National Republican. (Washington City (D.C.)) 1872-1888, 1886-02-13

" That the precedents, including three
cases under President Arthur, have made such
acts common practice, which constitutes the
law.
The limits Of an article in magazine
not legal, but military, do not admit OF a
full discussion Of the questions of constitu-
tional law now at Issue. But some sugges-
tions may not be out OF place or uninterest-
ing.
As Is conceded on the one side that
Congress has no general power to set aside
final judgments Of courts Of competent iur-
isdiction, so Il Is admitted on the other side
that where an officer, by final sentence Of a
court martial, has been dismissed from of
fee, but IL afterwards clearly appears that
he was innocent and his punishment unde-
served, reparatlon may be made, even TO the
extent Of creating new Office and appoint
ing thereto the eX-ofllcer. The dispute only
concerns the method Of making the repara-
ton. One party claims that It may be done
by law, which recites that its purpose Is
Ito annul and set aside the findings and
sentence Of the court-martial.n The other
party denies that Congress can constitution
ally do this. II IL can, then IL can interfere
at any stage Of the proceedings. Itcan leg
islate to prevent the trial OF an indicted
criminal before the verdict or Judgment; IL
can annul the verdict or judgment before
the sentence, and let the criminal 90 free;
after sentence IL can annul that and release
him from imprisonment and prevent his be-
ing hung, and It can, after he has served a
term OF imprisonment, annul the judgment
and thus release him from any continuing
disability, in these last two cases usurping
the pardoning power.
Reparation for any unjust Judgment may
and should be made, but II must be done
constitutionally. 10 effect It the legisla-
turc can neither annul the judgment nor
exercise the appointing power. II the
Judgment is for the payment OF money, the
legislature cannot destroy the sanctity Of
the Judgment, but II may release or return
the amount. The distinction may be tech
meal, but IL Is sound and important. The
bill was distinct assertion Of the power Of
the legislature to annul and set aside final
judgments Of courts Of last resort, and as
such II was an assault upon the judicial
branch Of the government which the EXecu-
tive was bound TO resist. II was not the ex-
tent Of the encroachment In this particular
case, but the assertion OF the principle,
which was dangerous, and was met and re-
PEELED. A bill In Congress to release, re-
NIT, or restore the amount recovered by the
government in final judgment In its favor
In the Supreme Court Of the United States
might become law; but imagine the propo-
sltion to take the shape of n bill In terms to
"annul and set aside the Judgment that
greatest Of tribunals would rise up In indig-
nation against 1t, and with reason and JUS
tce.
The learned counsel twice use the ex-
preston that the legislature may 'remit,
release, or annuln judgment In favor Of
the government. They should discrimi-
nate. The legislature may remit or release,
IL cannot annul.
The correct principle, in behalf of which
contention is now made, Is not an unim-
portant one. The founders Of the consti-
tuition believed in clear division-line be-
tween the three great branches of the gov
eminent. This principle is not expressed
In words in our briefest and most concise
Of national constitutions, but 1t permeates
its whole structure, and IL is asserted in
terms I'm nearly all the state constitutions.
A glance at these in Maj. Ben: Perley
Poore's useful compilation of "Charters
and Constitutions shows the form lin
which nearly all the states have declared
themselves.
In Alabama the provision Is as follows:
ARTICLE 2. DistiibUtioR Of PO,Cers.--SECTToN /.
The powers the government of the state OF
Alabama shall be divided into three distinct
departments, and each of them confded to q
separate body Of magstracy to Wit, those
executive toanother, and those which are ju
dici al 10 another.
sEc,t2. No person, or collection of persons
Icing OF one Of those departments shall eXer
the others, except in the instances hereinafter
| expressly directed or permitted.
According TO a cursory examination
seventeen states, from Maine to Texas
have adopted the foregoing provisions in
terms, and fourteen others have used SINH
lar language, including prohibltory clause
| Only one state seems to have thus declared
the division Of powers without adding til,
words Of affirmative prohibition.
New Hampshire's clause is !;
| J., ARTICLE 81. In the government Of this state
the three essential powers thereof, to wit, th
| legislative, executive and Judicial, ought TO b
| kept as separate from and Independent of eacl
other as the nature of q free government vii
| admit, or as is consistent with that chain o
connection that binds tho whole fabric of tn
constitution in one indissoluble bond OF uniol
| and amity.
The Massachusetts provision is:
ARTICLE 80. In the government of this com
monwe9lth the legislative department shal
| never exercise the executive and judicia
| powers, or either OF them; the executive shall
never exercise the legislative and judicia
powers, or either of them; the judicial shall
never exercise the legislative and executiy
powers, or either of them; to the end 1t may b
| government of laws and not of men.
The original proclamation Of this prin
ciple and It's reiteration over seventy time
in the various state constitutions from tim
to time adopted, may be seen in "Charter
and Constitutions"
|
ciple was by President Cleveland in his an
nual message to Congress of Dec. s, 1886
He says sour usefulness to the people
interests will be promoted by a constant ap
probation of the scope and character of GU
respective duties as they relate to fedora
legislation. u Contemplation Of til
grave and responsible functions assigned h
the respective branches Of the government
under the constitution will disclose tn
l Ntt nf hot tfty
departments and their respective indie
pendence." II is hardly to be believed
that President who has shown sagaciou
comprehension Of the powers of the govern
ment and also exhibited unusual firmnes
of character will approve an act Of the legis
lature which strikes blow at the indie
pendence Of the judicial and eXecutiv
branches of the government alike, by at
tempting to annul final judgment of tn
one and to practically coerce the appoint
ing power Of the other.
The duty of President, as part OF thu
law-makiDg power, TO prevent legislativ
usurpations of his own appointing power |
as clear us his obligation to resist congress
sional encroachments upon the courts. III
should veto any bill for the appointment h
federal office of q particular individual
named therein. To the argument that
such law only gives authority to appoint
and does not contain mandatory words
the President still retains his discretion
and therefore there is no interference wit
his prerogatlye, it may be replied that tn
effect Of such statute is compulsory.
the selection of the particular individual +
nominate, and, with the consent OF tn
Senate, TO appoint 10 an office is the sol
prerogative of the President, he is entitle
TO exercise 1t absolutely free from even tn
appearance of pressure or interference froI
the legislature, The word "mayn is ofte
construed as "shall,n and the word "au
thorlzed" as Corrected" The passage @
an act of legislation creating an Office t
which anamed individual, II any one, mus
be appointed, or authorizing the appoint
ment to n special Office Of that individual
is q legislative device for placing that pal
ticular person in office, and, in effect, is
coercion by the legislature of the appoint