
    JOHN H. McBLAIR v. THE UNITED STATES.
    [No. 14034.
    Decided May 19, 1884.]
    
      On the Facts.
    
    The facta are identical with those in Miller’s Case {ante). A retiring board recommends that an officer be retired; the President directs that he be “wholly retired”; a successor is appointed and confirmed; the President revokes his order and directs that the officer be placed on the retired list.
    I. The right of the President to command armies is different from the power to appoint officers. The power of appointing is not incident to the President as Commander-in-Chief, but subject to the consent of the Senate.
    II. The jurisdiction of the President over the relations of an officer to the Army and his right to determine whether an officer incapacitated for service be placed on the retired list or wholly retired are created by statute, and the President’s authority therein is wholly dependent upon the letter of positive enactment.
    
      III. The Revised Statutes (§ 1252) provide that when a retiring board finds that an officer’s incapacity is not the result of service, and the President approves the finding,’ “the officer shall he retired from active service, or ivliolly retired,” “as the President may determine,” but the President having once “ determined” cannot review his decision nor correct an error of judgment.
    IV. The President has the right upon the report of a retiring board to retain an officer in active service, or retire him from active service, or wholly retire him. But this is not a continuing power, and is performed to the extent of its existence by the one act of the President.
    V.The retired list of the Army is regulated by positive law, being a form of compensation adopted by the government.
    VI.The power of the President with reference to the retired list is regulated alone by acts of Congress.
    VII.The right of the President to review his own action, if it exist, must be subject to reasonable limitations. A change of an order after two distinct recognitions of approval would be an unreasonable exercise of the right of review.
    VIII.The regulation of the retired list by Congress can in no wise interiore with the constitutional power of the President as Commander-in-Chief.
    IX.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 duty by the statute.
    X.The department of the service called retirement being the creation of statute, he who claims a right in it must depend for the measure of his claim on the terms of the'law.
    
      The Reporters1 statement of the case:
    This case was transmitted to the court by the Secretary of the Treasury under the Revised Statutes, § 1063. The following are the facts as found by the court so far as they are involved in the decision of the case:
    I. The claimant was appointed a first lieutenant in the Army on the 14th May, 1861, and accepted the appointment on the 22d June, 1861.
    II. In September, 1862, he was examined by a retiring board, organized under the provisions of the act of August 3,1861, which found as follows:
    “After mature deliberation and a careful consideration of his case, the Board find that First Lieutenant J. II. McBlair, jr., 15th U. S. Infantry, is' incapacitated for active service, and that his incapacity does not result from any incident of service; and the Board recommend that First Lieutenant J. H. Mc-Blair, jr., 15th U. S. Infantry, be wholly retired from the service with one year’s pay and allowances.”
    The following order was thereupon issued:
    [Special Orders No. 447. —Extract.]
    “War Department,
    “Adjutant-General’s Oeeice,
    “ Washington, October 6th, 1863.
    *******
    “ 12. 1st Lieutenant J. H. McBlair, jr., 15th U. S. Infantry, having been found by a board of examination incapacitated for active service in the field, and that his incapacity does not result from any incident of service, the President directs that he be wholly retired from the service, with one year’s pay and allowances, and that his name be henceforward omitted from the Army Register.
    #####*#
    “By order of the Secretary of War :
    “ E. D. Townsend,
    “ Assistant Adjutant- General.”
    
    *******
    III. Subsequently, and at their respective dates, the following appointment, nomination, and confirmation took place:
    “ War Department, November 28,1863.
    “Sir: You are hereby informed that the President of the United States has promoted you to the rank of first lieutenant in the Fifteenth Regiment of Infantry in the service of the United States, to take effect from the third day of October, one thousand eight hundred and sixty-three, vice McBlair, retired. .
    “ Should the Senate, at their next session, advise and consent thereto, you will be commissioned accordingly.
    “Edwin M. Stanton,
    
      “Secretary of War.
    
    “1st Lieut. William H. Heilman,
    
      “15th U. S. Infantry, Ath Corps, Chattanooga, TennP
    
    “ Washington, December 31, 1863.
    “ To the Senate of the United States :
    
    “ I nominate the officers named in the accompanying list for promotion in the Army of the United States, as proposed by the Secretary of War.
    “Abraham Lincoln.”
    
