CONGRESS, UNITED STATES. (Fixz-Joira POETEB'S CASE.) 



207 



Ward, Richard Warner. Wellborn, Weller, Wemple, 

 Wilkins, Williams. Willis, W. L. Wilson, E. B. Wi- 

 nans, G. D. Wise, Wolford, Wood, Woodward, Worth- 

 ington, Yaple, York, Young 184. 



NAY'S G. E. Adams, Anderson, Atkinson, Barr, 

 Bingham, Boutelle, Brainerd, Breitung, F. B. Brewer, 

 J. 11. Brewer, T. M. Browne, Brumm, Calkins, J. M. 

 Campbell, Cannon, Converse, W. W. Culbertson, 

 Cullen, Cutcheon, G. K. Davis, K. T. Davis, Dingley, 

 Dunham, Ellwood, I. N. Evans, Gotf, Guenther, 

 Hanback, Hart, H. H. Hatch, T. J. Henderson, Hep- 

 burn, Hiscock, Holmes, Hooper, Horr, Houk, John- 

 son. Keil'er, Lacey, Lawrence, McCoid, McCormick, 

 McKinley, Milliken, Morey, Morrill, Nelson, Nut- 

 ting, Parker, Payne, Payson, S. J. Peelle, Perkins, 

 Peters, Pettibone, Price, Keed, J. S. Kobinson, Row- 

 ell, Russell, Eyan, C. K. Skinner, Spooner, Steele, 

 Stephenson, Stone, Strait, Struble, E. B. Taylor, J. 

 D. Taylor, Thomas, Wadsworth, Wakefield, Wash- 

 burn, Weaver, Milo White, Whiting 77. 



NOT VOTING Aiken, Barksdale, Beltbrd, Bisbee, 

 Blackburn, Bowen, W. W. Browne, Budd, Burnes, 

 Felix Campbell, Chaee, Covington, Dibble, Dunn, 

 Eaton, Elliott, Ellis, Ermentrout, Everhart, Geddes, 

 George, Hammond, Hancock, Hardeman. Hardy, D. 

 B. Henderson, Hitt. Hoblitzell, Holton, Howey, J. H. 

 Jones, Kasson, Kelley, Kellogg, Ketcham, Libbey, 

 McComas, Mayo, Millard, S. if. Miller, Mills, Money 

 Mailer, Ochiltrce, Charles O'Neill, Paige. Randall, 

 G. W. Ray, Rice, Shelley, Talbott, Valentine, Wait, 

 A. J. Warner, J. D. White, James Wilson, John 

 Winans, J. S. Wise 58. 



In the Senate, the Committee on Military Af- 

 fairs reported the following substitute for the 

 House bill, February 26 : 



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 bis dismissal from the Army by sentence 

 of court-martial promulgated Jan. 27, 1863 ? and, in 

 his discretion, to place him on the retired list of the 

 Army as of that grade, the retired list being thereby 

 increased in number to that extent ; and all laws and 

 parts of laws in conflict herewith are suspended for 

 this purpose only: Provided, That said Fitz-John 

 Porter shall receive no pay, compensation, or allow- 

 ance whatsoever prior to his appointment under this 

 act. 



The measure was debated March 12 and 13, 

 and passed by the following vote: 



YEAS Bayard, Brown, Butler, Call. Cockrell, 

 Coke, Colquitt, Fair, Farley, Garland, Gibson, Gor- 

 man, Groome, Hampton, Harris. Hoar. Jackson, 

 Jonas, Jones of Florida, Jones of Nevada, Lamar, 

 McPhcrson, Maxey, Morgan, Pendleton, Pike, Pugh, 

 Riddleberger, Sabin, Saiilsbury, Sewell, Slater, Vance, 

 Voorhees, Walker, Williams 36. 



NAYS Aldrich, Allison, Blair, Bowen, Conger, 

 Cullom, Dawcs, Dolph, Edmunds, Frye, Harrison, 

 Hawley, Hill, Ingalls, Logan, McMillan, Manderson, 

 Miller of California, Mitchell, Morrill, Palmer, Platt, 

 Sherman, Van Wyck, Wilson 25. 



ABSENT Anthony, Beck, Camden, Cameron of 

 Pennsylvania, Cameron of Wisconsin, George, Hale, 

 Kenna, Lapham, Mahone, Miller of New York, Plumb, 

 Ransom, Sawyer, Vest 15. 



The Senate also adopted the preamble to the 

 House bill. March 7, the House non-concurred 

 in the Senate amendments ; and, June 18, a con- 

 ference committee reported in favor of reced- 

 ing from the non-concurrence, and agreeing to 



the measure as passed. This was done, and 

 the bill went to the President, who returned it, 

 July 2, with this veto message : 

 To the House of Representatives : 



After careful consideration of the bill entitled "An 

 act lor the relief of Fitz-John Porter," I herewith re- 

 turn 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 Por- 

 ter, late a major-general of the United States Volun- 

 teers, 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 t etc. 



It is apparent that should this bill become a law it 

 will create a new office, which can be filled by the ap- 

 pointment of the particular individual whom it speci- 

 fies, 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 par- 

 ticular 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 au- 

 thority of the Executive. As the Congress has no 

 power under the Constitution to nominate or appoint 

 an officer, and can not lawfully impose upon tho 

 President the duty of nominating or appointing to 

 office any particular individual of its own selection, 

 this bill, it 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 con- 

 victed 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 consci- 

 entious, 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 

 Drought in 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 consti- 

 tuted 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 



