The daily gazette., 1880-03-09
SECOND r EDITION
.Geaeras Por rter's Case.

r y, RESTORATION - COURTS MARTIAL
NOT oMNIPoTENT OR OMNIsCIENT-
~ REVIEW OF THE TESTIMONY IN
'f vINDICA1IoN OF PoBTER.
.f- u WASHINGTON, March 8, 1880.
y Inc Senate to-day resumed the con-
sideration of the bill for the relief of
Fitz John Porter, and Mr.. Bay ard spoke,
advocating the adoption Of the Randolph
substitute, authorizing Porter's reap
p' intment as colonel Mr.. Bayard had
listened with pleasure to the argument
of, the Senator from Winconsin, (Mr.
Cwpenter), but he regretted to ste
careful, acute and able addresses, offer
ed by constitutional lawyer of emf
nence to his associates in this chamber,
wound up by the Disagreement at its
close of very poor. appeal to partisan
prejudice. 1t was an unworthy ending
Of brilliant address. If there can be a
case in which partisan prejudice should
be still, surely this is the case. The
theme before the American people is
public Justice, 1t Is what is due, not
simply to the individual Immediately
affected by our. action, 1t is what is due
to the name Of public justice and to the
reputation of the American government.
Partisan feeling has no just place in such
discussion and cannot be introduced
without great injury TO the person intro
dncing it. AS bas been fitly said, "The
face Of justice may be darkened by a
frown, but never dis6gured by sneer,"
nor, / may say, distorted by joke. A
republican President and his advisors
recommend this measure to the atten-
I Tim nf GTnnroco md this fan ohnnIA
divest the matter Of party Significance.
JURISDICTION OF COURTS MARTIAL.
Mr.. Bayard denied that the jurisdic-
| tion of courts martial was co-equal
with that of civil courts. Such doc
trine was repugnant to the supremacy
of civil over military authority. The
erection of military courts is cOnces-
sion to the necessity of war for the
prompt trial of men in bodies organic
ed q, as armies. Their jurisdiction is
strictly exceptional and never to be en-
larged by ,intendment, because the
laws of military rule are not in accord
with the principles of political liberty.
These courts are the creatures of Con-
gress, and can be revoked and govern
ed by Congress. But can Congress
invade prerogatives of a separate
branch of this government? Certainly
not. A fundamental distinction be-
tween military and civil courts is this:
| The civil court can at all times see
whether a court martial has broken
the law that created it or no; court
to or question the judgments Of civil
court. The civil court can interfere
with court martial to prevent its un-
lawful exercise Of jurisdiction. Chief
Justice Nelson, in the case of Selden
VS.. Johnson. stated that there are
many cases where actions haYe beer
taken against members of courts mar.
tial who have exceeded their authori
ty, and they have been arrested and
tried therefor. The decision of q
court martial acting within its proper
| jurisdiction is binding; but the ques
tion of law, whether they do proceed
correctly or not, is renewable by the
civil courts, whereas the reverse is not
the case. Military courts are created
and dispersed by the summary order
of single individual. When their
| Judgment has been approved by au-
thority they are at an end. Contrast
them with the permanent civil tribu-
mails, and how v vast is the difference
1t has been alleged that the President
had no constitutional power to sum-
mon the Board Of Review in the Por-
ter case, because the matter was ended
with the court martial, and could nev-
or be reviewed. Can it be that in a
civilized country gross, palpable ad-
mitted injustice can never be remedi-
ed? Can it be that the Judgment Of
courts martial, suddenly called amid
the passions of war, when justice
could not be heard in the roar of can
non, can never be changed, even if it
be found unjustP Must government,
founded to secure justice to all, refuse
justice to man who for seventeen
years has writhed under the agony of
an unjust sentence? This cannot be.
Mr.. Bayard then proceeded to argue
that the bill does not interfere with the
prerogatives of the Executive, and quot
ed precedents TO show that Congress
could and had reversed the action OF
courts martial, among them the cases OF
Surgeon General Hammond and Cap
tain George A. Ames. Continuing, he
said that in his judgment the Board of
Review was authorized under the stat
utes. There was no law putting limi
tation on the power of the President to
reopen case. 1t had been said that
only those who called the court and ap-
proved the sentence could review the
action. What was the result OF this ar
4 gumentp 1t brought us to a govern
ment of men, not of laws. Suppose
President Lincoln had died the next
day after the sentence was passed.
Some other President would have ap.
proved the sentence. Mr.. Bayard read
legal opinions TO the effect that the pow
er Of the Executive to establish rules
and regulations for the government oi
the army extended to examinations In.
to charges against officers of the army
The Board of Review in question was
called under the articles of war provid.
ing for such cases, by the President ir
his capacity as commander-in-chief oi
the army. A more convincing mass oi
testimony was never collated than thai
laid before Congress as the result of that
investigation, and even waiying the
question of irregularity in the construc
tion of the Board the moral force OF
their findings and recommendations re.
mained.
II COMPLETE REPUTATION.
Mr.. Bayard believed this testimony
established d complete refutation OF
the facts on which Porter was convict
ed. 1t showed that the movement OF