civil rights incurred by deserters; the military relations of post traders, &c.1

These various statutes will hereafter be recurred to, construed, or otherwise considered under the appropriate heads.

A further class of enactments, authorizing or restricting the employment of the army for civil or quasi civil purposes, will be reserved for consideration in Part III of this treatise.

1. See Rev. Sts., Secs. 1202, 1203, 1228, 1229, 1230, 1256, 1320, 1326, 1359, 1360, 1361, 1644, 1658, 1659-1660, 1996–1998, 4824, 5306, 5313; and Acts of June 23, 1874, C. 244, s. 2; July 24, 1876, c. 226, s. 3; March 3, 1877, c. 102, s. 1; March 16, 1878, c. 37; May 11, 1880, c. 85, s. 4.

CHAPTER III.

ARMY REGULATIONS AND ORDERS.

ARMY REGULATIONS.

In passing from Articles of war to Army Regulations, we pass from the province of one department of the government to that of another-from legislative statutes to executive acts. The subject will be treated under the following heads: I. Regulations in general; II. Regulations for the Army; III. Principles governing regulations; IV. Special sets of Regulations.

I. REGULATIONS IN GENERAL.

Their Classification-Express Authority for Regulations. While all law is regulation in a greater or less degree, regulations proper, whether army regulations or other, are administrative rules or directions as contrasted with enactments. The word "regulation" or "regulations," (as also the allied term "rules,") is employed sometimes in the Constitution' as descriptive of statute law, and this use has proved confusing to the student. A similar designation occurs in certain, especially of the earlier, public Acts, but is not frequent. As a general practice, Congress, in framing a public law and enjoining therein the performance of public business or duty, while expressing such injunction in language more or less general, disposes of the details of the performance in one of three forms. It either goes on itself to prescribe specific rules for such performance; or it authorizes some public officer to make proper rules for the purpose; or it is entirely silent on the subject, prescribing no regulations itself and devolving no authority, in terms, upon any official. The rules of the first class are statutes: those of the second class regulations as distinguished from statutes, and bear

1. In Art. I, Sec. 4 § 1; Id., Sec. 8 § 11, 14; Art. 4, Sec. 3 § 2.

2. See McCall's case, as cited in note, post.

ing a relation to statutes similar to that which the latter bear to constitutional provisions. The first form is comparatively rare1, for the reason that the Legislature can seldom foresee all the details that may require to be regulated in the course of the execution of a statute. Of the second form the instances are frequent, and this is the form ordinarily adopted in enactments relating to complex subjects. Thus, by Sec. 161 of the Revised Statutes, the heads of the executive departments are authorized by Congress "to prescribe regulations not inconsistent with law" for the internal government of their departments, the conduct of the business, and the custody and use of the records and public property in their charge. So, in a multitude of minor but important statutes, Congress, in imposing or conferring some special charge or capacity, or in legislating generally upon some matter the particulars of which fall within the executive province, has specifically authorized or directed the proper executive officer-the President, or head of department, or, in some cases, inferior official-to make regulations for the proper discharging of the function, or the carrying out of the details of the subject.3 These regulations indeed, numerous and multifarious as they are, represent the exercise of a very considerable power on the part of our public functionaries, and serve a purpose in the

1. Conspicuous instances are found in the early Acts of March 23, 1792, C. II, S. 2; March 3, 1803, c. 37, s. 1; April 10, 1806, c. 25, s. 2; and J. R. 14 of July 23, 1846;—also in Act of April 29, 1864, c. 69, s. 1, (Sec. 4233, Rev. Sts.;) in Sec. 337, Rev. Sts., and in the recent Acts of March 3, 1879, c. 195, and Aug. 2, 1882, c. 374, and March 3, 1885, c. 354.

2. Boody v. U. S., 1 Wood. & Minot, 164; U. S. v. Webster, Daveis, 38.

3. See Rev. Sts., Secs. 219, 463, 465, 466, 1109, 1142, 1174, 1175, 1214, 1241, 1307, 1319, 1522, 1525, 1549, 1620, 1695, 1703, 1752, 1753, 1797, 1801, 1893, 1960, 1969, 2050, 2058, 2071, 2086, 2089, 2110, 2127, 2263, 2381, 2397, 2442, 2450, 2478, 2496, 2505, 2511, 2512, 2513, 2514, 2521, 2544, 2651, 2804, 2858, 2866, 2871, 2897, 2898, 2915, 2944, 2949, 2956, 2971, 2973, 2976, 2982, 2989, 2994, 2999, 3001, 3003, 3005, 3006, 3007, 3019, 3021, 3022, 3026, 3053, 3057, 3064, 3103, 3109, 3120, 3129, 3143, 3144, 3206, 3215, 3220, 3226, 3261, 3291, 3293, 3297, 3310, 3315, 3322, 3329, 3330, 3345, 3351, 3360, 3362, 3369, 3379, 3386, 3396, 3411, 3426, 3427, 3428, 3441, 3442, 3445. 3446, 3447, 3464, 3505, 3527, 3551, 3568, 3574, 3575, 3581, 3645, 3647, 3881, 3911, 3932, 4061, 4067, 4075, 4140, 4462, 4739, 4761, 4787, 4815, 4825, 4862, 5184. 5229, 5232, 5293, 5304, 5306, 5315, 5561, 5567, 5569; also Acts of March 13, 1874, c. 55, s. 6; May 16, 1874, c. 180; June 20, 1874, C. 344, s. 8; June 20, 18743 c. 346, s. 5; March 3, 1875, c. 128, s. 5, 7; March 3, 1875, c. 134, S. II,

efficient administration of our Government not readily or commonly appreciated.

