and by and with the advice and consent of the Senate, sball 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. The

pan bon crimes, and the President, having no title to forfeited property, can not Feature it though he may pardon the offense which caused the forfeiture. Property confinated bs judgment to the United States is beyond the reach of executive Catedry and is absolutely national property. Knote v. U. S., 10 C. Cls. R., 397, 45€ 1.Sr. Six Lots of Ground, 1 Woods, 234. Osborn v. U. S., 91 U.S., 474, 477.

"lrading - pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance.

The pardon may possibly appls to a ditlereni prson or to a different crime. It may be absolute or conditional. It mas de controverted by the prosecutor and must be expounded by the court. Theme <iri tumstances combine to show that this, like any other deed, ought to be brorult lm fore the court by plea, motion, or otherwise. Ú. S. d. W'ilson, 7 Pet., 150, 16. Ex parte Reno, 66 Mo. 266. The recital of a specific, distinct offense in a Mardon by the President, limits its operation to that offense and such pardon does but at brace any other offe use for wluch separate penalties and punishments are fra d.d. Es parte Weimer. 8 Biss., C. Ct., 321. The conviction having been of ivo ottenses and the pardon reciting only one, the pardon operates upon the offense textes

Statet. Foley, 13 Nev., 64. !!hite opce - An office is a public station, or employment, conferred by the ap. postaw nt of Government. The term embraces the ideas of tenure, emolument, and

'The duties are con unning and permanent, not occasional and transi. 115. aprl are drtined by rules prescribed by Government and not by contract. A Government office is ditercut from a Government contract. The latter, from its haite, is pecpasarily limited in its duration and specific in its objects. The terms 3.****pun define the night and obligations of both parties, and neither may depart frum the su witbout the aunt of the other. V. S. v. Hartwell, 6 Wall., 385, 394; U.S.

Mauore, 2 Brockenbrough, 103. A public officer is the incumbent of an office **1XCIM S. continuoumly, and as a part of the regular and permanent administratwn of the Gosenmeni, its public powers, trusts, and duties.' Sheboygan Co. r. D'ART) Wall I, 90. l'nless a person in the service of the Government holds bin pare by virtue of an appowinient by the President, or of one of the courts of Iste op beads of Departments anthorized by law to make such an appointment, beta ut strictly speaking an officer of the United States. U. S. v. Mouat, 124 t'i Sr. Germaine, 99 U.S., 508, 510.

41!'puraruits to ofice. - Appointments provided for by act of Congress, merely in E' fatal term* must be made by and with the advice and consent of the Senate.

Alt lin.1 When a person has been nominated to an oflice by tho Presi. Atentirmed by the Senate, and his commission bas been signed by the President, ard the wal of the l’nited States atlixed thereto, bis appointment to that office is

fongremay provide .. that certain acts shall be done by the *ffihlre I forr lie sballinter on the possession of the oflice under the appoint. mrat. The art then become conditions precedent to the complete investiture of the offe, but i bes are to be performed by the appointee, not by the Executive; all 1.1 the Executir can do to invest the person with his office has been completed

the commion has been signed and sealed, and when the person has perfor the required condition. his title to enter on the possession of the othce is also

Ir Le Baron, 19 How., 73, 78; U. S. d. Stewart, ibid., 79; Marbury + Modi on I Cranch 137.

Prren of oferre - All the officers of the Government from the highest to the bel, ar bus agents with delegated powers, and if they act beyond the scope of 1. Ratu wes their acts do not bind the principal. U.S.C. Maxwell Grant, 2:1 Bordiep. 19. An officer can only bind the Government by acts which come vitittia jistetoskine of bis official power. Hunterr. L. S., 5 let., 173, 178; The Floyd 4***Jabes, 7 Wall. 646 Stater. Ilantings, 12 Wis., 596. It is a question of law for for furt whether an act is a part of the ofhcial duty of a public officer. V.S.O. alanan How ! Every public officer is requind to perform all duties which *** rlas othcial altho igh they may be required by laws passed after he comes into man may be cususlolive upon his original duties, and although biscompensation this to for boy wholls insequate. In surb cane he must look to the bounty of Con. IT s fup any additional riward. Andrews r. V.8.2 Story, 202. An otticer is bound to me that care and diligence in the discharge of his duties that a conscientious and 12 at man alting under a just selline of his obligations, would exercise under the

1 of particular case, and if he fails and neglects to do so he is culpa. b. 1. Taldu 11 Fel Rep., 352.

Prehous as to oficial aels. - The acts of an officer to whom a public duty is 2 Del within the phor of that duty are prima facie within his power. U.S.r. A dende o l'et.. 01: V.Su Clarke, ibid., 436, 452 Percheman r. U.S., 7 ibid., 51; 1* 5.9 ibid., 117. 134; Strothero. Locas, 12 ibid., 410.438; U. S. v. Peralta, 1 tỉ 1 :

W ben a particular functionary in clothed with the duty of decide 116 Averta ni gestion of fart, his decision in the absence of fraud, is conclusive. 1491. The County 16 Wall., 6. lle who alleges that an officer intrusted with los jartant duty has violated his instructions must show it. Tho courts ought to

[merged small][merged small][merged small][merged small][merged small][ocr errors]

Prepared, under the direction of the Honorable Daniel S. Lamont, Secretary of War,
by Lieutenant-Colonel George B. Davis, Deputy Judge-Advocate.

General, United States Army.

[ocr errors][ocr errors][merged small]
« ForrigeFortsett »