the president and the senate. This is manifestly incorrect. Congress has, as we have already seen, a number of the most important powers in relation to international affairs. Unlimited, that statement is true only in regard to the intercourse of the Union with foreign powers. This is accomplished only through the president, but he must have the consent of the senate as to the persons by whom he is to be served in this respect. He "shall receive embassadors and other public ministers" (art II., sec. 3), and he is to appoint, with the consent of the senate, "embassadors, other public ministers and consuls" (art. II., sec. 2, § 2). He is not the sole bearer of the

On April 4, 1864, the house unanimously adopted a resolution, which declared that the United States were not indifferent spectators of the occurrences in Mexico and could not recognize a monarchical government erected in America under the auspices of a European power upon the ruins of a republic. (Congressional Globe, 1st Session, 38th Congress, p. 1408.) The secretary of state, W. H. Seward, at once instructed Dayton, the ambassador at Paris, to inform the French government that foreign affairs did not fall within the jurisdiction of congress. The house of representatives in turn, on December 19, 1861, declared its position in the following resolution: "Resolved, That congress has a constitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as well in the recognition of new powers as in other matters; and it is the constitutional duty of the executive department to respect that policy not less in diplomatic negotiations than in the use of the national force when authorized by law; and the propriety of any declaration of foreign policy by congress is sufficiently proved by the vote which pronounces it; and such proposition while pending and undetermined" (the resolution of April 4 was a "joint" one and the senate had not yet passed upon it) "is not a fit topic of diplomatic explanation with any foreign power." The first part of this resolution was adopted by a vote of one hundred and eighteen to eight, and the second — beginning "and the propriety "- by sixtyeight to fifty-eight. (Congressional Globe, 2d Session, 38th Congress, 65-67.)

? There has been much controversy over the question as to whether

power of the state in relation to foreign countries, but he alone represents it, and that, too, not only where one nation confronts another, but also where the rights and interests of individuals are involved,- so far as they do not come within the jurisdiction of the courts. This exclusive right of the president to represent the statepower in all international relations must not, however, be considered as only a formal right. He is also a cobearer of the state-power, and the exclusive representative right involves his having the exclusive right of initiative with the exception of the powers granted congress in art. I., sec. 8, 10, 11. Congress is, indeed, free to express its views on everything affecting relations with foreign powers, not only by criticism of the president's policy on the part of individual members, but also by formal resolutions and positive propositions. But although such action always has considerable actual weight and will often be the decisive factor in the conclusions of the president, it nevertheless cannot legally bind him in any way whatever. At most, there may be a doubt as to whether the constitutional provision which requires the concurrence of the senate to conclude a treaty is to be so understood that the senate has a certain, so to speak, direct participation in the right of initiative so far as treaties are concerned.

$58. THE TREATY POWER. The constitution says that the president "shall have power, by and with the ad

and how far the president is to determine at what foreign courts the United States shall have representatives, and of what kind these representatives shall be. The actual state of things is, that the president without any special legal authorization nominates ministers whom the senate either confirms or does not confirm. Fnally, however, the decision rests with congress, for congress cannot be compelled to appropriate the money needed for the ministers appointed. 1 The powers to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water,” etc.