Hand County press. (Miller, Dakota [S.D.]) 1882-1893, 1882-04-26
FI1z-JOHS P0R1ER.
An Adrerss peststow - His Petition yor
Resserafies ss.ths As~sy.

~ - hT"sSs
WARRINGTON, April II.
The President has notfned Gen Fi,vJobr
pe,,er IN .n.,-s. \. ~ ..,.,.,. -. -. -
w snswot ns peuuon ior renef from
tne sentence OF tne court t-martial, that he can
do nothing In hiS casa - Il Ia entirely bcvopd
his mower Tbs. sc,,n., r =. -, 49,,
-, 49,. - 81. "po', ~ opn-
ioh W Atofney oendfsf AreWster, ana received
the unanimous concurrence OF the Cabinet.
The opinion of tho 4tfrynev f,aner., .n.-
...,...,.. 4, -. y. a"e
..s .ne nn'e "a n sho court-maruai, inc
approval OF its senfencefby the President and
tho later action of the ksyieorv hoard oops;d-
ers The question sWhn1h "a = conpotsnf Tor
the Rresidcnt 70 A5fotd s. 5 applicant the relief
he asks under existing law and the circnm-
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 q court-martial dismiss-
ing an officer, his act has all the solemnity and
significance Of judgment Of q court OF law. as
II has to be performed under the same conse-
quencos. Now, one OF the consequences h
that when judgment has been regularly entered
in case properly within judicial cognizsnce.
from. which no appeal has been provided or
taken, and il has been followed by execution.
1t is final and conclusive upon the party against
whom 1t 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 an
proval has been cvnsummated by act.
usl dismissal Here 1t is proper 10
add that the very inquiry now under exam
ination has been resolved in the negative by The
deliberate decision of former administration.
as appears by the message of the President oi
June g. 1879, transmitting TO Conpress tbe re-
port and proceedings OF the board of army off,
GERS upon the case OF Gen. Porter. The con-
cl,wion then reached was that the President was
without power, in the absence of Legislation. n
act upon the Recommendation OF the renort fur.
tber than submitting the same To Congrsss
ms couciusioa Ia ueriaI on fba eyistanoa
OF any power IN the President to review s,,J ~
aunul and set aside the findinos ma sen,snoo
of the court-martisl In That case. as rccon,.
mended by the board, and il il entitled 10 Great
weight as being the view not only of tbe pres.
ident himself, but. presnmably that Of ~
Cabinet, among whose members were men emf
nent in the pre- fession OF law. These opInions
OF nv predecessors and the Supreme Conrt ali
20 TO establish this proposition. thai where
sentence OF a legally-conslitur ed court-mar-
tisl, in case within its Jurisdiction here. has
been approyed by the reyiewino autbor,t, a,,d
carried into execution. II cannot aftarwsrS a.iI
under the present state of the law. be reversed
and set aside. The proceedings are. then.
al an end, and action thus had mon the sent
ence is. in the contemplation of the law. final
am unable to arrive at different ooncusiun.
and accordingly hold that, in case under
consideration, the President has no power
to reverse the proceedings of the court-
msStial and annnl its sentence. IL fol-
lows from this view that the President
can afford the applicant no relief through re-
vision OF sentence in his case. That sentence
involved immediate dismissal from the army
and disability to hold cfiice thereafter. The
dismissal il an accomplished fact, and 80 far
the sentence is completely executed. The dis
ability is continuing punishment. and IN re-
gard TO that the sentence Is be'rs executed.
The latter m ~ be RENTED by exercise of the
pardoning power, but the former cannot in any
way be affected thereby.
Thus a pardon would not restore the ap-
phcant 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 general law Of the
military service appointments TO tho rank of
General officers are tC be made by selection