      “War Department,
    “ Washington, December 31,1863.
    “ To the President of the United States :
    
    “ Sir : I have the honor to propose for your approbation the following list of promotions in the Army of the United States:
    “ Promotions.
    
    
      *******
    
    “fifteenth regiment' of infantry.
    
      *******
    
    “Second Lieutenant William H. Heilman, to be first lieutenant, October 3, 1863, viee McBlair, retired. 7
    7 # * * # * *
    “I am, sir, with great respect, your obedient servant,
    “Edwin M. Stanton,,
    
      llSeeretary of War.”
    
    “In Executive Session,
    “Senate of the-United States,
    “ March 18,1864.
    “ Resolved, That the Senate advise and consent to the promotion of the following named person in the Army of the United States, agreeably to their nominations, respectively, viz:
    * # $ %■ # * &
    “FIFTEENTH REGIMENT OF INFANTRY.
    
      * * * * * * *
    
    “ Second Lieutenant William H. Heilman, to be first lieutenant, October 3, 1863, viee McBlair, retired.
    
      ****** *
    
    “Attest:
    “J. W. Forney,
    “ Secretary.”
    
    IY. Subsequently the following order of the President was indorsed upon the original proceedings of the Board:
    “ On review of this case the President not being satisfied but that the disabling disease was contracted in the service, directs that the action of the department be so modified that Lieut. McBlair be placed on the retired list instead of being dropped, and as of the date at which he was dropped.
    “A. Lincoln.
    “April 8, 3864.”
    
      And thereupon the following formal order was promulgated:
    [Special Orders No. 143. — Extract.]
    “War Department,
    “Adjutant-General’s Oeeice,
    “ Washington, April 9th, 1864.
    
      *******
    
    “ 34. By direction of the President, so much of Special Orders No. 447, October 6th, 1863, from this office, as directed that 1st Lieutenant J. H. McBlair, jr., 15th U. S. Infantry, be wholly retired from the service with oue year’s pay and allowances, and that his name be omitted from the Army Register, is hereby revoked, and the following substituted:
    “1st Lieutenant J. H. McBlair, jr., 15th U. S. Infantry, having been found by a board of examination to be physically incompetent to discharge the duties of his office, the President directs that his name be placed upon the list of retired officers of that class in which the disability results from long and faithful service or some injury incident thereto, to date October 6th, 1863.
    
      *******
    
    “By order of the Secretary of War:
    “E. D. Townsend,
    
      “Assistant Adjutant- General.”
    Y. On the 1st July, 1864, the President issued to the officer who had been nominated and confirmed, as set forth in finding III, the following commission:
    
      “The President of the United, States of America to all who shall see these presents, greeting:
    
    “Know ye that, reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of William H. Heilman, I have nominated and, by and with the advice and consent of the Senate, do appoint him first lieutenant in the Fifteenth Regiment of Infantry in the service of the United States, to rank as such from the third day of October, eighteen hundred and sixty-three. , He is therefore carefully and diligently to discharge the duty of first lieutenant by doing and performing all manner of things thereto belonging. And I do strictly charge and require all officers and soldiers under his command to be obedient to his orders as first lieutenant. And he is to observe and follow such orders and directions, from time to time, as he shall receive from me, or the future. President of the United States of America, or the general or other superior officers set over him, according to the rules and discipline of war. This commission to continue in force during the pleasure of the President of the United States for the time being.
    
      “Given under my'hand, at the city of Washington, this first day of July, iu the year of our Lord one thousand eight hundred and sixty-four, and in the eighty-eighth year of the Independence of the United States.
    '“Abraham Lincoln.”
    “By the President:
    “Edwin M. Stanton,
    
      “Secretary of War.”
    
    VI. Since April 8, 1864, the claimant has been continuously borne on the retired list of the Army as first lieutenant. Prom May 1, 1864, to 1870 he was detailed to perform active duty in the Commissary Bureau and the Freedmen’s Bureau. He has remained continuously in the military service of the government from June, 1861, to the present day, unless the order of October 6, 1863, had the legal effect of dropping him from that service. Since March 2,1869, the claimant has performed no duty, save that of reporting monthly to the War Department by letter.
    
