The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1880-03-19
FITZ JOHN PORTER'S CASE.


PhseA "ouhcpscu Vic cciidte. ne Bulu:
A careful observer Of the tendencies of our
time cannot fan to rec that In every branch Of
our government we are running towards cousol-
idation and Capitalization of power, and that in-
side OF the government the tendency is equally
strong towards the Capitalization Of power ia
congress.
In illustration the senator remarked:
We have established by law and supported for
'eyeral years ut The expense Of the people the
department OF agriculture, and it is now pro-
posed To establish department Of agriculture,
mines and mining and manufactures. ConSid-
erinS that neither the word agriculture, mining,
or manufacture occur III the constitution, uOr
are they reierrcd to, it IL little curious to know
To what provision OF the constitution this new
executive del artnent Is to De traced. This dis
regard for the constitution mark, decadencc
IN our practice Ut government. II leads tO
dangerous cncroachmeut OH the province of the
slate. The constitution says all officers OF the
United States shall lie appointed by the preri
dent, by and with tho consent Of the senate.
We pass laws directing men to be appointed ia
tho army, breaking the line of promouon. What
authority has congress to command the
president to appoint man in the army tiny
more than III the courts, or III any other civil
officer Nothing whatever but usage. Nothing
Iut the persistent, obstinate violation of the
constitution and cncloachment upon the
eystem Of government /, the distribution Of the
lpo"erS ia the three great branches of the gov
erInIent.--tlIe lcSi lauvc, executive and judi
clal. Yet this ye'y lending ILL expects u
strike down this di bnction. and to exercise q
Judicial power by the two houoes of congress.
Tho original ill plopo.e Cd that the president
shall lc authorized 10 ret q, ide and annu. the
jupoment of the court rendered seventeen year.
ago, and restore Fiiz John Porter to the place
III the amy which he lost by that JUDI H. ent
Can any lawyer call that legislation ali exercise
OF the Legislative power? was pro. 10 cd to ret
the Judgment aside ard restore Porter who has
Leen seventeen years private citizen, without
asking the scnite yea or nay. lie was not to lie
confirmed on q denomination, but restUle cd by
the act Of the president annuling the sentence
Of the court that was to carry with it Ivy logical
consequence all the pay he would have Leen ell
titled TO il he had not Leon removed, and had
o,her like effects. Now, il having Leen ascer-
Timed, l suppose, that it was q pretty tough
job for congress- to undertake, the mem
Der of the committee who reported
the Lii (Randol?h) has offered a
-ubstitute authorizing tho pre- identi name,
and by and with the advice of the senate to ap-
point, Porter colonel in the army, dating from
1868. In some respects this amendment il
worse than the original I'LL. That bill assumed
that congress- could set aside the findings of the
court and its other provisions followed logically
not propose to pay the Judgment Of the court
even the passing respect of annuilling it. it
proposes TO leave it in full force, declaring Por-
ter should be disni ,sed and rendered incapable
Of holding any Office of tru,t, honor, or profit
under the United States thereafter. 1t leaves
that sentence i'll full force, and yet, in absolute
contempt OF ii, congress Is expected to provide
that the president may name and the senate
confirm this man to hold the Office of colonel.
Ii Porter can be named by the president and
confirmed, is there any occasion for passing the
bill saying that it can be done? II he is eli lie
at all, may not the president and senate exeici e
their constitutional power without the aid Of an
act OF congress!
The senator continued:
The amendment proposed by the senator
from Rhode Island (Burnside), which provides
for new tial by a court of thirteen officers,
having power, subject to approval by the presi-
dent, to confirm, mitigate or annul the former
sentence, is still more remarkables Porter, hay-
ing been private citizen for more than seven-
teen years, cannot be subjected to the juiisdic-
ton Of court-martial, even with his com enl.
The whole proceeding would be q farce and O
nudity. Congress has no more right 10 try Por-
ter to-day by court-mmtial than it has to try
you, MIR. President, or me. The court-martial
that tried Porter and drove him in disgrace
from the service was clothed with the majesty OF
the constitution and laws authorizing the aG-
miiistration of justice upon his military
service. 1t was composed Of men Of cn.i-
hence in their profession, authorized to call
witnesses from all points Of the United States,
TO send for persons and papers and administer
oaths, and any man who Swore falsely before it
committed lerjury, and must atone for his Of
feuoe in the penitentiary. What power had
three individuals that passed upon this subject,
as We are told, in review Of the action of the
cOurt-martial? They had no power whatever.
