Democratic Sentinel, Volume 6, Number 13, Rensselaer, Jasper County, 28 April 1882 — THE CASE OF FITZ-JOHN PORTER. [ARTICLE]

THE CASE OF FITZ-JOHN PORTER.

The President Decide* that Be Bae No Power to Review the Sentence of the Court-Martial. Washington, April 17. The President has notified Gen. Fitz-John Porter, in answer to his petition for relief from the sentence of the court-martial, that he can do nothing in his case, as it is entirely beyond his power. This action is based upon an opinion by Attorney General Brewster, and received the unanimous concurrence of the Cabinet. The opinion of the Attorney General, after reviewing the history of the court-martial, the approval of its sentence by the President and the later action of the Advisory Board, considers the question whether it is competent for the President to afford the applicant the relief he asks under existing law and the circumstances of his cane. The Attorney General, after citing numbers of legal opinions and decisions, says: « When the President performs the duty of approving sentence of a court-martial dismissing an officer, his act has all the solemnity and significance of a judgment of a court of law, as it has to be performed under the same consequences. Now, one of the consequences is that when judgment has been regularly entered in a case properly within judicial cognizance, from which no appeal has been provided or taken, and it has been followed by execution, it is final and conclusive upon the party against whom it is entered. And this effect attaches, in my opinion, to the action of the President in approving the action of the court-martial dismissing an officer after that approval has been consummated by actual dismissal. Here it is proper to add that the very inquiry now under examination has been resolved in the negative by the deliberate decision of a former administration, as appears by the message of the President of June 5, 1879, transmitting to Congress the report and proceedings of the board of army officers upon the case of Gen. Poiter. The conclusion then reached was that the President was without power, in the absence of legislation, to act upon the recommendation of the report further than submitting the same to Congress. , “This conclusion is a denial of the existence of any power in the President to review and to annul and set aside the findings and sentence of the court-martial in that case, as recommended by the board, and it is entitled to great weight as being the view pot only of the President himself, but, presumably, that of his Cabinet, among whose members were men eminent in the profession of law. These opinions of my predecessors and the Supreme Court all go to establish this proposition: tuat where sentence of a legally-constitu ed court-mar-tial, in a case within its jurisdiction here, has been approved by the reviewing authority and carried into execution, it cannot afterward, under the present state of the law, be reversed and set aside. The proceedings are, then, at an end, and action thus hiu? upon the sentence is, in the contemplation of - the law, final. I am unabje to arrive at a different conclusion, and I accordingly hold that, in case under consideration; ■' the President has no power to reverse the proceedings of the courtmartial and annul its " sentence. It follows from this view that the President can afford the applicant no relief through . revision of sentence in his case. That sentence involved immediate dismissal from lhe army and disability to hold office thereafter. The dismissal is an accomplished Tact, and so far the sentence is completely executed. The disability is a continuing punishment, and in regard to that the sentence is being executed. The latter may be remitted by exercise of the, pardoning power, but the former cannot in any way be affected thereby. “ Thus a pardon would not restore the applicant to office in the military service from which he was dismissed. This could only be done by appointment under special authority from Congress, since by the general law of the military service appointments to the rank of General officers are to be made by selection from the army, and all vacancies in established regiments in corps to the rank of Colonel are to be filled by promotion according to seniority, except in cases of disability or other incompetency. “ In’this connect*! A I remark that the act of 1868 referred to by Gen. Porter in his letter of request was, as its title imports, only meant to be declaratory of the law, namely: That an officer cashiered or dismissed by sentence of court-martial cannot be otherwise restored to military service than through new appointment, with the consent of the Senate. The law is the same as to officers of the army who cease to be such in any other way. Power to appoint is not conferred by that statute. This power remains subject to general law, and in the absence of special authority from Congress it.can only be exercised with respect to a person who has ceased to be an officer in the manner above stated where it might be equally well exercised if such person had never been an officer in the military service. “Upon the general question considered, the conclusion arrived at is that it is not within the competency of the President to afford the applicant the relief he has asked for ; that is to say that it is not competent for tbe President to annul and set aside the finding and sentence of , the court-martial and nominate him to the Senate for restoration to his former rank in the army. I am, sir, very respect fully, “Benj. Harris Brewster, “ Attorney General ”