The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1884-07-10
WASHINGTON
Tue w, DOM rofisr nlll tetssl ~
The President.
OPINION OF ArroHnEY.orNtRAL.
The House Passes the Mn over the
veto bS q N"ie ~ las ~ la-rhe
s1uthsTn Kansas iliEhi-1f-
NsJ-Oihrr Uusiasss,
EIII LOnN PORTER.
rmE rnEslnrNr YEInHs Tmr NM.

TliI rnIsluENf NEtuh~ TIN NIL.
wAsuINUToN, july =. The President
has vetoed the Fits John Porter hill,
1nE NTrOHNEN-ufNEHAL's orISIus,
.\ttnrnry-iienoral brewster suhnitied
Ia the President to-day, in compliance
with the lat,er's request, long AMI
carefully prepared opinion upon the hill
for the restoration of FitN John lOr-
ter Ia the army, In which he expresses
the OpininiOn the hill N clearly uncon'
stitutional, lie says In part, whatever
power Congress has upon the sub
icct Of appointment IN the army
must be derived from some clause Of
the constitution; that Congress shall
have power Ia declare war, etc, la raise
aud support armies, Ia make rules for
government and regulate land and
naval forces, To make all laws which
shall bo necessary anu proper
for carrying Into execution foreign
powers, etc., Section :, Article l., hut
another clause In the constitution de-
clarcs that the President shall noini-
nate, and by and with the advice and
consen, Of the Senate appoint nmhasss,
doris and all other officers OF
tho United States whose ap-
pointmonts are not herein other
wise provided for, and which
shall b6 established by law, etc. lScc.
:, Art. This power II expressly given
which gives Congress tho power above
mentioned, namely: To make rules
for the government and rcgula-
ton of land forces, etc. from
foreign powers; conferred upon
Congress power 10 designate by law
person 10 ill military office IL can
not hc implied since this would bc In
direct conflict with that power ot mp
pointmcnt expressly given the President
as above, regarding the ill ~
imposing or attempting 10 impose
upon the President duty TO appoint n
person designated therein. IL IN without
any support in the constitution. IL Is as
sumption of implied power which Is not
based upon any express powers ana
tionaf rights 81 the President.
Congress has no right 10 onac,
~ n law that which will be Intellectual.
cannot enact, advise or counsel. II must
make laws that are rules of action; not
expressions of will, that may or may not
he followed. Counsel Is matter of per-
suasion, law IL matter OF
injunction. Counsel acts upon
willing, law upon unwilling; also (lllack-
stones Commentaries, H. Then this bill
would be nm injunction commanding the
President to appoint it; nm usurpation--
and If II be only counsel il is with an es-
sential element of law, and Congress can
enact nothing but that which is to have
full vigor and effect of law; but again,
the bin is subject to objection upon the
ground that Congress thereby in effect
creates an Office only upon condition
that il is to he filled by particular in
dividual named. II this principle were
adopted generally in thecrestion of offices
it would obviously result In constituting
the appointing power 10 accept the con-
ditions imposed, and fill Offices with in
dividuals designated by Congress, thus
frustrating the design of the constitu-
ton, which is that officers must he alone
selected according to the judgment and
will OF tho person and body in whom the
power of nomination, advice and con-
sent of appointments are invested
TIE PRESIDENTS oBJE,TIoNs.
The President this afternoon returned
the FitZ John Porter bill to Congress
with his objections. He takes the same
view as the Attorney-Gencra regarding
the unconstitutionnlity of the bill and
says: "Thero are other causes
that deter me from giving
this bill my sanction or approval. The
Judgment of the courtmartial, by which,
more than twenty wears ago General
FitZ John Porter was tried and con-
viCtcd, was pronounced by Il tribunal
composed of nine general Off
GERS of distinguished character and
ability. Its investigation of the charges
of which ii found the accused guilty,
finding and sentence in the due course
of the law, was approved by Abra-
ham Lincoln, President of the
United States. It's legal compe-
tency, the jurisdiction of the accused
and of the subject OF accusation, the sub
stantial regularity of all of the proceed
ings are matters which have never been
brought in question. Its judgment,
therefore, is final, and conclusive
Court of the United States
has recently declared that such court
martial as this was is the organism pro-
vided by law and clothed with dutM',
administering justice in this class of
cases, Its judgments when APP
basis and are surrounded by
conclusive to the Judgment of other trib-
unals. including rs well the lowest as
the highest. 1t follows accordingly that
when
4 LAWFULLY CONSTITUTED COURT
MARTIAL
has duly declared its findings and
its sentence, and the same has been
duly approved, neither the President
nor Congress has any power to set them
not openly asserted, nor perhaps is it
necessarily implied in the provision of
the bill which is belore,me but when its
en8cting clauses are read i'll
the light of the recitals
of its preamble it will he
seen that it seeks in effect the practi-
cal annulment of the findings and sem
tence of the court-mnrtial. A con-
clusion at variance with these findings
has been reached after investigation by
the board, consisting of three Of
ticers of the army. This board
was not created in the purpose Of any
statutory authority, and was powerless
to compel the attendance of the wit
nesses or to pronounce Judgment which
could be lawfully enforced. The
1 their rcp %%e to Sop tSe Secretary
of War, dated March -, 1879, state
that in their opinion justice requires
srfch action as may be necessary to an
nul and set aside the findings and sem
tence of the court-martiul in the case
of Major-General l'itz John Porter, and
to restore him to the position which
the sentence deprived him OF,
from the date Of his dismissal from the
service. The provisions of the. bill now
underconsideratiQn areavoweatN. ~
/ BASED ON THE ASSUMPTION
that the charges before the
pending court martial have
been discovered to be erroneous, but it
will be borne i'm mind that the investi
cation, which is claimed TO
have resulted in this discovery,
was made many years after tho events
to which the finding hal relation, and
under circumstances that made it inn
possible to reproduce evidences upon
which they were based. 1t
seems to me that tho proposed
legislation would establish dangerous
precedent, calculated to imperil in no
small measure the binding force and