The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1882-04-21
THE CASE OF FITz-JOHN PORTER.
The President Decides that He Has
No Power to Review the Sentence
of the Court Martial.

of the COurt-lTarfiaI.
WASHINGTON, April IL.
The President has notified Gen. Fitz-John
Porter, in answer to his petition for relief from
the sentence of the court martial, that he can
do nothing in his case, as it is entirely beyond
his power. This action is based upon an opin-
ion BY Attorney General Brewster, and received
the unanimous concurrence Of the Cabinet.
The opinion of the Attorney General, after
reviewing the history of the court the
approval of its sentence by the President and
tho later action of the Advisory Board. consid-
ers the question whether it is competent for
the President to afford the applicant the relief
he asks under existing law and the circum-
stances of his case. The Attorney General
after citing numbers of legal opinions and de-
cisions, says:
"When the President performs the duty of
approving sentence of a court-martial dismiss
ing an officer, bis act has all the solemnity and
significance Of judgment of court of law. as
it has to be performed under the same conse-
quences. Now, one of the consequences is
that when judgment has been regularly entered
In case properly within judicial cognizance.
from which no appeal has been provided or
taken, and it has been followed by execution.
it is final and conclusive upon the party against
whom it is entered. And this effect attaches.
IN my opinion, to the action of the President
in approving the action of the court-martial
dismissing an officer after that ap-
proval has been contaminated by act
ual dismissal. Here it is proper to
add that the very inquiry now under exam
nation has been resolved in the negative by the
deliberate decision OF former administration.
as appears by the message of the President of
June 5, 1879, transmitting to Congress the re-
port and proceedings of the board of army Off
GERS upon the case of Gen. Porter. The con-
cusion then reached was that the President was
without power, i'll the absence of legislation. to
act upon the recommendation of the report fur
ther than submitting the same to Congress-.
"This conclusion ls denial of the existence
OF any power in the President to review and to
annul and set aside the findings and sentence
of the court-martial in that case, as recon-
mended by the board, and it is entitled to GREAT
weight as being the view not only of the Pres
ldent himself, but, presumably, that of his
Cabinet, among whose members were men emf
nent i'll the profession of law. These opinions
of my predecessors and the Supreme Court all
go to establish this proposition; that where
sentence of legaly-constItu ed court-mar-
tial, III a case within its jurisdiction here, has
been approved by the reviewing authority and
carried into execution it cannot afterward.
under the present state of the law, be reversed
and set aside. The proceedings are. then.
at an end, and action thus had upon the sent
ence is. in the contemplation of the law. final.
am unable to arrive at a different conclusion,
and | accordingly hold that, in case under
consideration, the President has no power
to reverse the proceedings of the court
martial and annul its sentence, It fol.
lows from this view that the President
can afford the applicant no relief through re-
vision Of sentence in his case That sentence
inv m iaf
and disability to hold Office thereafter. The
dismissal is an accomplished fact, and SO far
the sentence is completely executed. The dis
ability is continuing punishment, and in re-
gard to that the sentence is being executed.
The latter may be RENTED by exercise of the
pardoning power, but the former cannot in an1
way be affected thereby.
"Thus pardon would not restore the an
pllcant to Office in the military service from,
which he was dismissed. This could only he
done by appointment under special authority
from Congress, since by the general law of tie
military service appointments to the rank of
General officers are to be made by selection
from the army, and all vacancies in established
regiments in corps to the rank of Colonel are to
be filled by promotion according to seniority.
except in cases of disability or other incon-
potency.
g In this connection remark that the act of
1868 referred to by Gen. Porter in his letter of
request was, as its title imports, only meant to
be declaratory Of the law, namely: That an
officer cashiered or dismissed by sentence of
court-martlal cannot be otherwise restored to
military service than through new appointment.
with the consent of the Senate The law ia
the same as to officers of the army
who cease to be such in any other way. Power
to appoint is not conferred by that statute.
inns power remains subject to general law, and
in the absence of special authority from Con-
gress it can only be exercised with respect to
person who has ceased to be an officer in the
manner above stated where it might be equally
well exercised If such person had never been an
officer in the military service
Upon the general question considered. the
conclusion arrived at is that it is not within the
competency of the President to afford the ap-
plcant the relief he has asked for; that is to
say that it is not competent for the President
to annul and set aside the finding and sentence
of the court-martial and nominate him to the
Senate for restoration to his former rank in the
army. am, sir, very respectfully,
BENZ. HARRIS BREWSTER
ATTORNEY Ganaro1