      Mr. M. F. Morris for the claimant:
    The revisory power reposed in the President by the act of Congress of August 3, 1861, is unquestionably a judicial, and not a merely executive power. It is a personal trust, and, like all judicial and all legislative power, it must be exercised immediately by the person in whom it is reposed, and it may not be delegated. This is a fundamental-principle of the common' law. In language as significant as it could well be, the Secretary of War was absolutely prohibited in such cases from acting in review of the finding of the retiring board, and his approval or disapproval was a matter of. no consequence. It is specifically made his duty to lay the matter before the President and to bring it to the President’s personal knowledge and have his personal action upon it before the issue of any departmental orders in regard to it. This provision of the law was wholly ignored.
    These retiring boards are tribunals of special and limited jurisdiction. The President, acting in review of their finding, acts as a court of special and limited jurisdiction. Now, it is a well-established principle of the common law that nothing is presumed in favor of the jurisdiction of such tribunals; that they must be shown affirmatively to have acted; that their proceeding, from beginning to end, must be shown to have been regular, and that upon him who affirms their validity in a court of general jurisdiction it is incumbent strictly to prove their regularity. Now, we have denied that there ever was .any judgment by the President in this case; and the fact is, that there never was any such judgment or any action whatever on which to base what we call the departmental order of October 6, 1863.
    We are not confronted here with the question whether one President can revoke or modify the acts of a previous President. Neither is there any question of vested rights, as in the cases of Mimmack, McElrath, and Blake. (97 U. S., 437; 102 U. S., 426; 103 U. S., 227.) The so-called revocation of April 8, 1864, is the act of the same President to whom it is sought to impute his Secretary’s act of October 6,1863; and the revocation displaced no one, interfered with no promotion, attempted to recall no appointment. To place a jierson on the retired list requires no concurrence of the Senate. It is not, therefore, an appointment in the sense of article 2, section 2, of the Constitution of the United States, that requires the advice and consent of the senate.
    Unquestionably whatever may be done may also be undone, either in the legislative, executive, or judicial branch of the government, with probably two exceptions: 1st. Where rights have vested under the act done, which would be interfered with by the attempted undoing; 2d. Where, by special limitation or the nature of the act done, the power to do so is exhausted by the act itself. It is not apparent that either exception is applicable in the present case; and the power of revocation must, therefore, necessarily be conceded.
    Again, if, as we have contended, a judicial power has here been conferred upon the President, it certainly can be exercised at any time during his term of office; and it is an inherent power in every tribunal, general and special, to have the right to reverse or modify its judgments at any time during the term at which judgment was given.
    Why should this inherent power be denied where probably there is most need of its existence?
    Is there to be no period of time after which an officer of the Army or Navy, or a judge upon the bench, or an attorney at the bar may feel safe in his position, and may rely upon continuous recognition, as a safeguard of his rights? Assuredly this is no unimportant consideration in this connection, for it has been repeatedly held that where the executive or legislative branch of the government has for a long time acquiesced in an existing condition of things, the courts will not industriously seek to overthrow it. (See Greely v. Thompson, 10 Howard, 225; United States v. Gilmore, 8 Wallace, 330; Grant v. Raymond, 6 Peters, 218, 244.)
    It is for the President alone, as commander of the military forces, to recognize who compose those forces and who are their officers, and it is not competent either for the accounting officers of the Treasury Department or the courts to go behind that recognition. The military power is specially conferred by the Constitution upon the President, and the independence provided by that instrument for the three separate and co-ordinate branches of the government would not be greatly subserved if the regulation and the very existence of that military service were drawn within the scope of general judicial interference. In a matter in which, either by the Constitution or by statute, the executive has jurisdiction, it is his right, as well as his duty, to exercise that jurisdiction, and a court may not review the propriety of its exercise. (Kendall v. United States, 12 Peters, 524; Decatur v. Paulding, 14'Peters, 497.)
    
