The National tribune. [volume] (Washington, D.C.) 1877-1917, 1889-09-12
expiration of their service. The Assistant
Secretary goes on to say:

The word discharge" wherever u occurs In Tn
law has but one meaning SO far as the right 20
word 81 honorable +" or the word dishonorable' IL
has significance nor bearing on the actual claim
for pension, except to draw the line OF demarcation
from which 81 claim forpension may be considered
by the Commissioner OF Pensions or by the Secre-
tary of the Interior not upon the ground o serptce
but upon the basis exclusively OF dtsnbttttp incur
red in the line OF duty. But. IL may be said, III
you pension man who has been dishonorably
discharged, you ignore obliterRte those nigh
moral distinctions which should control the Depart
ment in determining the merits of claim to pen.
sion" To this answer, thRi claim to an original
invalid pension cannot be considered from fnorn
point of view, index to either soldiers
character the nature OF his service IT. therefore.
there be penalty inflicted on soldier by "a court
martial, on account OF Tin oPense he may nave COM
mitted, il must be q penalty imposed Tor an act
done in violation of the service alone. Therefore,
n court martial which has jurisdiction OF military
DfeRra only has no Jurisdiction of matters relating
Go pensions. In other words court martial cannot
adjudioate mans right 10 pension, inasrnuoh IL
claims. Such n claim, by its very nature, IL not
within tho jurisdiction of court martial: the
only penalties which may DO thus inflicted by
court martial are distinctly enumerated III section
BOG, Article I4XlII, Articles of War, to wit:
Section B96. Article LX1I1. THE legal punish
mcnt for soldiers by sentence OF court-martiai,
according TO the ofensc and the jurisdiction OF the
court under the law, are--death; confinement con-
finement bread and water diet; solitary con-
hnement: hard labor; ball md chain; forfeiture
ofpapand allowances; discharges from service ana
reprimauds; and. for non-commissioned officers,
reduction TO the ranks tRegister 1861 p oSoi ".
q. % 1871
A conrt-martial is therefore, incompetent to In
clude In it's Judgment and to nfot on soldier the
penalty of forfeiture of pension for an oGenso com
mitied In the service. The sentence OF court
martial. resulting from the trial of soldier, may
be a dfsh0norabo discharge" but 1t cannot work
a forfeiture of pension, inasmuch ms the elaln 10
pension, being based upon an alleged disaonW
caused by the service, IL not within the jurisdiction
OF court martial which tries offenses only, aud
not claims for pension IL appears that the pay due
may be CRshered and deprived OF all the rights,
privileges honors and emoluments nppertairang
to his rank in the service but the sentence oil tue
court cannot touch pengiondbe rights. maintain,
therefore, that F" dishonorable discharge" from
tho service resulting from u nourt-martia and In
hicted ms penalty, as II necessarily must be. on
account OF some alfonso against thp service, cannot
affect claim for invalid pension and, hence, can
not involve forfeiture OF right to pension.
He cites in support of this position the
following decision by Judge Advocate-Gen-
eral Holt, rendered in 1868:
'In the absence of any statutory provision
the subject IL s held not 10 be essential 10 enttIo
person TO a military pension that he should have
received honorable discharge IA soldier. The
pension Is granted account OF disability incurred
by the party in the line OF duty while in the mill
tary service, wholly irrespective of the oirniIm-
stances. whether honorable dishonorabis, under
which lac may subsequently, have become sopa-
rated from the army" tXLiIl, 1867
by no less authority than the Supreme Court
of the United States, which held:
l. A "dishonorable discharge is penalty which
can DO inflicted by only n court-mHrtia for
o0slse against tho regulations OF the military
service.
2. A court-martial has no Jurisdiction any
question involving either claim n right 10 pen
sion; and. therefore,
q The sentence Of conrt-martial. infiicting the
penalty Of "dishonorabC discharge" cannot
affect either n soldiers claim right To pom
sion for, when said penalty Is executed, sill the
thereby exhausted upon tbs soldier for tie o0sHae
| which lac may have committed.
The law being thus distinctly defined, the
Department of the Interior made its prsc-
tice conform accurntelyto IL. June 8, 1875,
| Secretary Delano ruled:-
"whie Il Is true tina, oashlerlnK involves dis.
honorable discharges from tho service. there Is
STATUTE Hrlfch, So terms. imposes upon dtGsonorabg
discharged soldier of ue late reoeiiona disability 10
receive q pension. provided he be disabled by dis
eass contracted wounds received while Ia the
line of duty aoldisr. The net OF July H. ls82.
| grants n pension to any officer of the army who.
| aiuoe March T. 1851 hAa been disabled while In the
service and Ia tc line 81 duty. Neither that act,
/ nor any subsequent act 81 Congress Rmendatory
| thereof. supplementary thereto. contains any
provision whatever dB srisSek pension Is denied 10
disabed soldier Of the ~ lssl because lac WAS
| iishonoFnbly discharged. The allowance and pay
| mcut OF pension 10 such soldier Is conditioned
| alone upon proof Of disability incurred ia the scrv-
] ice and line Of duty.
| Tho statutes ronferviug and regulating pen
slona passed since March T. 1851. absolutely al
lent ia regard the class of persons under consid-
Grafton, Descron forfeits the right 10 bounty, and
properly 30 " the law were silent, because
bounty Is n rfspard promised by the Government
for certain service under implied contract which
required of the soldier continuous serpios, until
the expiration of The term Of enlistment, and
dosrffoH IS violation OF Aur contract by the soil
der which justifca the Government ia withhold
iur the stipulated consideration Il pension how
ever. Ia part of the eqHTuct for service. IL II
payment Tor loss OF physical ability to a live
ihosd, determined solely by the degree Of da-
i ability. and not ia any sense. rnysHrd for good
conduct. Tie character OF the discharge whether
| honorable or dishoporable. udeHiiug good cor bad
| character, can have no bearing whatever the
nature aud extent Of the disability, which alotte
decides The right TO pension. This IL clear from
the languages Of tho hGt OF July H. isG2. follows
ANY onrT etc. "a ho has Dc en- disa BLEED by reRaog
~ Any wound received or disease contracted whils
| la the services 81 ihc United States shall
be placed upon hs list of invalid pension
eFr' etc. No reference 10 hia character IA "a soldier
10 the terms 81 his discharge is made, huI II L
the disability alone which rntities him 10 peusion.
This ruling, in entire harmony with the
pension theory Of the Government from it,
beginning, continued in force until Sept. 4
1875 when it was reversed by COMMISSIONS
Black, approved by Secretary of Interio
Lamar.
In reversing their ruling and reviving tn,
immemorial practice, Assistant Secretar,
Bussey holds, with the sanction of Secretar,
Noble, that neither Commissioner Black no
Secretary Lamar had the right to inject int.
law qualifying word which Congress ha,
failed 10 put there, and which there is ever,
evidence that it did not intend should b
put there
In fact, Commissioner Black himself, il
the Francis Kiernan case, laid down the sam
principle that Assistant Secretary Busse,
now asserts, when he said:
"Thc decision Of the court martial II eoneItasip,
| The court. having full iursdieion inflicted all ia
| punishment applied alt the penalty permitted b.
law, and exhausted the resources OF governments
| punishment for the otfenHe. IL Is contrary 10 IN
manifest principles of justice 10 twiee punish for tn
same otfsnse."
Gen. Bussey holds that to now depriv
Kaufman of his right to pension would b
/ to allow the Department TO enlarge the sen
, tence of the court-martial, and without a
, additional trial, to punish twice for th
, same ollense-a thing intolerable 10 all idea
r -. - Il.