St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1884-07-03
ARTF4 4UR' S GREAT SHAME.
His Veto of the Bill Restoring
Fitz John Porter to the
Army List.
Aided by Starched and Frilled Opin-
ion from the Dude Attorney
General.
He Declares the Findings of Court Martial
IrrevOcable, Notwithstanding His
Own Remission fits Sentence.
The .l.loraeg aeneraps optnton.

The 4ftoryiey Generals Opinion.
WAsHNG.o ION, July 2,-Attorney General
Brewster submitted to the president to-day,
in compliance with the latter's request, a
long and carefully prepared opinion upon the
bill for the restoration of Fitz John Porter to
the army, in which he expresses an opinion
that the bill is clearly unconstitutional. He
says in part;
''Whatever powers congress has upon the
subject Of appointments in the army, it must
be derived from some one or more of the
following clauses in the constitution. THE
congress shall have power K < = to de-
clare war, etc, to raise and support
armies etc, 'to make rules for the govern
mcnt and regulation of land and naval
forces, 'to make all laws which shall be nee
essary and proper for carrying into execu-
tioH the foregoing powers etc. [Section s,
article /. But another clause in the consti-
tuition declares the president shall nominate
by and with the advice and consent of the
senate, to appoint ambassadors x K <, aud
all other officers of the United States, whose
appointments are not herein otherwise pro-
vided for, and which shall be established by
law, etc Section 2, article 2. This is a
power expressly given the president by
the same instrument which gives congress
the powers above mentioned, namely, TO
make rules for the government and regula-
tion Of land forces, etc From the foregoing
powers conferred upon congress the power
70 designate by law person to fill a military
Office cannot be implied, since this would be
in direct conflict with the power expressly
given the president as above. Regarding the
bill as imposing OF attempting to impose
upon the president duty to APP
point the person designated therein
it is without any support in the
constitution. IL is an assumption Of implied
power which is not based upon any express
power aud already inyades the constitutions
al rights of the president Congress has no
right to enact as a law that which will be
Intellectual 1t cannot euact, advise or
counsel. 1t must make laws that are rules
Of action not "eXprcssicus Of will that may
or may not be followed. Counsel is a mat
ter OF persuasion, law IS a matter of injunc-
tiou. Counsc acts upon willing law, upon
unwilling also.n Buckstone's commenta-
rites, II. IT, then, this bill be an injunction
commanding The president to appoint it is
an usurpation, and if it he only counsel it is
without the essential element of law and con-
grcss cannot enact anything bat that which
i= 10 have full vgOr and effect of law. But
again, the Oill is subject to objection on the
ground That congress thereby in effect ere
atcs an Office only upon condition chat it is
to be filed by the particular individual
named. If this principle were adopted gen
orally I'm the creation Of offices 10 would Gbv-
ousIy result in the appointing power tg ae-
cept the condition imposed, and dll the Otli-
ces with individuals designated by congress,
thus Illustrating the design Of the constitu-
son, which is that officers must be alone Sc
lectdd according to the judgment and will
Of the person aud body in whom the powers
of nomination, advice and consent, and ap-
pointment are vested"