Implied Authority-The Third Class of Regulations. But Congress is incapable of delegating any portion of the legislative power, and the giving, in a statute, of authority to an executive official, to make regulations for executing the same, is, in general, quite unnecessary and of no legal significance, and amounts to no more than an indication, on the part of Congress, of a purpose to leave the details of execution where in fact they properly belong, with a suggestion, sometimes, as to the particulars especially to be regulated. Thus, in the cases of a great majority of the statutes of the second class, an authority in the Executive to make regulations would legally have been implied without any express grant to that effect. So, there are many statutes of the third class-those in which Congress is silent as to the matter of the execution of the details-in which such an authority results by a legal implication from the terms or subject of the enactment, considered in connection with the inherent. function of the Executive. The Constitution devolves it upon the executive department to "take care that the laws be faithfully executed." In a case, therefore, of a law of which the

March 3, 1875, c. 136, s. 3; March 3, 1875, c. 156, s. 6; May 23, 1876, c. 104; Aug. 15, 1876, c. 289, s. 5; Aug. 15, 1876, c. 300, s. 1; J. R. 6, of March 3, 1877; Acts of April 10, 1878, c. 58; June 6, 1878, c. 156; June 2, 1879, c. 11, s. 3, 5, 6; June 16, 1880, c. 253, s. 4; June 19, 1882, c. 231; Aug. 3, 1882, c. 376; Aug 5, 1882, c. 392, s. 4; Aug. 5, 1882, c. 398; Jan. 16, 1883, c. 27, s. 1; March 3, 1885, c. 319 s. 6; and many other provisions of minor importance or more limited application. Repeated instances also occur in the statutes where, though the word "regulations" is not employed, the same meaning is conveyed by some equivalent term or expression;-as by the term "directions,' "instructions," "forms," "requirements." "restrictions," "conditions," "limitations," "by-laws. Not unfrequently a thing is required by the statute to be done in such manner, &c., as a head of a Department, &c., "may prescribe." The "Revised Regulations for the Government of the Revenue Marine of the United States," a pamphlet of some 70 pages of rules and forms, issued by the Secretary of the Treasury in Aug., 1871, and resting on no authority more express than is found in the terms of Secs. 2758 and 2762 placing this corps (of about one thousand members) under the general direction of the Secretary, is a striking illustration of the discretion exercised by heads of Departments in making regulations as to matters of detail.

The point may be noted here that regulations duly framed under a statute may sometimes well be referred to as a practical interpretation of the statute itself. See U. S. v. Cottingham, 1 Rob. (Va.) 635.

execution requires to be specifically methodized, it is the duty of that department, and it is authorized, in the absence of any express authority for the purpose, to prescribe the rules or directions necessary and proper to effectuate the object of the statute;1 care of course being taken that the regulations shall not partake of the nature of legislation. This inherent authority of the Executive-the President, or head of a Department acting for and representing him-has been repeatedly noticed and affirmed by the authorities.2

II. REGULATIONS FOR THE ARMY.

Their Original Source and Authority. The authority for army regulations proper is to be sought-primarily—in the distinctive functions of the President as Commander-in-chief and as Executive.3 His function as Commander-in-chief authorizes him to issue, personally or through his military subordinates,* such orders and directions as are necessary and proper to ensure order and discipline in the army. His function as Executive empowers him, personally or through the Secretary of War,s to

1. A very recent instance of Army regulations instituted for the purpose of executing the intent of a statute in which no authority for regulations is conveyed in terms, is that of the regulations published in G. O. 55 of 1885, for effectuating the provisions of the Act of Feb. 14, 1885, entitling enlisted men to be placed upon the retired list.

2. "Of course Congress cannot constitutionally delegate to the President legislative powers; but it may, in conferring powers constitutionally exercisable by him, prescribe, or omit prescribing, special rules of their administration, or may specially authorize him to make the rules. When Congress neither prescribes them, nor expressly authorizes him to make them, he has the authority, inherent in the powers conferred, of making regulations necessarily incidental to their exercise, and of choosing between legitimate alternative modes of their exercise." McCall's Case, 2 Philad. 269. And see Wayman v. Southard, 10 Wheaton, 42, 43; U. S. v. Macdaniel, 7 Peters, 2; U. S. v. Bailey, 9 Id. 238; Lockington 2. Smith, I Peters, C. C. 471; Boody z. U. S., i W. & M. 164; In re Spangler, II Mich. 298; In re Griner, 16 Wis. 423; Antrim's Case, 5 Philad. 287 ; Allen v. Colby, 47 N. H. 544; Cooley, Prins. Const. Law, 44; I Opins. At. Gen., 478; II Id., 225, 243-5, 421; IV Id., 225, 227; VI Id., 365. 3. Compare DIGEST, p. 116, note 1.

4. That military commanders, in giving legal orders, represent the Commander-in-chief, the President, see Clark v. Dick, 1 Dillon, 8; Lockington's Case, Brightly, 289; O'Brien, 30.

5. That army regulations duly issued by the Secretary of War are in law the acts and regulations of the President as Executive or Commander