Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1880-03-17
FITZ JOHN PORTER'S CASE.
Speech of Senator Carpenter in the Senate on
Saturday, the 9th inst.
A Clear an EOrcible Argument
Against the Bill From a
Legal Point of View.

relief of Fitz John Porter, and Mr.. Car
penter addressed the senate. He said:
A careful observer of the tendencies of our
time cannot fail to see that in every branch of
our government we are running towards consol-
idation and Capitalization of power, and that in
side of the government the tendency is equally
strong towards the Capitalization of power in
congress.
In illustration the senator remarked:
We have established by law and supported for
several years at 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-
erlng that neither the word agriculture, mining,
or manufacture occur in the constitution, nor
are they referred to, it is little curious to know
to what provision of the constitution this new
executive department is to be traced. This dis
regard for the constitution marks decadence
in our practice Of government. 1t leads to
dangerous encrOachment on the province of the
state. The constitution says all officers of the
United States shall be appointed by the presi
dent, by and with the consent of the senate
We pass laws directing men to be appointed in
the army. breaking the line of promotion. What
authority has congress to SO command the
president to appoint a man in the army any
more than in the COURTS or in any other civil
office? Nothing whatever but usage. Nothing
but the persistent, obstinate violation of the
executive power. The essential element of our
system of government is the distribution of the
powers In the three great branches of the gov
ernment,-the legislative, executive and judi
clal. Yet this very pending bill expects to
strike down this distinction. and to exercise a
judicial power by the two houses of congress-
Tho original bill proposes that the president
shall be authorized to set aside and annul the
Jupgment of the court rendered seventeen years
ago, and restore Fitz John Porter to the place
IN the army which he lost by that Judgment
Can any lawyer call that legislation an exercise
OF the Legislative power? Itwas proposed to set
the Judgment aside and restore Porter who has
been seventeen years private citizen, without
asking the senate yea or nay. He was not to be
confirmed on a denomination. but restored by
the act of the president annuling the sentence
OF the court that was to carry with it by logical
consequence all the pay he would have been en-
titled TO If he had not been removed, and had
other like effects. Now, it having been ascer-
tanned, | suppose, that it was pretty tough
job for congress to undertake, the MEM
Der of the committee who reported
the bill Randolph) has offered a
substitute authorizing the PRESIDENT name,
and by and with the advice of the senate to APP
polut, Porter colonel in the army, dating from
1868. In some respects this amendment is
worse than the original bill. That bill assumed
that congress could set aside the findings of the
court, and Its other provisions followed logically
from that assumption. This amendment does
not propose to pay the Judgment of the court
even the passing respect Of annullling it. 1t
proposes to leave it in full force. declaring Por-
ter should be dismissed and rendered incapable
of holding any office of trust, honor, or profit
under the United States thereafter. 1t leaves
that sentence in full force, and yet, in absolute
contempt of 1t, congress Is expected to provide
that the president may name and the senate
confirm this man to hold the Office of colonel.
If Porter can be named by the president and
nod
bill saying that it can be done? If he is eligible
at all, may not the president and senate exercise
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 trial 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 remarkable. Porter, hay
ing been private citizen for more than seven
teen years, cannot be subjected to the jurisdic-
ton of a cOurt-martial, even with his consent
The whole proceeding would be farce and
nudity. Congress has no more right to try Por-
ter to-day by court-murtial than it has to try
you Mr.. President, or me. The court-marlal
that tried Porter and drove him in disgrace
from the service was clothed with the ms iesty OF
the constitution and laws authorizing the az
miliStration of justice upon his military
service. Il was composed of men of emil
nence 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 perjury, and must atone for his Of
Tense in the penitentiary. What power had
three individuals that passed upon this subject,
as we are told, in review of the action of the
courtmartial? They had no power whatever
They could not send for a witness,-that is.
compel his attendance, could not subpoena.
G.IJ
they pretended to do it. I undertake to say if
they did they committed a crime. The admin
istraton of an extrajudicial oath-that is with
out lawful authority to administer it's crime
punishable at common law and by statutory law
everywhere. No man who told false story
there could not be indicted for perjury. The board
was not even court of inquiry; it was not
military proceeding. Pardoning is not the ex-
erclse of the military power; the president act
ing In his civil capacity as chief civil magistrate
OF the land, might pardon this man, and he
wanted to know whether he ought to pardon
him or not, and so he requests, he cannot order,
requests three individuals to advise him. Now.
hope those on the other side in this debate will
tell US what clause Of the constitution gave this
board any 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 as final as that
of the lord chancellor, and for the reason
that obtains III all courts, that where
there is no appeal authorized from the
tribunal authorized to hear the case it's
decision must be final.
The president can pardon Porter, continued
Mr.. Carpenter, and the pardon would wipe out
all consequences of the sentence. 1t would give
him the same legal standing he would have had
before he sentenced I am told Porter has
never applied for a pardon. 1 submit that IN
der the circumstances of this case Porter is not
at liberty to set his frown against the only pow
er that, under the constitution, can relieve him,
and ask US to exercise power the constitution
denies. Is it any humiliation for him tc apply
to that ultimate power which may still reach his
case, which is ample and copious, which "falls
like streams from rising springs" which may
reach his case and violate no principle of the
constitution? We cannot touch the case with
out violating our oaths to support the constitu-
ton, for the pa4doning power belonse to the
executive, and, no matter what it is called, the
annulment of this sentence would operate as
pardon.
In conclusion, Mr.. Carpenter said: