The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1882-04-17
STILL NO REDRESS.
THE CASE OF F'7z JOHN PORTER.
The Dsel.loa of Attsrns, General Brewster Bear
IsE eA The C1s.-IIs Gzprs.'s. the OpInIOs
that the Pr,,ldsat Has no Power
to Rsiis. General Porte.

WASHINGTON, April l6.-Thc opiniol
OF the Attorney General on the FitE Johl
Porter case, alter reviewing the history Q
the courtmartiai, theapproval Of It's sen
teRce by the President and later actiol
Of the Advisory Board, considers the ques
ton whether It 1t is competent for til,
President to afford the applicant the relic
he asks under the existing law and cir
cumstances 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 court mar.
tial dismissing an officer, his act has all
the solemnity and Significance Of the
judgement OF u 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 entered in q
case properly within judicial cogniz.
anCe, from which no appeal has been
provided or taken, and 1t has been
followed by execution, 1t 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 the Courtmartiai
Diminishing an officer, after that approval
has been Consummated by actual dis
missai. Here it Is proper to add that the
very inquiry now under examination has
been resolved in the negative by the de.
libefate decision OF former admiaistra.
ton, as appears by the message OF the
President OF June s, 1870, 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 President was "with.
out power in the absence OF legislation to
act upon the recommendations OF the re-
port further than by submitting the same
to Congress"
This conclusion is a denial OF the evil
dence OF any power in the President to
review and to "annut and set aside the
findings and sentence OF u conrt.martial. -
in that case MS recommended by the Board;
and it 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 eminent
in the profession OF law. These opinions
OF my predecessors and the Supreme Court
all 20 to establish this proposition: that
where the sentence Of legally constituted
court-martial in case where its jurisdic.
ton has been approved bya reviewing
authority, and carried into execution, il
can not afterwards, Under the present state
Of the law, be revised and set aside. The
proceedings are then at an end, and action
thus had Upon sentence is, In contempta.
ten Of the law, final.
am unable to arrive at a different con.
clHsion, and l accordingly hold that in the
case under consideration the President has
no power TO review the proceedings OF the
Court martial and annul its8entence. II
follows from this view that the President
can afford the applicant no relief through
revision OF sentence in this case. That
sentence involved immediate dismissal
from the army and disability 10 hold office
thereafter. The dismissal is an accomplish.
ed fact, and so far the sentence is com.
pletely executed; the disability is contin.
uing punishment, and in regard to that
the sentence is being executed the latter
may be remitted by the exercise of the
pardOning power, but the former can not
in any way he affected thereby. Thus a
pardon would not restore the applicant to
office in the Military service from which
be was dismissed.
This could only be done by appointment
under special authority from Congress,
since by the general law Of the military
service appointments 10 the rank OF gen.
eral officers are to be made by selection
from the army, and all vacancies in estab.
lished regiments and corps to the rank OF
Colonel are to be filed by promotion, ac-
cording to seniority, except in cases OF
disability or other incompetenCy.
In this connection remark that the act
OF 1868, referred TO by General Porter in
his letter Of request, was, as its title i'm.
ports, oply meant to be declaratory Of law,
namely; that an officer Cashiered or dis.
missed by the sentence OF court-martiai
can not be otherwise restored to the mill.
tary service than through q new appoint.
ment, with the consent OF the Senate.
The law is the same as 10 officers OF the
army who cease TO be such in any other
way. The power TO appoint is not con.
terred by the statute; this power remains
subject 10 the general law, and in absence
Of special authority from Congress, it can
only be exercised with respect 10 q person
who has ceased to be an officer in the man.
ner above stated, where it might equally
well be exercised II such person had never
been an officer in the military service.
Upon the general question considered,
the conclusion arrived at is that It is not
within the competency Of the President 10
afford the applicant the relief he has asked
for; that is 10 say, that it is not competent
10 the President TO annul and set aside the
finding and sentence Of the court martial
and nominate him to tho Senate for restor.
alton to his former rank in the army.
! am, sir, very respectfully,
BENJAMIN HARRIS BR9wsTER,
Attorney General.
The opinion Of the Attorney General Is
accompanied by the following letter from
the Secretary of War
WAX DErARTMENT,
WASHINGTON, April l5.
Sin: The President has had under con.
sideration your letter OF the 23d OF Decem.
Der, 1881, in which you allege an injustice
OF the sentence OF the 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 office OF trust or profit
under the Government Of the United
State" and refer to the report OF the Ad.
visory Board, made in 1870, and ask the
President, II convinced Of the Justice OF the
recommendation OF the Advisory Board, to
annul and set aside the finding and sen.
tence Of the court-martiaI, and to nominate
you to the Senate for restoration to your
rank in the army.
1t being advisable that before consider.
ing the propriety Of the action requested
by you the question OF the power OF the
President in the premises should be deter.