Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1882-04-16
rne A,,orn.y.eererar, op,n,on.

| The opinion OF the attorney-general in the
| the Fitz John Porter case, after reviewing
| the h istory Of the court-ms rtial, the APP
prevail of its sentence by the president, and
Liter action Of the advisory board, con-
siders the question whether il is competent
! for the PresIdent 10 afford the apple ant the
relief he asks under the existing law and
| circumstances OF his case. The attorney
| general after citing numerous legal opinions
and decisions, says: When the president
performs the duty OF approving the sentence
| of a court. m artial in dismissiDg an officer
his act has all the solempity and Significance
of judgment of court OF law, as it has to
be performed under the same consequence.
Now, one of the eCnsf quences Is that when a
judgment has been regularly entered in a
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 at
tsches, in my opinion, to the action Of the
president in approving the action
OF the court martial in Diminishing
an officer after that approval has
been consummated by actual dis
missal. Here it is proper to add that the
very inquiry now under examination has
been resol we'd in the negative by the deliber-
ate decision of a former administration, as
appears by the message of the president of
June 5, 1879, transmitting to Congress the
report and proceedings of the board of army
officers upon the case of General Porter.
The conclusion then reached was that the
prt sident was without power, in the absence
of legislation, to act upon the recommends
tions of the report, further than by submit
ting the same to Congress. This conclusion
is denial of the existence of any power in
the president to review and to annui and set
aside the findings and sentence of the court
martial in that case, and is entitled to great
weight, "a being the view not only of the
president himself, but presumably that of his
cabinet, among whose members were men
eminent in the profession Of the law. These
opinions of my predecessors and the Supreme
Court, all go, to establish this proposition,
that where the sentence OF a legally
constituted court-martial in case
Hi4Li., i.s Jurisdiction h as been approved
by the reviewing authority and carried
into execution it cannot afterward under the
present state Of the law, be revised and set
aside. The proceedings are then at an end,
and the action thus had upon the sentence is,
in the contemplation of the law, final. am
unable to arrive at a different conclusion
and / accordingly hold that in the case under
consideration the president has no power TO
review the proceedings of court-martial
and annul its sentence. 1t follows from this
view that the president can afford the appli-
cant no relief through a revision of sentence.
diate dismissal from the army and disa-
bilify to hold Office thereafter. The dismiss
sal is an accomplished fact, and. so far the
sentence is completely executed; the disa-
bility is acUntinuing punishment and in re-
gard to that the sentence is being exc
cuted. The latter may be RENTED by
the executive power, but the former
Thus pardon would not restore the appli-
cant to- Office in the military service from
which he was dismissed. This could only
be done by appointment under special
authority from Congress, since by the gen.
eral law of the military service appoint
me nts to the rank OF general officers are to
be made by selection from the army, and all
vacancies in established regiments and corps
to the rank of colonel are to be filled by pro-
motion, according to seniority, except in
cases of disability or other incompeIency.
In this connection / remark that the act re-
ferred TO by General Porter in his letter of
request was, as its title imports, only meant
to b. declaratory of law, w.: that an officer
cashered or dismissed by sentences of a court
martial, cannot be otherwise restored to mill
tary service than through a new appoint
ment, with the consent of the Senate. The
law is 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; this power remains subject to
the general law, and in the absence of
special authority fir m Congress, it can only
be exercised with respect to the person who
has ceased to be an Cffioer in the manner
above stated, where it might equally ss well
be exercised if such person had never been
an officer in the military service. Upon the
general question considered the conclusion
arrived st is that it is not within the compe-
t-ncy of the President to afford the applicant
the relief he has asked for; that is to say TIL al
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. l am respectfully
BENJAMIN HARRIS BREWSTER
~ Ca