Evening star., 1895-10-10

entitled to receive T5 per centum of the pay
of such rank. and by section 1259 he may be
assigned to duty at the Soldiers Home:
upon selection by the commissioners of
that institution, approved by the Secretary
OF War; but shall not be assignable 10 any
other duty OF the 1851 regulations for
the army published in 1889 by the Secre-
tary of War, the only one that imposes Il
duty upon retired officer appears to be
No. S99 which provides that Every officer
OF the retired list will. unless specially ex-
empted, report his address monthly to the
adjutant gereral.'
1.-THE Constitution of the United States,
article 3 section =, clause l, constitutes
the President commander-in-chief of the
army and navy. Officers of the army on
the retired list are enumerated as an ele-
ment of the army of the United States by
section 1904 of the Revised Statutes of the
United States.
'It follozrs, therefore, that the President
Is commander-in-chiefo of the officers of the
army on the retired list. This function of
the chief executive, however. is unaccom-
panied by narrowing care or weighty re-
spons ibility, for while he may assign
very limited number to duty at the Sol
diers' Home. and. through the adjutans
generals Office, ascertain whether letired
officers make monthly report of their ad-
dress, it is beyond his power 20 assign
them to other duty because of the statu-
tory inhibition. His title of comma ader-in-
chief, SO far as it relates to them, as he is
sborn of all power to impose duties, ap-
pears to be an empty name
A Metaphysical Problem.
''The return claims that the President is
the commanding officer of the petitioner
because commander-in-chief of the army
and that Gen. Schofield on September %, as
acting secretary of war. was his organ and
representative in his capacity as Armes
commander-n-chief and commanding Off
Ger, that therefore, when this offending
letter, addressed to him as Gen. Schofield,
Il hy i'm in 0xyn ftice
he deemed that the offense specified in the
return was committed in his presence and
within his personal Knowledge as acting
secretary of war. Whether this metaphysi-
cal problem can be demonstrated and the
position assumed maintained need not lie
row determined. The legal representatives
OF the War Department disclaimed at the
hearing any attempt to derive authority
for the arrest and detention of the petition
er from article 81 of the articles of war,
which authorizes all officers to quell quar-
rels. trays and disorders, and to order Off
GERS into arrest, and ne relied solely upon
article u, which reads: Officers charged
with crime shall be arrested and confined
to their barracks, quarters or tents and de-
prived of their swords by the commanding
officer. Ard any officer who leaves his con-
finement before he is set at liberty by his
commanding officer shall be dismissed from
the service.
These two are the only articles of war
that relate to the arrest and confinement of
officers.
For the petitioner 1t Is asserted that no
charge of any kind was preferred against
him at the time of the arrest; that no charge
of crime has been made since then; that for
the offense embodied in the charges and
Specifications appended to the return no
arrest was necessary, and that the arrest
and confinement were unlawful and op-
pressive. In behalf of the custody of the
petitioner it is claimed that.an officer of the
army may be arrested and confined without
charge expressed or preferred in any form;
hn he he yea
with copy of the charges upon which he is
to De tried within eight days after he is ar
rested. and meantime he has no right to be
informed OF the occasion of arrest; that the
word crime used includes every offense,
however trivial, for which an officer may be
tried by court-martial; that inasmuch as a
IIeured officer is not in barracks. quarters or
tents he can be arrested and con-
fined in some quarters or tents in
the discretion of the officer ordering
the arrest; that This arrest was made for the
purpose of trial. and was essential as a
preliminary step to such trial
Arrest is Not Essential.
"It may be that where the penalty for the
offense chargsd-is' or may be imprisonment,
or death, that arrest is a requisite prelimi-
rary step, for the penalty deals with the
tody of the offender, but where the penalty
Is reprimand, fine, or dismissal from the
service. arrest and confinement would ap-
pear to be useless and non-essential. Gus
tcdy is not essential to trial by court-mar-
tial. Army regulation No. 1925 makes the
sentence of confinement operative from the
date of its PRONUNCIATION in orders, if the
person sentenced be then in custody and
recognizes the power to try and sentence to
Imprisonment a person not in custody. One
OF the formulated charges against the Pc
titoner is conduct unbecoming an officer
and gentleman. The penalty for this Of
ferse. under article of war No. 81, is dis
nissal from the service. Custody would not
be essential to the imposition of sentence.
Tie other charge formulated is conduct to
the prejudice of good order and military
discipline. which, under article No. 81, may
be punished at the discretion Of the court
martial. and under this there is no appar-
ent necessity for arrest or custody. AS to
this charge, although 1t is possible to make
IT, and 1t is one Of which court-martial
has jurisdiction, it would appear to be idle
to make it against an officer having no
command or authority, who is not ensaged
In, or associated with, active service who
Is rot subject to order, or command, and to
whom discipline does not apply. But that
Is matter for the court-martial to decide
The Right of Complaint.
both charges are based upon the letter
OF the 27th of September to Gen. Schofield.
This was a personal and a private COM
munication to that officer. 1t makes grave
charges of persecution, injustice, wrong
ana unjust and improper official action by
Zen. Schoheld to the petitioner If these
charges were true, would their making be
conduct unbecoming an officer and a gentle
man, or conduct prejudicial to good order
and military discipline? If the petitioner
believed or thought that they were founded
would it be such conduct?
BY article No. % of the articles of war
1t is provded:
Any officer who thinks himself wronged
by the commanding officer of his regiment,
and. upon due application to such COM
mander, is refused redress, may complain
TO the general commanding in the state or
territory where such regiment is stationed.
The general shall examine into said COM
plant anu take proper measures for re-
dressing the wrong complained of; and he
SHALL 9s soon as possible. transmit to the
Department of War true statement of
such complaint, with the proceedings had
thereon
by article No. 30 ANY soldier who thinks
himself wronged by any officer may COM
plain to the commanding officer of his regi-
ment. who shall summon regimental court
martial for the doing of justice to the COM
plainant.
rs it possible that an officer in active
service may lawfully seek redress from the
commanding officer of his regiment who
he thinks has wronged him, and that a
common soldier may lawfully complain of
an officer if he thinks himself wronged BY
him, but retired officer, out of active ser
vice. engaged III the pursuits of civil life,
cannot complain to tine general command
Ing the army of wrongs that he thinks or
believes that general has inflicted upon him,
without bp;n@ subjected tn