The morning times., 1895-10-11

| and, necessarily, the recited provision of
| statute would he Interpreted as If to read
| Retired Officers shall be subjected to such
| rules ami articles of war as apply to their
| condition. His status is fixed by sections
| 1853, 1855, 259, and ] pa OF the Revised
| Statutes of the United States. BY section
| 255 he is retired from active service, and
| wthdraw wn from command ami from the
| line or promotion. by section 2o6 he is en-
| titled to wear the uniform Of the rank on
which he is retired: by section y h" is
I entitled to receive 15 per cenIuin of the pa
! of such rank, and by section 259 he may bc
| assigned TO duty at the Soldiers Home,
| upon a selection by the commissioners Of
| that institution, approved by the Secretary
| OF War, but shah not be assignabl,' to any
| other duty or the SCI regulations for
the army, puhished IN 1883 by the Secre-
| tary of War, the only one that imposes a
| duty upon a Retired officer appears 10 he
| No. S9!'. which provides that Every officer
| on the retired list VIII, unless specially ex-
| empted, report his address monthly To the
| 1dlUtant general
Tine Constitution of the United States,
/ article ., section >, clause /, constitutes
! the President CUtnuia Dder-In- chief OF the
/ army and navy. Officers OF the army on
/ the retired list are enumerated rs an ele-
nlent of the army of the United States by
| section 1904 OF the Revised Statues OF the
| United states.
BEYoND HIS POWER.
''It follows therefore, that the President
| is coin mander-in-chiefo Of the officers OF the
arm Y on the retired list. This function OF
the chief executive, however, is unaccom-
/ panied by narrowing care or wcehty re-
! sponsiblity, for wtlie he may assign a
very lin tied number TO duty at the Sol
| diers' Hons and, through the adiutant
| generals office, ascertain whether retired
| officers IN axe monthly report or their ad-
| dress, il Is beyond his power To assign them
| TO other duty, because of the statutory in
| hibition. HIS title OF com maDdeT-,n-chief
! so far as il relates to them, as he is shnrn
| OF all power To impose duties, appears 10 be
an empty name.
The return claim that the President is
| the com manding officer of the petitioner,
| because com mander-in-chief OF the army,
| and that Gen. Schofieid on Septem Der ~ as
Acting Secretaryof War, was bis organ and
representative in his capacity Is Armes'
| com mander in-cnleT aud commanding Offl-
Ger, that, therefore, when this offending
| letter, addressed To him as Gen. SchOTield,
| U. 5. A. was read by him in his own office
/ he deem ed tnat the O1fcnse specified IN the
| return was com mitted in his presence and
I within his personal knowledge as Acting
! Secretary OF War. Whether this metaphys-
| cal problem can be demonstrated and the
| position assum ed maintained need not be
1 now determ The legal representative
| OF the War Departm ent disclai lined at the
| hearing any attempt to derive authority
! for the arrest and detention of the petit
| toner from article "A of the articles OF war.
| which authorizes all officers To queH quar-
| rels, frays and disorders, nd TO order Off
| GERS into arrest. and he relied solely upon
article 60. which reads: Officers charged
| with crime shall be arrested and confined
! 10 their barracks, quarters. or tents ana dtA-
prived OF their swords by the cnm manding
| officer. And anyofficer who leaves hiScon
| finem ent before ne is set at liberty by his
| com manding officer shall be dismissed from
| the service
These two are the only articles Of war
that relate to the arrest and confinement Of
officers.
CLAIMS OF BOTH SIDES.
For the petitioner it 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 ap-
pended To the return no arrest was neces-
sary, and that the arrest aud confinement
were unlawful and oppressive. In behalf
of the custody of the petitioner 1T is
claimed that an officer OF the army may
be arrested and cuufined without charge
expressed or preferred in any form; that
| it is only necessary that he be served with
copy of the charges upon which he is
To be tried within eight days after lie is
arrested, and mea ntime he has no right
to be informed OF the occasion OF arrest;
that the word crime as used includes
every offense, however trivial, Tor which
an efficcr may be tried by court-martial:
that inasmuch as a retired officer is not
i'll barracks, quarters or tents, he can be
arrested and confined in some quarters
| OF tents in the discretion of the officer
ordering the arrest; that this arrest was
made for the purpose of trial, a.d was
essential as preliminary step :, such
trial.
at may be that where the penalty for
the offense charged is or may be i'm
prisonment or death. that arrest is u
requisite preliminary step, for the pen
atty deals with the body or the ofIehder.
but where the penalty is rcpriuland, fine,
or dismissal from the service. arrest and
confinement would appear to be useless
| and non-essential. Custody is not essen
tial to trial by court t-martial. Army regu-
lation No. 1925 makes the sentence of
confinement operative from the date OF
its PRONUNCIATION in orders; II the person
sentenced be then i'll custody. and recog-
niZcs the power TO try and sentence 10
Imprisonment person not in custody
CUSTODY NOT ESSENTIAL.
"One of the formulated charges against
the petitioner is conduct uDbecoming an
officer and gentleman The penalty
for this offense. under article OF war No.
81, is dismissal from the service. Gus
ton OF sentence. The other charge for
mulated is conduct to the prejudice of
good order and military discipline, which.
under article No. 62, may be punished at
the discretion of the court-martial, and
under this there is no apparent necessity
for arrest or custody. As To this charge,
although it is possible to make i. and 1t
diction, il would appear To be idle to
make it against an officer having no
command or authority, who is rot en-
gagged in. or associated with. active
service. who Is not subject To order or
command, and to whom discipline does
not apply. But that is matter for the
court martial to decide.
both charges are based upon the letter
OF The 18th OF September. TO Gen. Schofield.
This was q personal and a private COM
.munication to that officer. 1t makes grave
charges of persecution, injustice. wrong,
and unjust 81 improper official action by
Gen. Schofield to the petitioner. III these
charges were true, would their making be
conduct unbecumiDg All officer and a gentle
man, or conduct prejudicial to good order
and military discipline? II tile petitioner