      Mr. George L. Douglass (with whom was the Assistamt Attorney-General) for the defendant:
    Beyond all question, when his successor in office was nominated, confirmed, and appointed, the claimant became a private citizen, and he could thereafter only be restored to the Army by a new appointment. (97 U. S., 437; 102 U. S., 437; 103 U. S., 237; IY Atty. Gen. Op., 274; XII id., 421, 555.)
    Under the act of August 3, 1861, the President had undoubted discretion to adopt or to disregard the recommendation of the retiring board — to retire Lieutenant McBlair wholly from the service, as he did, or to retire him from active service merely. But having once completely exercised his discretion his powers were exhausted, and he could no more reinstate the claimant in the military service than he could place any other civilian upon the Army list, without a new appointment. This condition was never complied with, and hence, for reasons too well settled for argument, the claimant is in fact and in law not now an officer of the Army.
   Weld on, J.,

delivered the opinion of the court:

The claimant was appointed first lieutenant in the Army on the 14th day of May, 1861, and in September, 1863, was examined by a retiring board organized under the provisions of the act of August 3,1861. Said board made the following report, as the result of its examination :

“After mature deliberation and careful consideration of his case, the Board find that First Lieutenant J. H. McBlair jr. Fifteenth United States Infantry is incapacitated for active service, and that his incapacity does not result from any incident of the service, and the Board recommend that he be wholly retired from the service with one year’s pay and allowance.”

And thereupon the President on the 6th of October, A. D. 1863, directed

“That he be wholly retired from the service with one year’s pay and allowance and that his name be henceforward omitted from the Army Register.”

November 28, 1863, the President during the recess of the Senate promoted William H. Heilman first lieutenant, to take effect from the 3d day of October vice McBlair retired. December 31, 1863, the President nominated said Heilman to be first lieutenant from October 3,1863, vice McBlair retired.

April 8, 1864 the President revoked the order made on the 6th of October, 1863, and directed that the claimant be placed on the “ retired list as of the date at which he was dropped.” On the 9th of April the name of the claimant was placed on the “ retired list” of that class in which the disability results from long and faithful service, or some injury incident thereto, to date October 6,1863.

On the' 1st of July, 1864, the President issued to Heilman a commission as first lieutenant, to rank from the 3d day of October, 1863, he having been confirmed by the Senate on the 18th of April, 1864. Since April 8,1864 the claimant has been borne on the retired list of the Army as first lieutenant. From May 1,1864 to 1870 he was detailed to perform active duty in the Commissary and Freedmen’s Bureaus.

The above statement of facts presents, the substance of the claim, as made by the findings of the court: and although cases almost identical, have been decided at the present term, it may not be unprofitable to present further considerations, in support of tlie conclusions of law reached in this and former adjudications. We are called upon in this claim, to determine the power of the President, over the record of a case, in which he has approved, the finding of a -retiring board, by wholly retiring the officer from the Army, and the nomination and appointment of his successor.

We may approach the decision of the question presented by this record, without the apprehension, that there is danger of an invasion of the Constitutional prerogative of the President, to command the Army, and without the fear, that the effect of any decision we may render, can in any just sense interfere with the efficiency of the Executive, in the administration of his office, in the regulation of the Army of the United States.

The right of the President to command armies, and direct the minutest movement of the soldier, is very different from the exercise of the power of appointment of a person, by which the higher function of war is performed, through the instrumentality of officers of the Army. The power of appointment in the military service is not incident to the President as an exclusive power of his office, but is subject to the advice and consent of the Senate, so that in its exercise, there is called into requisition other volitions than the mere will of the President.

Article II, section 2, of the Constitution provides,

“ The President, shall with the advice and consent of the Senate, appoint the officers designated by the Constitution, and all other officers whose appoiniments are not herein provided for, but Congress may vest, in the President alone the appointment of such inferior officers as they think proper.”'

