VETO MESSAGE.

EXECUTIVE MANSION, _July 2, 1884_.

_To the House of Representatives:_

After careful consideration of the bill entitled "An act for the relief

of Fitz John Porter," I herewith return it with my objections to that

House of Congress in which it originated. Its enacting clause is in

terms following:

That the President be, and he is hereby, authorized to nominate and,

by and with the advice and consent of the Senate, to appoint Fitz John

Porter, late a major-general of the United States Volunteers and a

brevet brigadier-general and colonel of the Army, to the position of

colonel in the Army of the United States, of the same grade and rank

held by him at the time of his dismissal from the Army by sentence of

court-martial promulgated January 27, 1863. * * *

It is apparent that should this bill become a law it will create

a new office which can be filled by the appointment of the particular

individual whom it specifies, and can not be filled otherwise; or it

may be said with perhaps greater precision of statement that it will

create a new office upon condition that the particular person designated

shall be chosen to fill it. Such an act, as it seems to me, is either

unnecessary and ineffective or it involves an encroachment by the

legislative branch of the Government upon the authority of the

Executive. As the Congress has no power under the Constitution to

nominate or appoint an officer and can not lawfully impose upon the

President the duty of nominating or appointing to office any particular

individual of its own selection, this bill, if it can fairly be

construed as requiring the President to make the nomination and, by and

with the advice and consent of the Senate, the appointment which it

authorizes, is in manifest violation of the Constitution. If such be

not its just interpretation, it must be regarded as a mere enactment of

advice and counsel, which lacks in the very nature of things the force

of positive law and can serve no useful purpose upon the statute books.

There are other causes that deter me from giving this bill the sanction

of my approval. The judgment of the court-martial by which more than

twenty years since General Fitz John Porter was tried and convicted

was pronounced by a tribunal composed of nine general officers of

distinguished character and ability. Its investigation of the charges of

which it found the accused guilty was thorough and conscientious, and

its findings and sentence were in due course of law approved by Abraham

Lincoln, then President of the United States. Its legal competency, its

jurisdiction of the accused and of the subject of the accusation, and

the substantial regularity of all of its proceedings are matters which

have never been brought into question. Its judgment, therefore, is final

and conclusive in its character.

The Supreme Court of the United States has recently declared that a

court-martial such as this was is the organism provided by law and

clothed with the duty of administering justice in this class of cases.

Its judgments, when approved, rest on the same basis and are surrounded

by the same considerations which give conclusiveness to the judgments of

other legal tribunals, including as well the lowest as the highest. It

follows, accordingly, that when a lawfully constituted court-martial has

duly declared its findings and its sentence and the same have been duly

approved neither the President nor the Congress has any power to set

them aside. The existence of such power is not openly asserted, nor

perhaps is it necessarily implied, in the provisions of the bill which

is before me, but when its enacting clauses are read in the light of the

recitations of its preamble it will be seen that it seeks in effect the

practical annulment of the findings and the sentence of a competent

court-martial.

A conclusion at variance with these findings has been reached after

investigation by a board consisting of three officers of the Army. This

board was not created in pursuance of any statutory authority and was

powerless to compel the attendance of witnesses or to pronounce a

judgment which could have been lawfully enforced. The officers who

constituted it, in their report to the Secretary of War, dated March

19, 1879, state that in their opinion--

Justice requires * * * such action as may be necessary to annul and set

aside the findings and sentence of the court-martial in the case of

Major-General Fitz John Porter and to restore him to the positions of

which that sentence deprived him, such restoration to take effect from

the date of his dismissal from the service.

The provisions of the bill now under consideration are avowedly based

on the assumption that the findings of the court-martial have been

discovered to be erroneous; but it will be borne in mind that the

investigation which is claimed to have resulted in this discovery was

made many years after the events to which that evidence related and

under circumstances that made it impossible to reproduce the evidence

on which they were based.

It seems to me that the proposed legislation would establish a dangerous

precedent, calculated to imperil in no small measure the binding force

and effect of the judgments of the various tribunals established under

our Constitution and laws.

I have already, in the exercise of the pardoning power with which the

President is vested by the Constitution, remitted the continuing penalty

which had made it impossible for Fitz John Porter to hold any office of

trust or profit under the Government of the United States; but I am

unwilling to give my sanction to any legislation which shall practically

annul and set at naught the solemn and deliberate conclusions of the

tribunal by which he was convicted and of the President by whom its

findings were examined and approved.

A Compilation of the Messages and Papers of the Presidents. Volume 8, part 2: Chester A. Arthur · 第 458 / 623 题