The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1884-07-03
Attorney Generals Opinion.

| W Will "<1btOAAOy 0OIr
eral Brewster submitted to the
President to day, in com pliance with
the latter's request, q long and care
fully prepared opinion upon the bill
for the restoration OF Fitz John
Porter to the army, in which he ex-
presses the opinion that the bill is
clearly unconstitutional. He says:
Whatever powers Congress has upon
I the subject, appointments in the
army must be derived from one
o. the following clauses of
the Constitution "That Congress
shall have power to declare war, :"
etc. "fo raise and support armies"
etc. Ito make rules for the govern
ment and regulation of land and
naval forces; to make all laws
which shall be necessary and proper
for carry ing into exe.uti. n the fore
G ling powers" etc.
Section s, Article 1 But snother
clause of the constitution declare
that the Presiden shall
nominate and by AMI with
the advice and consent of
the Senate appoint ambassadors, and
all other officers of the United
States, whose appointments are not
herein otherwise provided for, and
which shall he established by law,
etc.
Sec ion 2, Article 2: This Is a
power expressly given h President
by the came instrument which gives
Congress the powers above men
toned, namely: To make rules for
the government and regulation of
land forces, etc. From the foregoing
powers conferred upon Congress,
the power to designate by law a per.
son to fill military Office cannot be
implied, since this would be in
direct conflict with the power of ap-
pointment expressly given the Pres.
ident as above, regarding the bill as
imposing or attempting to impose
upon the President a duty to APP
point the person designated therein,
it Is without any support in the
Constitution. It is an assumption
Of implied power which is not based
on any expressed power and invades
the Presidents Constitutional right.
Congress has no right to enact as
law that which will be Intellectual.
1t cannot enact ADVISE or counsel. It
must make laws that are rules OF
action, not expression of will that
may or not be followed. Counsel
acts upon willing law, upon unwil-
ling also-(Blackstone's Common.
taries 40 II then this will be an
Injunction commanding the Press
idsnt to appoint, it is an usurpation
and If 1t be only counsel it
is without the essential element
of law and Congress can enact
nothing lut that which is to have
the full vigor and effect OF law. But
again, the bill is subject to obj ection
upon the ground that Congress
thereby In effect creates an office
only on the condition it is to be
asked by the particular individual
named. If this principle were
adopted generally 10 the creation of
offices 1t would obviously result In
constraining the appointing power
| to accept the condition imposed and
I'll offices with individuals desig.,
mated by Congress thus frustrating
the design OF the Constitution which
is that Officers mu,t be- alone selected
according to the judgment and will
| of the person and body in whom
the power of nomination, advice
and consent, aid appointment are
vested"
The President, this afternoon, re-
turned The Fitz John Portor bill &C
Congress with his objections. He
takes the same view as the Attor-
ney.General regarding the Hncon~
stitutionality of the bill, and say a.:
"There are other causes that deter
me from giving this bill the sane,
ton Of my approval. The judgment
of the court martial by which, more
than twenty since, General Filz-
John Porter was tried and con-
victed, was pronounced ny a tribunal
composed Of nine general officers of
distinguished character and ability.
Its investigat on Of the charges of
which it found the accused guilty
was thorough and conscientious, and
its findings and sentence in due
course Of law, approved by Abra>
ham Lincoln, then President Of the
United States. Its legal competency,
is jurisdiction of the accused, and
of the subjects of accusation, and
the substantial regularity, of all its
proceedings, are matters which
have never been brought in ques-
ton. Its Judgment therefore is
final, and conclusive in its charac-
ter. The Supreme Court of the
United States has recently declared
that court martial such as this
! was, isis the organism provided by
law and clothed with the duty of
administering justice in this class of
cases. Its judgments, when aps
proved rest on the same basis, and
are surrounded by the same COM
siderations which give conclusive
ness to the judgments OF other tri-
bunpls, including ss well the
lowest as the highest" It follows
accordingly that when a lawfully
constituted court martial has duly
declared its findings and its sen,
tence, and the same has been duly
approved, neither the President nor
Congress has any power to set
them aside. The existence of