Congress have- not by law, vested in the President, the appointment of such officers as the claimant. The source of power is not the President alone, but the President and the Senate acting in concert of purpose

Having determined that the power of appointment in the Army, is not .incident'to the President, except in the discharge of a quasi civil function, we next inquire what is the source of his jurisdiction over the relations of an officer to the Army, and his right to determine the question as to whether an officer is to be kept in the Army, placed on the retired list, or wholly retired from the service. The last'two conditions or relations are the subjects of statutory law, they are created by express enactment, are not incident to the officer as a mere soldier, and the President in dealing with such relations, is in the adjustment of rights wholly dependent upon the letter of positive enactment.

The retiring b.oard upon whose report the President acted is provided for in chapter 2 of The Army entitled “ Retirement” Revised Statutes, p. 218, Section 1252 of that act provides :

“■When the Board finds that an officer is incapacitated for active service and that his incapacity is not the result of an incident of the service, and its decision is approved by the President, the officer shall be retired from active service, or wholly retired from the service, as the President may determine.
“ The name of the officer wholly retired from the service shall be omitted from the Army Register.”

It will be seen by reference to section 1250 of the foregoing statute that the report of the Board is to be laid before the President “ for his approval and orders in the case.”

Finding 4 clearly indicates, that the report of the board was placed before the President for his personal inspection and adjudication. He says on “ review ” of the case the President not being satisfied. The phraseology of the order shows that the President had simply changed his mind, upon the sufficiency of the evidence to establish the fact that the disease was not incident to the service.

The order of the 8th of April, 1864, revoking the order of the 6th of October, 1863, retiring claimant from the Army was not to correct a mistake of fact, but to correct an error of judgment, the President might have made, in approving the recommendation of a board against the weight of evidence.

By finding 2 the board “ after mature deliberation and consideration ” found the claimant “ incapacitated for active service ” and recommended that “he be wholly retired from the service with one year’s pay and allowance.”

Upon the report of the board the President had the right to adopt one of three courses with the claimant; he could disapprove the finding and thereby retain the claimant in the active service, retire him from active service, or wholly retire him from the Army, as he might determine. He had a power to exercise in the disposition of the report, and his action thereon, made in law, the'complete exercise of the full measure of authority provided by the statute. It is not a continuing power, but is performed to the extent of its existence by the one act of the President.

“ As a general rule where the law confers a power, and the person on whom it is conferred acts under it, the power is exhausted, unless the same authority authorizes its subsequent exercise. (The People v. Town of Waynesville, 88 Ill., 470.)
“ Whenever a naked power is given to a public officer to do a single particular act in a single defined case, it may be laid down as an axiomatic rule that when the act is once done the power is exhausted.” Runkle's Case (ante).

As was said by the court in ex parte Randolph (2 Brocken-brough, 473, 474):

“ I take it to be a sound principle, that when a special tribunal is created, with limited power, a,nd a particular jurisdiction, that whenever the power is once executed, the j urisdiction is exhausted and at an end — that the person thus invested with power is, in the language of the law, functus officio.
*******
“ Examples might be indefinitely multiplied; these are sufficient to illustrate, that whenever a special jurisdiction has once executed the power with which it was invested, their power is at an end, as to the subject in relation to which it has been executed.”

The President having exercised the power given to him by section 1250 of the statute by “wholly retiring” the claimant from the service, his condition from the legal effect of that act, became that of a private citizen — he was then, as though, he had never been connected with the Army.

“ Officers of the kind are nominated by the President and confirmed by the Senate; and if the petitioner ceased to be such an officer when notified that his resignation had been accepted, it requires no argument to show that nothing could reinstate him in the office short of a new nomination and confirmation. Prior to the act of the 13th of July, 1866, the President could dismiss an officer in the military or naval service without the concurrence of the Senate, but he never could nominate and appoint one without the advice and consent of the Senate, as required by the Constitution.” [Dubarry's Case, 4 Op. Att’y Gen., 603; 14 Stat., 92; Mimmack v. United States, U. S. R., 437.)

But it is insisted that the President must of necessity have control of the record, in order to correct mistakes which he might have made in acting without being sufficiently advised, and thereby insure to parties affected, a guarantee that injustice will not be done by hasty and inconsiderate action.

Courts, or officers, whether acting judicially or in a mere ministerial capacity, so long as they retain jurisdiction of a subject-matter have complete control, within the purview of their power, to deal with it, as their discretion or duty may dictate; but when it passes beyond the line of official authority, either by the duty intrusted having been performed, or by the limitation of time, then the power ceases, and the mode of the execution becomes fixed and irrevocable in law.

