Morning journal and courier., 1882-04-17

evidently studied up his chances of commit ment for conspiracy, and if arraigned vii be prepared to quote the Hallett-Kilbourne case to the house. The climax will probably be reached this week.
 Fitz John Porter's Case-The Presidents
 Inability to Interfere.
 WAsHINGToN, April 16.-The President has notified General Fitz John Porter, in answer to his petition for relief from the sentence ot the court martial, that he can do nothing ir the case as it is entirely beyond his power. This action is based upon an opinion by Attorney General Brewster, and received the unanimous concurrence of the Cabinet at its meeting Friday.
 After reviewing the case at great length, Attorney General Brewster goes on to say:
 The conclusion is the denial of the exist ence of any power in the President to review and to annul and set aside tkasindings and sentt nee of the court martial in that case, as 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 the law. These opinions of my predecessors and the Supreme Court, and also the decision last above mentioned all go to establish this pro- position, that where the sentence of legally constituted court martial in case within it's jurisdiction has been approved by the review ing authority and carried into execution, it cannot afterward, under the present state of the law be revised and set aside. The pro- ceedings are then at an end. and the action thus had upon the sentence is in contempla- tion of the law, final
 am unable to arrive at 8 different conclu- sion, and I accordingly hold that in the case under consideration the President has no power to review the proceedings of the court martial and annul it's sentence. It follows from this view that the President can afford the applicant no relief through a revision of the sentence in his case. That sentence in- volved immediate dismissal from the army and disability to hold office thereafter. The dismissal is an accomplished fact, and so far the sentence is completely executed the disability is a continuing 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 cannot in any way be affected thereby. Thus pardon would not restore the applicant to the office in the military ser vice from which he was dismissed. (Ex parte Garland, Wall, 333.) This could only be done by an appointment under spe- cial authority from Congress, since by the general law of the military service appoint ments to the rank of general officer are to be made by selection from the army, aud all va cancies 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 incompetency. Army regulations of 1881, article 6; 14, opinions Attorney General, 499) In this connection I remark that the act of 1858 referred to by General Porter in his letter of request, was as it's like imports only meant to be deciaratory of the law-namely, that an officer cashiered Or dismissed by sentence of court martial Cannot be otherwise restored to the military service than through a new appointment with the consent of the Senate. The law if the same as to officers of the army who cease to be such in any other way. (Mimmack vs United States 97, U. s. 427; Blake vs. Uni ted States 103, U. s. 237) Power to appoint is not conferred by that statute. This power remains subject to the general law already ad verted to, and in the absence of special au thority from Congress it can only be exer cised with respect to person who has ceased to be an officer in the manner 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 to afford the applicant the relief he has asked for that is to say, that it is not competent to the Presi dent to annul and set aside the finding and sentence of the court martial and to nomi nate him to the Senate for restoration to his former renk in the army.
 The opinion of the Attorney General is ac companied by the following letter from the Secretary of War: