New-York tribune., 1902-07-24
GEN. SMITHS RETIREMENT.
THE PRESIDENTS ACTION LEGAL,
THOUGH SOME OBJECTIONS TO
1T ARE RAISED.
ley TELEGRAPH To THE TRIsrrSE


Washington July 23-The War Department
will take notice officially of General Fftz-
hugh Lees criticism of the Presidents action
in summarily retiring General Jacob H Smith,
although. as an officer of the regular army on
the retired list General Lee is amenable to
discipline and held as strictly accountable as
General Miles for commenting on the Schley
case General Lee, however, is not alone in
the view that stigma has been put on General
Smith not contemplated in the court martial
which sentenced him to a simple admontion
and was, therefore. not warranted by the stat
Utes. The close coupling of enforced retire
ment with the Endorsement of censure is held
by General Smiths friends, who are numerous
in the service to have exceeded the Presidents
prerogatives and justiiable only by the political
eXigency growing out of the Philippine debate
in Congress. They say that aside from the
Presidents indisputabe right TO retire any Of
fcer over siXty-twO years old, the removal OF
Genera! Smith from the active list was in the
nature of a punishment and intended. In
carrying out the sentence of the court the Presi-
dent concluded his admonition by commencing
General Smith for the galantry and good con-
duct that have marked his long career in the
army, and said:
1t is deeply to be regretted that he should h1Te i've
further usefulness in the army. hereby direct
that he be retired from the active list
Thus it is made to appear from the record
that General Smith has been retired from active
service because of his offence presented by
the finding and embodied in the sentence of
court martial. and that so much of the punish
ment as is involved in retirement from active
service is added by the President 1t is said by
experienced officers and other persons familiar
with military law and the practice of courts
martial that the method of placing General
Smith on the retired list is without warrant of
law. and. if allowed to go unchallenged. will
establish a dangerous precedent. The fact that
General Smith has reached the age of sixty-two
did not appear in the recorded action of the
President. 1t appeared only in the Endorsement
of the Secretary of War; but that is held to be
merely advisory and forms no part of the exec
utive order. 1T is no longer for the interest of
the service" says the Secretary in his indOrse-
ment, that General Smith should continue to
exercise the command of his rank. His useful
ness as an example, guide and controlling in
fuence for the junior officers of the army is at
an end, and, as he is already upward of sixty
two years Of age. recommend that you exer-
else the discretion vested in you by law and
now retire him from active service
The point now being urged is that if the Presi-
dent had added few words to his order the
objection raised to the legality of his action
would have been partly wholly removed.
Thus it is pointed out that, had the President
said: "Brigadier General Jacob II. Smith having
reached the age Of sfXty-twO. l hereby direct
that he he retired from the active list he would
have invoked the authority OF the statute which
gives him authority to retire such an officer at
his discretion.
1t is hardly probable however that General
Smith Will contest the legality of his retirement
although many lawyers are of opinion that in
such contest the courts would hold that the
President had exceeded his authority that Gen
eral Smith was still the active list and must
so remain until the President acted independ-
emily Of the court martial Endorsement and
issued distinct and separate order OF retire
ment. Such procedure. if carried out would
cancel the promotion and retirement of General
Ward and the elevation Of General Sanger until
a later date but il is improbable that General
Smith would derive the slightest benefit from
it, and II is therefore unlikely that he will wish
to reopen the matter.
General Frtzhugh Lee is quoted In The New
York Sum- saying. when asked il the treatment
Of General Jacob n. Smith by the President was
In strict accordance with military usage:
No. The President of the United States is not
empowered TO add to a sentence PROMULGATED by a
military court. However, the President may right
the matter to court, that he. s President has
the right to retire any army officer ne NAV desire
who has reached the age of sixty-two years.
/ DO not know General Smith personally hut
know that he has fine army record IL Is NOT nm
I likely that remarks General Smith let fall without
surlClent thought figure too prominently this
matter recall an instance in my career in
the Clvil War when |. on finding that persons were
settling fire wantonly TO that | had can't
ured on the spur of the moment ordered that any
person caught in such acts be thrown the bon
thought |, Of course. avoided such savage modes
OF punishment, but certainly I laid myself omen To
charges or extreme cruelty by my first expression.
recall that there were formal orders prOnuI-
gated during the Civil War that had as savage and
bloodthirsty flavor the orders alleged TO have
been given by General Smith.