It is a principle familiar to all, that a court once adjourned, ceases to have control of the substance of its decrees and judgments; and while matters of form may be corrected, matters of substance become crystallized into the force of judicial verity.

The finding of the board was placed before the President according to the requirements of the statute, the President approved it by wholly retiring the claimant from the service— not only that, but. months afterward he promoted William H. Heilman in qdace of claimant “retired” — and not only these acts, but on the 31st of December, 1863, he nominated Heilman first lieutenant in place of claimant “retired.” These acts following each other are no doubtful confirmation of the recommendation of the board, which in this case went further than the law required in the suggestion that the claimant be “ wholly retired.”

The retired list of the Army is regulated by positive law, being that form of just compensation, adopted by the policy of the government towards those, whose vigorous life is spent in the service of their country. Its regulation is necessarily very unlike the active branch of the service — one is power, the other is benefaction and gratitude. A code of written law may control one, but not the other.

It is therefore no degradation of the position of the President to say, through the forms of judicial construction in passing on his executive acts with reference to the retired list, that his power is regulated alone by acts of Congress. ' .

If the President has the right to change his approval into disapproval, when does the right cease? If it is incident to him because of his high office, and because of the very delicate and important functions inherent in him, as the head of the Army, those conditions continuing as they must indefinitely, his right is measured only by the life of the officer.

If the President has the right to revoke an order wholly retiring an officer, at any time and under all circumstances, then he must have the correlative right to change an order, putting a person on the retired list to that of “ wholly retired.”

The right to review his own action, if it exist, must be subject to reasonable limitations.

It cannot be the exercise of a power dependent alone, on the will of the President. If it does exist and is governed by reasonable rules of limitation, we think to permit a change of the order, after approval, and two distinct recognitions of such approval would be an unreasonable exercise of the right of review.

As to the power of the President in a case like the one at bar, we cite the following: Mimmack’s Case (10 C. Cls. R., 584; 97 U. S., 437); McElrath (12 C. Cls. R., 201, affirmed 102 U. S., 426); Blake’s Case (14 C. Cls. R., 462, affirmed 103 U. S., 227; 17 C. Cls. R., 344); Miller’s Case (ante); Montgomery’s Case (ante); Bennett’s Case (ante); Palen’s Case (ante); Runkle’s Case (ante).

The retired list is of comparatively recent origin; and for years the Army endured through peace and survived in war, efficient in the hands of the President for the maintenance of national honor, and the due enforcement of the law, without the existence of the retired list, so the regulation of that department of the service can in no wise interfere with the constitutional right and power of the President as commander-in-chief of the military forces of the United States.

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.

The department of the service called “retirement” is the creation of the statute, and he who claims right in it, must depend for the measure of his claim, on the terms of the law, and such reasonable construction, as may be justified by the intent and purpose of the legislature.

If injustice has been done the petitioner he must seek that forum which is controlled alone by the Constitution. Courts must apply law as they find it.

As to the counter-claim of the defendants we have said in the case of Miller (ante):

“We therefore hold for the purposes of this case, that he who through the official act of the President of the United States, occupies an office, under the government, is subjected to all the disqualifications of such office, performs all its duties, aud is paid the emoluments thereof, cannot be required to return those emoluments to the government, though the President’s act may have been in reality unlawful and void, and may after-wards be so adjudged by a court having jurisdiction of the question.”

In accordance with what we believe the law to be, as announced by the Supreme Court in similar cases, and following the precedent of cases decided at the present term, it is the judgment of the court, that the claim aud counter-claim, be dismissed.

Nott, J.,

dissenting:

Since the decisions in the cases of Miller,Montgomery, Palen, Bennett, aud Ruukle were rendered, the industry of our brother Scofield has brought to the attention of the court the Declaratory Act, 20th July,1808 (15 Stat. L., 125), and it is now thought by the majority of the court (Vanderslice’s Case, just decided) that that act has great significance in these cases, and that its declaration of what the law was is to be treated with the utmost respect.

