Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1882-04-17
Fits John Porter.

Decision to Gen Porter.
| FitS John Porter
WASHINGTON, April 15.-The opinion o.
the attorney general in the Fitz John Porter
case, after reviewing the history of the court
martial, the approval of its sentence by the
president, and the later action of the advisory
board, considers the question whether it is
competent for the president to afford the ap-
plicant the relief he asks, under the existing
law and circumstances of his case. The at
torney general, after citing number of legal
opinions and decisions, says:
When the president performs the duty OF
approving the sentence of court martial dis
missing an officer, his act has all the solemnity
and significance Of Judgment OF court OF
law, as it has to be performed under the same
consequences. Now, one of the consequences
] is that when Judgment has been regularly en-
tered, in case properly within judicial cog
nizance, from which no appeal has been pro-
vIded or taken, and 1t 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
| court martial dismissing an officer, after that
| approval has been contaminated by actual
| dismissal.
1 Here 1t Is proper 10 add that the very IN.
Quiry now under examination has been re-
| solved in the negative by deliberate decision
of a former administrator, as appears by
| message of the president of June 5, 1879, trans
hitting to congress the report and proceed
| ings of the board of army officers upon the
case of Gen. Porter. The conclusion then
reached was that the president was without
power, In the absence Of legislation, to act
upon the recommendations of the report, far
Their than by submitting the same to con-
gress." This conclusion denied the existence
of power in the president to review and to ian.
null and set aside the finding and sentence of
the court martial, in that case as recommend
ed by the board; and 1t Is entitled to great
weight as being the view, not only of the
president himself, but presumably that of his
cabinet, among whose members were men en-
inent in profession of law.
These opinions of my predecessors and 81.
preme court all go to establish this PROPOSE
ton: That where the sentence of Illegally
constituted court martial, in case within its
jurisdiction, has been approved by reviewing
authority, and carried into execution, 1t can
not afterwards, under the present state of law,
be revised and set aside. The proceedings are
then at an end, and the action thus had upon
the sentence is, in contemplation of law,
final.
am unable to arrive at different conclu-
sion, and accordingly hold, that in the case
under consideration, the president has no
power to review the proceedings of court
martial and annul the sentence.
1t follows from this view that the president
can afford the applicant no relief, through a
revision Of the sentence In his case. That
sentence involved immediate dismissal from
the army, and disability to hold Office there.
after. The dismissal is an accomplished fact,
and SO far the sentence is completely executed.
The disability Is continuing punishment,
and in regard to that the sentence Is being exc.
cuted. The latter may be RENTED by exer-
else of pardoning power, but the former can
not in onY way be affected thereby. Thus,
pardon would not restore the applicant to Of
fee in the military service from which he was
dismissed. This could only be done by ap- |
pointment, under special authority from |
congress, since by general law of the mill |
tary service, appointments to the rank of gen |
eral 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 filed by promotion, according to |
seniority, except in cases of disability or other
incompetency.
In this connection remark that the act of |
1853, referred to by Gen. Porter, in his letter |
of request, was, as its tite imports, only meant
to be declaratory OF law, namely: That an |
officer cashiered, or dismissed by sentence of |
W
restored to service than through new ap- |
pointment with 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 general law, and in |
absence of special authority from congress, it |
can only be exercised with respect to 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.
Upon the general question considered, 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 |
to say, that it is NOT competent for the presi- |
dent to annul and Set aside the finding and |
sentence of court martini, and nominate him |
to the senate for restoration to his former rank
In the army.
| am, Sir, very respectfully,
(Sigued) BENZ. HAMS BREWSTER,
Attorney General.
The opinion of the attorney general is &C. |
companied by the following letter from the
secretary Of war:
WAR DEPARTMENT,
WASHINGTON, April Is.
Sir-The president has had under consldera-
ton your letter of the 2Sd of Decem.
injustice of the sentence of court
martial under which, in 1868, you were, as an
officer OF the army dismissed from the service
of the United States, and forever disqualified
from holding any.offlce of trust or profit IN
der the government of the United States"
and refer to the report of the advisory board,
made In 1879, and ask the president, If con-
WINGED of the justice of the recommendation
of the advisory board, to annul and set aside
the finding and sentence of the court martial,
and to nominate you to the senate for restora-
ton to your rank in the army.
1t being admissible that before considering
the propriety of the action requested by you,
the question of power of the president in the
premises should be determined your letter
was by the president referred to the attorney
general for Investigation of the subject. By
direction of the president have to enclose to
you copy of the opinion of the attorney
general, and to inform you that the president
coneurs in the views therein expressed, and
consequently tina. compliance with the appli-
cation contained in your letter is not within
his authority. have the honor to be, very
respectfully your obedient servant,
(Signed,) ROBERT LINCOLN,
Secretary of War.
To Gen. F. j. Porter, New York.