National Republican. (Washington City (D.C.)) 1872-1888, 1886-02-13
RESTORING TO THE SERVICE.
TIE RIGHT AND WRONG WAY TO REIN
STATE OFFICERS.
An Exhaustive Statement of the Law
ana Precedents for Army and Navy
Gases 80 Ex-secretary Chandler Dis
cusses n Much Mooted Question.

From Advance Sheets of the United Service
Magazine for Februaryl
1t is undeniable that Congress and the
President, concurring in desire and appro-
pirate action, have the power to restore TO
the army or navy an officer who, from any
cause, has been dismissed or has resigned,
and whose place has been filled orabolished.
~ If the ex-oflicer is under any disability
to hold federal Office by reason OF sem
tence Of a court-martlal the President, by q
pardon, can remove the disability; Congress
cannot. (2) Congress and the President
can, by legislation, create new military or
naval Office, to be filed by any person or by
selection from any class Of persons. (3)
The President, with the consent of the Sen
ate, can appoint the ex.ofllcer to the new
Office, provided, If the appointment is lin
tied to class, he belongs thereto.
But the three steps in the supposed pro-
ceedings-pardoning legislating, appoint
ing-must be taken each separately and In
dependently of the others. Any comming-
ling Of the three, or of any two, is uncon-
stitutional.
An instance Of the right way is found in
the act OF Congress which follows; Here
is given the act Of March 3, 1885, to author
ize an additional appointment on the re-
tired list Of the army, which names no per-
son.1
Upon the passage Of the foregoing act
Ulysses S. Grant was appointed general Of
the army Of the United States, on the re-
tired list, in accordance with the strong de-
sire Of the Executive, Congress, and the
whole people. He had previously been APP
pointed lieutenant general and general
upon the passage of acts Of Congress, as
follows; Here are given the act revivlng
the grade of lieutenant general OF the
United States army, approved Feb. %,
1854, and the act to revive the grade of gem
eral in the United States army, approved
July 20, 1866, neither of which name any
individual.
The above three acts may, however, be
scrutinized in vain for directions to APP
point particular person, or for any un-
constitutional limitations upon the appoint
ing power.
An instance Of the wrong way may be
found in the following act: Here Is given
the act for the relief of William A. Ham
mond, late surgeon-general Of the army,
approved March Is, 1873, which authorized
court-martial findings and sentence to be
annulled and the accused to be restored to
1t may be confidently affirmed that the
foregoing statute and the action of the
President under it, in attempting to annul
and set aside final judicial judgment rem
dered fourteen years previous, and to make
DIR. Hammond, who had been only citizen
during that time, a surgeon-general in the
army, were unconstitutional proceedings.
Reasons for deciding that neither the
President nor Congress can annul or set
aside the final judicial judgment of a court
martial are given by Attorney General
Brewster in opinions of March Is, 1882, and
June 90, 1884, from which last opinion
are quoted extracts as follows: Here fol-
low the extracts and also extracts from
President Arthur's veto message of July 2,
1884,
Reasons for the opinion that an act of
Congress for the appointment to office Of II
particular person named in the act is I'M
constitutional are given by Attorney Gen
eral Brewster in his opinion Of June 23,
1884, as follows: Here are given extracts
from the opinion and also from President
Arthur's message of July 2, 1884.
Gen. Grant in q letter to FitZ-John Por-
ter, dated July 4, 1884, says Of the veto,
"This message is the merest sophistry."
This letter was given TO the public by Gen.
James Is. Fry in an article on Gen. Grant IN
the North american ReCielV for December,
1856, in which he says that when Grant
wrote the letter he was "a wreck financially
and physically.n Gen. Fry also says that
Porters claim that he had been wronged by
the courtmartial which convicted him was
laid before Grant as early as 1867, but the
appeal was refused or neglected, and that
Grant would do nothing as long as he was
"General-in.chief of the army and President
Of the United States, with power to act
effectively in redressing the alleged wrong;'
but that In September, 1881, Porter solicited
an interview, and Grant in letter Of Sept
"a wrote him that he would listen to his
case, and II convinced that he was wrong
in former opinions would be willing to cor
rect Them that Grant did study the whole
case from Sept. 81 until Dec. 10, and be-
came convinced that a great wrong had
been done, and gave Porter letter to that
effect, and also so wrote to Senator Logan
Dec 80, 1881.
Gen. Grant never undertook to demon
strate thatthe reasoning of the veto mes
sage was sophistical. The judgment OF the
dead general, even on a question OF con
stitutional law, should not be lightly con
demned but some consideration is due tc
patriotic and conscientious men who ART
living, and Gen. Grant, having during thu
eight years of his presidency refused to lister
to or act in Porter's case, should have been
more charitable than he was toward those
who preferred to remain Of the opinion con
corning Porter which he had entertained fol
eighteen years.
The circumstances under which Gen
Grant declared the message to be the meres
sophistry show that he was personally inter
csted In the question on which he gave hi
opinion. There was then pending in Con
gress bill as follows:
AN ACTto place Ulysses S. Grant, late genera
OF the army ofthe United States, upon the re
tired list of the army.
BE Il dacted, &C., That in recognition of thu
eminent public services OF Ulysses ). Grant
late general Of the army the President be, ap nc
and with the advice and consent of The senate
TO appoint him general on The retired list
the army. with the rank and full pay of gen
eTal OF the army.
This bill had been offered May Z, 1884, b,
Senator Edmunds, and had passed the Sen
ate May 10. A similar bill, on May IL, hat
been introduced in the House by Mr.. s. S
Cox, of New York, and referred to tn,
committee on military affairs. July 4, Gen
Grant expressed his opinion of the vetC
message.
The prior history of the Grant and Porte
restoration bills should be considered IL
this connection. A bill to appoint Gran
as general on the retired list was introduced
in the Senate by Senator Logan, Jan. 10
1881, and on the 21st reported in new
draft. On the Gath and 25th efforts wer
made to pass 1t, but were defeated, TIL
bill was offered in the House by Gen. Nc
Cook, on Dec. s, $780, and on Jan. IS, 1881
was reported adversely by the commits
on military affairs.
A bill restoring Fitz-John Porter passe,
the Senate Dec II, 1850, but was not actct
on In the House, where, on Jan. an,
March |, 1881, consideration was refused h
a similar House bill
This being the situation, Gen. Grant, II
Sept, 1881, at Porter's request commence,
an investigation of his case, concluded 1t il
December, and then announced his chang
Of an opinion which he had held and per
sisted in ever since 1862. This is not soph
istry nor charge, but fact. Every on
must draw his own conclusion.
There are not lacking, however, defender
Of the unconstitutional practices OF recen
years. Messrs John C. Bullitt, Joseph II
Choate, and Arson Maltby, counsel TO
Fitz-John Porter, in paper dated Oct. i
1854, review and reply TO the opinion Of Al
toIney General Brewster