'As commander-in-chief the President is authorised to
give
orders to his subordinates, and the convening of a
court-martial is simply the giving of an order to certain
officers to assemble as a court, and, when so assembled, to
exercise certain powers conferred upon them by the articles
of war. If this power could not be exercised, it would be
impracticable, in the absence of an assignment of a general
officer to command the army, to administer military justice
in a considerable class of cases of officers and soldiers
not under the command of any department commander- as, for
example, a large proportion of the officers of the general
staff, and the whole body of the retired officers.'
* * * * * * * * * * *
It may be interesting to notice, as part of the
history of
this question, that the Senate of the United States, by a
resolution adopted February 7, 1885, directed its Committee
on the Judiciary to report, among other things, whether,
under existing law, an officer may be tried before a
court-martial appointed by the President in cases where the
commander of the accused officer to be tried is not the
accuser, and that the committee, after an examination of
the question, expressed its conclusions in the following
language:
'Under the present Constitution, when, for the first
time in
l806; Congress enacted a code on the subject, it changed
the imperative language of the articles of war existing
under the confederation, and simply provided that any
general officer commanding an army, etc. may appoint
general courts-martial, thus evidently intending to confer
an authority, and not to exclude the inherent power
residing in the President of the United States under the
Constitution. The substance of this provision has been in
force ever since, and from the formation of the Constitution
until the present time the committee is advised that the
President of the United States has, at all times, when in
his opinion it was expedient, constituted general
courts-martial.
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