St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1884-07-03
ARTHUR'S GREAT SHAME,
His Veto of the Bill Restoring
Fitz John Porter to the
Army List.
Aided by SEARCHED and Frilled Opin-
ion. from the Dude Attorney
General.
He Declares the Findings of a Court Martial
IrrevOcable, Notwithstanding His
Own Remission of Its Sentence.


The attorney Generals Opinion.
WASHINGTON, 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 toy
the army, in which he expresses an opinion
that the bill is clearly unconstitutional. Ee
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 to de-
clare war; etc, 'to raise and support
armies etc, 'to make rules for tie govern
ment and regulation of land and naval
forces TO make all laws which shah be nee
essary and proper for carrying into eIecu-
tion 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 \ 4 =, and
all other officers Of the United States, whose
appointments are not herein otherwise pro
yided 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-
ton of land f, .ces, etc. From the foregoing
powers conferred upon congress the power
to designate by law 4 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 or attempting to impose
upon the president duty to APP
point the person designated therein
it is without any support in the
constitution. 1t is an assumption Of implied
power which is not based upon any express
power, aud already invades the constitution
al rights of the president. Congress has no
right to enact as II law that which will be-
Intellectual. 1t cannot enact, advise or
counsel. 1t must make laws that are rules
of action, not expressions of will that may
or may not be followed. Counsel is q mat
ter of persuasion, law is a matter of lnjunc-
ton. Counsel acts upon willing law, upon
unwilling also" Blackstone's commenta-
ries, a. If, then, this bill he an injunction
commanding president TO appoint it is
an usurpatiOn If il hc only counsel 1t is
without the ial element Of law and con-
gross car act .uything but that which
is TO ha cor and effect of law. But
ana subject TO objection on the
congress thereby in effect ere
lice only upon condition that it is
nlled by the particular individual
named. II this principle were adopted gen
orally I'm the creation Of offices it would obvi-
ously result in the appointing power to ac-
cepJ the condition imposed, and fill the Off
ccs with iudiy - Is designated by congress,
thus Illustrating the design of the constitu-
ton, which is that officers must be alone Sc
lected according to the judgment and will
of the perso" body in whom the powers
of uomi' and consent, and ap-
poiutme