Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1882-05-04
GENERAL FITZ JOHN PORTER.
The Conclusion of Attorney General
Srewster's Opinion on the Case.

Brewster's Opinion on the Case
Attorney General Brewster's opiniop
IN the Fitz Tohn Porter case anaIyzing
the opinions of his predecessors IN Of
ace and that of the supreme court con-
+. cludes as follows:
"Ihese opinions OF my predecessors
and the supreme court, and also the
decision last above mentioned, all 90 to
establish this proposition: that where
the sentence of a legally-constituted
court-martial, in a case within its jul
rlSdlction, has been approved by the
reviewing authority and carried into
execution, it cannot afterwards, under
the present state of the law, be revised
and set aside. The proceedings are
there at an end, and the action thus
had upon the sentence is, in contem.
platiOn of the law, final. am unable
10 arrive at different conclusion, and
1 accordingly hold that in the case un-
der consideration the president has no
power to review the proceedings Of the
court-martial and annul its sentence
1t follows from this view that the
president can afford the applicant no re-
lief through revision of the sentence in
his case. That sentence involved i'm
mediate dismi sal from the army and
disability to hold Office thereafter.
The dismissal Is al accomplished fact
and so far the sentence is completely
executed; the disability is a continuing
punishment, and in regard to that the
sentence is being Executed. The latter
may be remittted by the exercise of the
pardoning power, but the former can
not in any way be affected thereby.
Thus a pardon would not re-
store the applicant to the office
in the military service from
which he was dismissed. lex
parte Garland, Wall, $780, This could
only be done by an appointment under
special authority from congress; since
by the general law of the military SER
vice appointments to the rank OF gea-
eral officers are to be made by selection
from the army, and all vacancies in es-
tablished regiments and corps to the
rank of colonel are to be filed by pro.
motion according to seniority, except
in cases of disability or other incompe-
tency. Gar. Reg. of 1881, arii 8; IA
Opinions Atty. Gen. 499) In this con-
nection remark that the act of
1868, referred to by Zen. Porter in his
letter of request, was, as its title i'm
ports, only meant to be declaratory of
the law that an officer cashiered or dis
missed by sentence of a court martial
cannot be otherwise restored to the
military service than through new
appointment with the consent of the
senate. The law is the same as to Of
fcers of the army who cease to be such
In any other way. Power to appoint
is not conferred by that statute. This
power remains subject to the general
law already adverted to and in absence
Of special authority from congress, it
can only be exercised with respect to a
person who has ceased to be an officer
in the manner above stated, where it
might equally well be exercised if such
person had never been an officer in the
military service"
Upon the general question consider
ed, the conclusion arrived at Is that it
is not within the competency of the
president to afford the applicant the
relief he has asked for; that is 20 say,
that 1t is not competent for the presi-
dent to annul and set aside the finding
and sentence of the cou,t-martial, and
to nominate him to the senate for res
toration to his former rank In the army.
Secretary Lincoln addressed a letter
to Gen. Porter. in which, after reciting
the circumstances of his application to
the president for relief, he says: "Your
letter was by the president referred to
the attorney general, for an investiga-
ton of that subject. BY direction of
the president, have to enclose to you
copy of the opinion of the attorney
general, dated March Is, 1882, and to
inform you that the president concur5
in the views therein expressed, and
consequently, that n compliance with
the application contained in your letter