The true northerner. [volume] (Paw Paw, Mich.) 1855-1920, 1882-04-21
THE CASE OF FITZ.JOHN PORTER.

ThE CASE OF FIIZ.JOHN PO1kTEt.
The President Decides that Hc Has
No Power 90 Review the Sentence
Of the Court Martial.
wAauSoros. April II.
The President has notified Gen Fitz-John
Porter, in answer to his petition for relief from
the sentence OF the court-martial, that he can
do nothing in his case. as 1t is entirely beyond
bis power. This action Is based upon an opin-
ION by Attorney General Brewster, and received
the unanimous concurrence Of the Cabhiet.
The opinion OF the Attorney General, after
reviewing the history OF the court martial, the
approval of its sentence by the President aud
tho later action of the Advisory Board, consid-
ers The question whether IL IL competent for
the President to afford the applicant the relief
he asks under existing law and the circum-
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 court-martial dismiss
ing an officer, his act has all the solemnity and
significance of a judgment OF a court or law. AZ
il has TO be performed under the same conse-
quencos. Now, one Of the consequences is
that when Judgment has been regularly entered
In case properly within judicial cognizance,
from which no appeal has been provided or
taken, and 1t has been followed by execution,
IL is final and conclusive upon the party against
whom II Is entered. And this effect attaches,
in my opinion, to the action Of the President
In approving the action OF the court-martial
Diminishing an officer after that APP
prevail has been contaminated by act
ual dismissal Here 1t is proper TO
add that the very inquiry now under exam
nation has been resolved IN the negative by the
dahharafa dacisiOn al n former a ton
as appears by the message Of the President OF
June 8, 1879, transmitting to Congress the re-
port and proceedings Of the board of army Off
GERS upon the case Of Gen. Potter. The con-
clusien then reached was that the President was
without power, in the absence Of legislation, to
act upon the recommendation of the report fur
ther than submitting the same to Congress.
"This conclusion IL a 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 in that case, as recon-
mended by the board, and it is entitled to great
weight as being the view not only of the Pres
ident himself, but, presumably, that OF his
Cabinet, among whose members were men emil
nent in the profession OF law. These opinions
OF my predecessors and the Supreme Court all
60 to establish this proposition: that where
sentence of n legaly-oonstltu;ed court-mar-
rial, in case within its jurisdiction here has
been approved by the reviewing authority and
carried into execution. 1t cannot afterward,
under the present state OF the law be reversed
and set aside. The proceedings are. then,
ut an end, and action thus had upon the sent
ence is in the contemplation of the law. final.
i am unable to arrive at a different conclusion,
and l accordingly hold that III case under
consideration, the President has no power
TO reverse the proceedings of the court
martial and annul its sentence. 1t 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 armv
and disability to hold Office thereafter. The
dismissal Is 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 being executed.
The latter may be RENTED by exercise of the
hardening power, but the former cannot i'm any
way be affected thereby.
"Thus a pardon would not restore the ap-
pllcant to Office III 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 the rank OF
General officers are to be made by selection
from the army and all vacancies In established
regiments III corps to the rank OF Colonel are TO
be filled by promotion according to seniority,
except in cases Of disability or other inconl-
potency.
I" In this connection i remark that the act of
1000 reIerrea 10 Dy Sfen. fOrter In his letter OF
request was, as its title imports, only meant to
be declaratory of the law, namely: That an
officer cashiered or dismissed by sentence of
court-martlal cannot be otherwise restored to
military service than through new appointment,
with the consent of tho Senate. The law Ia
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 the absence Of special authority from Con-
gress 1t can only be exercised with respect to a
person who has ceased TO be an officer in the
manner above stated whore it might be equally
well exercised If such person had never been an
officer in the military service.
Upon the general question considered, the
conclusion arrived at is that il is not within the
competency Of the President to afford the APP
plicant the relief he has asked for that Is to
say that 1t Is not competent for the President
to annul and set aside the finding and sentence
OF the oourt-martial and nominate him 10 the
Senate for restoration TO his former rank in the
army. / am, cir, very respectfully
benz. HARRIS BREWSTER
Attorney General