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Veto Message

July 02, 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.

CHESTER A. ARTHUR

Chester A. Arthur, Veto Message Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/204533

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