I agree in the proposition and accept the test. If Congress have declared either in express terms or by necessary implication that the summary dismissal of an officer was irrevocable, let the judiciary accept that declaration of the law as the law, and apply it to antecedent as well as subsequent cases; for there were no vested rights to be disturbed by the statute, and Congress had absolute control of every office in the Army, and could abolish each at any time, or prescribe the conditions upon which it should be held. I agree also in the logic which finds a necessity for the principle having been declared one way or the other by Congress.

The subject of legislation being the power of the President to revoke his own orders dismissing officers from the Army, and the purpose of Congress being to declare the law, inquiry must be made as to what things Congress declared by prohib iting, and likewise as to what things Congress declared by permitting. Considered as a declaration — not as an enactment of new law, but as a declaration of existing law — the silence of Congress may have been as- expressive as the words of a statute. If Congress declared the law to be and to have been that the President who inadvertently dismissed an officer in time of war had no power to correct his own error, then the conclusion which I reached in Miller’s case fall’s; and, conversely, if the legislative power either expressly or by necessary implication declared the law to be otherwise by recognizing the usage of the Executive in such cases and permitting its continuance, and treating it as a kind of common law, and acknowledging the existence of the power as one inherent in the office of President, then it cannot be maintained that such a power can exist only by virtue of statute law, and the conclusion reached by the majority of the court falls.

. When this act 1868 was passed there were two methods by which an officer could be thrust out of the Army in time of war; the first was by the summary dismissal by the President, the second by the sentence of a court-martial followed by the confirmation of the President. Under the first method the officer had no hearing, no trial, no opportunity to explain, the circumstances or justify his action. Under the second he had the assistance of counsel, the right to cross-examine his accusers, the means for procuring evidence, the power to summon witnesses, the deliberate verdict of his follow officers, the review of the Judge-Advocate General, the final-consideration of the President himself. To the American mind, the first method belongs to an absolute monarchy and a mediaeval age; the second method is in substance a judicial investigation, securing to the accused that great safeguard of personal rights, the judgment of his peers.

That Congress should have attached to such a judgment the element of finality is not surprising, and that they should have declared such to have been the law is what probably every lawyer would anticipate; but that Congress should have declared the one method to be as final and conclusive as the other seems to my mind a doctrine which could never have been uttered even in the warmth and inadvertence of debate.

I have turned therefore with no little curiosity to the debates that I might ascertain something of the views of that Congress which framed and enacted this declaratory law, and this is what I find. (Cong. Globe, 2d sess. 40th Cong., part 1, p. 133.)

I find that the bill reported had received the unanimous approval of the Committee on Military Affairs; that it was reported and advocated and explained by James A. Garfield, then chairman of that committee; that it was not a declaratory bill when first considered by the House, and that it was referred back for the express purpose of making it such, and consequently that it received more than ordinary study and attention on that one point of what the law was which it should declare.

Passing to the debate, I find that General Paine, of Ohio, who had been a lawyer, a soldier, and a member of at least one of the important courts-martial of the civil war (Surgeon-General Hammond’s trial), asked the chairman of the Committee on Military Affairs this question:

“Where an officer is tried by court-martial under charges which could properly be punishable by dismissal from the Army and he is acquitted by the court, but the reviewing officer, disagreeing with the court and disapproving its findings, dismisses the officer from the Army, I would like to know whether the effect of this bill is to prevent the President from restoring that officer who has been dismissed from the Army under such circumstances ? ”

And the chairman of the Committee on Military Affairs answered :

“Not at all. By the act of July, 1862, the President of the United States was empowered summarily to' dismiss without trial. He granted that power to some subordinate commanders, and it was exercised to a very great extent during the war, so that hundreds of officers were dismissed by their commanding officers without trial. How that law has been repealed, and there is no power vested at this time [in time of peace] in any officer to dismiss a subordinate officer of the Army without the authority of a court-martial. In case a court-martial should find aman innocent, and the findings should be disapproved and the officer dismissed, that would be a summary dismissal, which is now [in time of peace] forbidden by law. But even though it were not forbidden by law, it would nevertheless be a summary dismissal and not such a dismissal as is contemplated in this bill, in accordance with the decision of a court-' martial.”