They could not send for O witness, that is,
compel his attendance, could not subpoena.
They could not administer nn oath. am tolo
they pretended to do it. l undertake to say if
they did they committed q crime. The adniiu-
i,tratiOn OF an cxtrajudicial oath-that is, with
out lawful authority to administer it's crime
punishable ut common law and by statutory law
everywhere. No man who told Il false story
there could not be indicted rperjury. The board
was not even q court of inquiry; it was not u
military proceeding. Pardoning Is not the ex-
ercise Of the military power; the president, act
ing in his civil capacity as chief civil mag ,trale
Of the land, might pardon this man, aid he
wanted to know whether nc ou,y Int to pardon
him or not and 70 he requests, he cannot order.
requests three Individuals to advise him. Now,
hope those on the other side in this debate will
teh us what clause Of the constitution gave tliS
board auy authority whatever.
The senator, after further argument IN
support of his position, said the decision
of courts martial is as final as that of
civil courts, just as the English ecclesi-
astical courts decision is rs final as that
of the lord chancellor, aud for the reason
that obtains III all courts, that where
there is no appeal authorized from the
tribunal authorized to hear the case its
decision must be final.
T., l., 4
Mr.. CARPENTER, and the pardon would wipe out
all Consequences Of the sentence. ltwould ri, L
him the same legal standing he would have had
before he was sentenced. I am told Porter has
never applied for pardon. submit that I'M
der the circumstances Of this case Porter is not
at liberty to ret his frown against the on'y pow
er that, under the constitution, can relic ,e him,
and ask liz to exercise u power the constitution
denies. Is it any humiliation for him to apply
to that ultimate power which may still reach his
case, which is ample and coIious, which "falls
like streams from rising Il rings," which may
reach his case and violate no principle Of the
constitution? We cannot touch the case with
out violating our oath' to support the constit'l-
ton, for the pardoning power belongs to tue
executive and, no matter what il is called, tho
annulmcnt of this sentence would operate Us q
pardon.
In conclusion, Mr.. Carpenter said:
] lad intcudod to review the testimony on the
question OF fact, Was Mr.. Porter guilty? There
are two reasons why l do not. In the first
place, think it wholly unnecessary, because, if
We have no constitutional power to pardon him,
or, what is the same thing, relieve him from
that Judgment in any form OF proceeding what
ever, it Is immatcrial TO Us whether he was
guilty or not. In the next place, that part of
the task has been performed by the senator
from Illinois TI.oganl much better than coull
do it. Now, have had no feeling against Fitz
InI sts.tsD ANNNt u-rfl N
year ut the Academy at West Point, and al
ways esteemed HIM a. = gentleman until tins
affair occurred. The testimony, which have
examined pretty fully, convnces me, not that
Fitz John Porter was disloyal to the Union, -
not that he meant that the south should
but he was devoted to Mcclellan. Nc.
Clcllan was the idol Of his heart and star of
his hope. He wanted to zee Mcclellan succeed
frst. He wanted to See our cause prosper, but
he wanted Mcclellan to lead US to victory. He
WAS the man to whom Porter was attached,
around whom oil the affections of his heart
seemed to have eiitwined themselves, and it was
bitter az death to him when Mcclellan was sup
planted in command and succeeded by man
Fer whom he seems TO have Lad great con-
tempt that was the fault and fall of Fitz John
Porter. 1t was an ambition. II not for himself
for his friend, Ike the ambition that drew Satan
down. That drew Porter down, and, SO far AZ
our power Is concerned, the analogy proceeds q
step further, for "when he fell, he fell like
Lucifer, never to rise again." Look 1T the facts
on which he was convicted, and I think the ties.
timony sustains the findings of the. court.
There was battle raging upon which the fate
of this nation might depend. Orders were
issued to him again and again which he
fatty disoleyed. When, finally, in oDedenct
to positive order to come and report
on the battle field to Pope in person, b,
did come, it was without one Of hi
brigades, and 10 tardily as to show no had nj
Why, Mr.. Pre- i,lent, ifc depended on tina,
battle. Not merely that of an individual, bu
the life of an army, the life Of q natiou, per
haps. If Porter should 60 down the avenu'
and kill man to-day he would be hanged. Lift