New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1899-05-18
MAJOR SMITHS CASE.
THE GOVERNOR DENIES THE RIGHT OF
THE COURTS TO INTERFERE.
EXAMINING BOARD ADJOURNED UNTIL The
QUESTION HAS BEEN TEsTEp-sTATEMENr
BY TILE COMMANDED. IN cHiEF


Albany May II (speciaD.-Governor Roos..
welt is resolved not to submit without a strue.
gle TO the writ of prohibition issued by judge
Beach. Of the Supreme Court restraining him
and the Board Of Examination appointed by
General Orders No. from examining into the
moral character. capacity and general fitness
for service of Major Clinton II. Smith. Of the
list Regiment. National Guard.
The Governor was served with the writ OF
prohibition to-day, and consulted Attorney-Cien.
eral Davies about 1t. That officer has advised
him offhand that he does not believe the courts
have any authority TO prohibit the Commander
in-Chief, the Governor. from any such action a.
he has taken. or may take In regard to Major
Smith; and yet. since nothing will be lost by DE-
lay, he further advised that the Governor had
better abstain from further action In the matter
until the higher courts decide the question.
1T needs no argument to prove" said the
Governor tonight, the rreparab!e damage 10
the National Guard II the courts can question
my right. as COMMANDMENTS Chief, 10 take such
action as l have taken In regard TO Major
Smith. Such action Of the courts II sustained.
would strike al the root of the efficiency OF the
National Guard. and cannot believe the courts
will forbid the Commander-in- Chief taking no.
tice or the statements maze 10 MIN regarding
Major Smith l will test to the very last ex-
treme the claim of the courts to have any such
Jurisdiction over the Commander in-Chief for
It seems to me- the establishment OF any such
doctrine Of the supervision Of the Commander.
in-Chef in military matters would tend TO de-
moralization Of the Guard.
What Is said about Major Smith? That he
was good officer all but one day and that BY
virtue Of his previous efficiency. his alleged in
efficiency on certain day should not be needed.
AS we'll might Lincoln not have regarded Burn
sides defeat at Fredericksburg I'm considera-
ton OF his previous good generalshp"
The Board Of Examination consists OF Briga.
der-Generai Peter c. Doyle. OF the Fourth Bril-
gade; Brigadier- General Robert Shaw Oliver.
Of the Third Brigade: Colonel Robert Temple
with Judge Advocate Martin Carey OF the
Fourth Brigade as recorder. The Board was
appointed under Section 81 Of the Military Code
The members all here to-day. but under
directions from Governor Roosevelt, adjourned
for two weeks to await the action of the courts.
Major Smith, also was here and had a long
talk with Governor Roosevelt. The Governor
afterward said he could not determine from
what Major Smith said why he had come to Al
bany He had great pity for him. but his pity
would not sway his judgment
Major Smith states that. on July / he was in
the service of the United States and In a foreign
country, under the dominion Of Spain, and that
a court martial or court Of inquiry in the State
Of New-York has no jurisdiction over him for
any acts Of omission or commission alleged
against him at that time.