The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1882-04-19
FITZ JOHN PORTEE,
The PRESIDENT Holds That He Has no Power
20 Grant Relief, and That He MT,st Look
TO Congress for Special Legislation.

TO Congress for Special Legislation.
NAsfTEosSToN, April 15.-The President has mott
ned General Fitz joan Porter, in TO his
petition foz relief from the sentence OF the Court
Martial. that he can do nothing in the case AS il
is ercIely eeyond his power This action fvbased
upon the opinion by Attorney General Br ~gster
and received the unanimous concurrence Of the
Cabireti.
The opinion of the Attorney Geseral in thc-FTtz
John Porter case, after re-5ewing the history OF
the Court Martial, the approval of its sentenos by
the PresidentSnd the later action ef the Advisory
Board, considers the question whether it is ccrn-
ne relief ne s nndeT n me S aPPct @
cumstan seS of his case. The Attorney GenerIIl,
after citing numerous legal opinions and deCt
the duty of approving the sentence of
the Court Martial diSminsing en- officer
his act has ell the sOlemnlty and signifcance o..
! the iudgmentof a Court of law, as Il has to be
performed under The same consequences Now
one of the consequences is that when Judgment
has been regularly entered In case properly
within the judicial eogniZance from which no ap.
peal has been provided or taken. and 1t has been
followed by e1ecutSon it is final and Conclusive
upon the party against whom ii Is entsred and
this effect attaches, In ny opiDiOn, to
the action OF. tho. President in approx
dssmissing an osicer after that approval
has been consuInmated by actual dismissal.
Here Ii is proper toadd that the very inquiry now
under examination, las been resolved in the neg
atiye by the deliberate decision of former ad-
mlnistrati0n rs appears by the message of the
President of June 5; 1879. transmitting to Con-
Army Officers upon bhe case of General Porter.
The conclusion then reached was that tire Presi-
dent was without power in the absence otslegisla
ton to act upon. the recommendations OF
the report farther than by submitting
the same to Congress- This conclusion
sthe 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 i'm that
case ~ recommended by the Board, and it is. en-
titled 10 great weight as being the view not only
OF the President himselE but presumably that of
his Cabinet, among whose members were men
eminent in the profession of law. These opinions
of my predecessors AID Supreme Court all go to
establish this proposition: That where the sen
tence of legally constituted Court Martial, in a
case within its jurisdiction. kas been approved
by reviewing the authority aud carried into
execution, 1t can not afterward, under the pres
ent state of law be revised and set aside. The
thus had upon the sentence is, in the contempla-
ton of the law, final. unable to arrive at a
different conclusion, aud L accordingly hold that
in the case under consideration the President has
no power to review the proceedings of the Court
Martial and annul its sentence. IL follows from
this view that the President can afford the appli
cant no relief through revision of the sentence in
his case. as that sentence involved the immediate
dismissal from the Army ana disability TO hold
pllsked fact, and so far the sentence is completely
executed, and the disability Is n continuing pun
ishment aud in regard to that thessentenee is be
ing executed. The latter may be Iemitted by the
exercise of the pardOning power, but the former
can not in any way be sfected thereby. Thus
a nardon would not restore the applicant to
oliAcc III service lOr WHICH ne was
dismissed.
This coald only be done by appointment under
special authority irons Congress. since by the
general law OF military service appoint
ments % the rank OF general officers are to
be made by selection from the Army and all
vacancesin established regiments and corps TO
the rank of Colonel are 70 be filed by promotion
according 10 seniority, except in cases of dis
ability OF other Incompetence. In this eonnec-
ferred 70 by General Porter ia his letter
of request, was, its title imports,
duly meant to be declsratory of the law, namely.
that an officer cashiered OF dismissed by sentence
of Coue Martial can not be otherwise restored TO
military service thsn through a new appoin tment
with the consent of the Senate. The law is the
same a. TO officers of the Army who cease to be
such In any other way. The power TO appoint-a
not conferred by that statute. This power re
ma mains subject to general law. and
Congress It can only be exercised
with respect to the person who has ceased to be
sn ot3er in the manner above stated, where it
might equally well be exercised if such person
had never been an officer in the militia y Upon
the general question considered the conclusion
arrived at is that it is not within the competency
Of the President 10 afford the applicant the relief
he has asked for. That is to say, that IL is Dot
aside the finding and sentence ofthe Court Mar
tial and nominate him to the Senate for restorG-
ton to his former position in the Army:
The opinion OF the attorney General is accoDS=
panied by the following letter from the Secretary
of War:
WAR DEPARTMENT, WASHINGTON. April Is.
SsR--The President has had under consideration
your letter of he 23d of December, 1881 in whish
you allege injustice of the sentence of the
Court Martial under which, in 1863 you were
an officer of tire Army dismissed from the service
OF The United States and forever disqualified
from holding any Office of trust proht under
tae Government of the United States, and refer
to the report OF the Advisory Board made in 1879
and ask the p esdent if convinced of the justice
of the recommendation of the advisory, to aanul
and set aside the finding of the sentence of the
fourt Martial end to norainate yoa to the Senate
IOr restoration TO your fank In the Army, IL being
advisable that before considering the proprety OF
the action requested by YOU. the question Of the
power CT the President I'm the
premises SHOULD 'e determined. Your
letter was-by the President referred to the Attor
ney General Tor investigation OF the subject. By
direction OF ne Presid eut1 have to enclose to You
a copy of the opinion of, the Attorney General,
and 10 inform you that the President cSncurs in
the Fiews therein expressed. and, consequently
THAI compliance witl- the application contained
In YOUR letter is not sithiu HIS authority.
have the honor - be. very respectfully, yo1r
OF sGlent servant. RCsERT I. rEOoIS, d.
Secretary of WaE
Genera5F. J. Porter, New York.