when called into the actual service of the United States. " And why is this? Surely not because the President is supposed to be or commonly is in fact a military man, a man skilled in the art of war and qualified to marshal a host in the field of battle. No it is for quite a different reason; it is that whatever skillful soldier may lead our armies to victory against a foreign foe of may quell a domestic insurrection; however high he may raise his professional renown and whatever martial glory he may win still he is subject to the orders of the civil magistrate, and he and his army are always 'subordinate to the civil power. "
And hence it never the President (the civil magistrate) in the discharge of his constitutional duty to "take care that the laws be faithfully executed" has occasion to use the army to aid him in the performance of that duty he does not thereby lose his civil character and become a soldier subject to military law and liable to be tried by a court-martial any more than does a civil court lose its legal and pacific nature and become military and belligerent by calling out the power of the country to enforce its decrees. The civil magistrates whether judicial or executive must of necessity employ physical power to aid them in eforcing the laws whenever the laws whenever they have to deal with disobedient and refractory subjects; and their legal power and right to do so is unquestionable. The right of the courts to call out the whole power of the country to enforce their judgments is as old as the common law; and the right of the President to use force in the performance of his legal duties is not only inherent in his office but has been frequently recognized and aided by Congress. One striking example of this is the act of Congress of March 3, 1807 (2 Stat., 445), which empowered the President without the intervention of any court to use the marshal, and if he be insufficient to use the Army summarily to expel intruders and squatters upon the public lands. And that power has been frequently exercised without as far as I know a question of its legality. To call as is sometimes done the judiciary the civil power and the President the military power, seems to me at once a mistake of fact and an abuse of language.
While the judiciary and the President as departments of the General Government are co-ordinate, equal in dignity and power and equally trusted by the law in their respective spheres, there is nevertheless a marked diversity in the character of their functions and their modes of action. The judiciary is for the most part passive. It rarely if ever takes the initiative; it seldom or never begins an operation. Its great function is judgment, and in the exercise of that function it is confined almost exclusively to cases not selected by itself but made and submitted by others. The President on the contrary by the very nature of his office is active; he must often take the initiative; he must begin operations. His great function is execution for he is required by the Constitution (and he is the only department that is so required) to "take that the laws (all the laws) be faithfully executed; " and in the exercise of that function his duties are coextensive with the laws of the land.
Often he comes to the aid of the judiciary in the execution of its judgments; and this is only a part and a small part of his constitutional duty, to take care that the laws be faithfully executed. I say it is a small part of his duty because for every instance in which the President executes the judgment of a court there are a hundred instances in which he executes the law without the intervention of the judiciary and without referring at all to its functions.