I find, further, that General Paine asked also this question:

“Would the effect of this bill be to prevent the President removing the disgrace following the sentence of the court-martian”

And again the chairman of the Committee on Military Affairs—

Not in the least. The President may declare, as is declared in orders now every day, that the findings of a certain court-martial are revoked and the officer honorably dismissed, the dismissal to date from the decision of the. court, two or four years ago. That merely takes off the stain. But what we propose in this bill is, however much he may do in removing the stain from an officer, by way of revoking the finding, that he shall not restore him to service without the consent of the Senate — ■ he shall not home power to thrust a man back into the Army who by regular, due course of judicial proceeding has been put out. That is all.”

I find also that Mr. Mungen, of Ohio, asked the following question:

“ Charges were preferred against him [an officer] by a subordinate officer, desirous, as I- suppose, of getting his place. Those charges were sent to the War Department in the summer of 1862, and he was summarily dismissed by order of the Secretary of War on the 3d day of July. He was never tried by court-martial, and I believe there, is no record on file which had the approval of the President. I wish to know if this bill would stop an application now pending to remove that stigma and permit him to have an honorable discharge?”

And the chairman answered:

“My colleague will see that this bill does not touch such a case at all. It is confined exclusively to cases wipere the officer was tried by general court-martial and the finding regularly and formally appeared dismissing him or cashiering him. It would not touch the case of an officer who was dismissed by summary process, and therefore the case to which the gentleman refers would not be in the slightest degree affected by it.”

And I find nothing more in the House debates upon that subject. Moreover it was after these declarations by the chairman of the committee that the bill was referred back to be made declaratory of the existing law. In other words, it was referred back by unanimous consent to be made declaratory of the law as declared then and there by the Committee on Military Affairs.

In the Senate there was no discussion of the bill itself, but there was just enough of inquiry and response to show that the Committee on Military Affairs understood the existing law and the pending measure precisely as they had been understood in the House.

Mr. Hendricks said:

u I should like to know from the committee reporting the bill whether there is an evil complained of in the Army in connection with this matter which justifies general legislation, .or whether this is intended to reach some particular case or cases. I had not heard of any evil of the sort that this bill would seem to meet and remove; but if it does exist, I should like to know from the chairman in what cases; what wrongs have been done that call for legislation in this direction; in what cases have officers been restored where it ought not to have been done. I know of some cases where they ought to be restored and they have not been restored.”

Mr. Wilson, chairman of the Committee on Military Affairs, replied:

It is not to meet any one case, but to meet any case that may arise. Several cases have arisen where persons have been court-martialed and dismissed the service and have been restored, some of whom certainly ought not to have been. I do not think the decision of a court-martial dismissing an officer from the service ought to be set aside on the partial representations that are made to the Executive. We know that the President cannot devote a great deal of time to the examination of cases of this character, and abuses have grown up under this power. Personal friends thus interested have interfered; and it is possible that in certain cases political friends have interfered to set aside the verdicts of court-martials. I think the military tribunals are entitled to their due iceight and consideration, and their judgment ought not to be set aside in this way unless on thorough examination.”

It is to be noted that when this debate occurred and this statute was enacted, the act 13 July, 1866, had recognized the power of the Oommander-in-Chief to dismiss an officer without a court-martial, and had left the xiower in him subject to the condition that it should be exercised only in time of war.

The sum and the substance of the whole matter is this: (1) The statute declares that the President has not power to restore an officer to his position in the Army if he was dismissed upon the conviction and sentence of a court-martial. (2) The statute leaves the usage of the President in reinstating officers summarily dismissed unimpaired. (3) The debates upon this declarative statute and the positive assurances of the military committees of both Houses acknowledge in the President an inherent discretionary power of revocation, with the right to annul the consequences of his summary orders of dismissal, and with a unanimous expression of opinion that the exercise of that power is authorized by law, and intrinsically just and right.

Where the law-making .power refuses to take away the discretion of the President, and regards its exercise as in furtherance of justice, I am of the opinion that the judiciary should not interfere with it.  