Evening star. [volume] (Washington, D.C.) 1854-1972, 1903-10-16
FALSIFIES THE RECORD
GEN. AINSWORTH DISCUSSES RE
LIEF LEGISLATION.
He Holds That It is Unconstitutional
and Otherwise Highly Objectionable
Work Of His Office

Gen. AinSwOrth, chief of the record and
pension office, War Department. devotes
the principal portion of his annual report
to discussion of the propriety of legisla-
ton enacted since the civil war for the
relief of deserters and dismissed dis
honorably discharged officers and enlisted
men. He seriously questions the conss.-
nationality of much of this class of legis-
lation, especially that which undertakes to
null1fy the proceedings, findings sem
fences Of courts-martial. to revoke exc
cuted orders of dismissal dishonorable
discharge, to remove charges of desertion
or to substitute honorable for dishonorable
discharges. aside from any question of
its constitutionality" says Gen. Ainsworth.
this legislation is Objectionable because it
undertakes to accomplish the logically and
physically impossible, and because it falsi-
hes the records by declaring that things
that were done were not done. and that
things not done were in fact DONE
The Responsibility.
THE responsibility for this class of leg
islaton rests primarily with the War De-
partment. because, before Congress began
to enact such laws, it was the practice of
the adjutant generals office, in dsposing
of cases Of the character in question, to
issue orders in which it was attempted
to accomplish the impossible things for
which the Intervention of Congress is now
obtained. In this way, and by is Iecogni-
ton by the executive department Of the
government the indefensible course which
the government has pursued has obtained
such a foothold that it seems to be difficult
to remedy the evil except py substituting
for the Illogical language of the legislation
In its most Objectionable form other less
Objectionable though admittedly Gi.sltis-
factory language.
IF the pardoning power could reach such
cases no action of Congress would be
necessary, but the pardoning power can
not reach them. and it is beyond the au-
thority of Congress to add anything to that
power. 1t would seem, therefore, that leg
1slation purporting directly to set aside
legally executed sentences of courts-mar-
tial or other executive acts is unconstitu-
tional. as is also all legislation undertaking
in any way to regulate the exercise of the
pardoning power
1.-The next question to be considered is
whether there is any constitutional way of
granting relief in meritorious cases So
far as regards the pension laws. or any
other laws granting benefits on account of
military service rendered there is no legal
difficulty. Congress has full power over
such legislation and may declare who shall
and who shall not be entitled to its bene-
fits. 1t may make dshonoraby discharged
officers and enlisted men, and deserters
pensienable if it sees fit to do so. And If it
disqualifies them as a class it may remove
the disqualification from the class or in
individual cases.
The Direct Way.
There is direct way of doing this, and
that is by so wording the legislation as to
confer on the officer or enlisted man the
benefits of the pension or other laws as
though he had not been dismissed, had not
been dishonorably discharged, or had not
deserted. Such legislation would be clearly
constitutional and would not be open to the
objection that it is illogical or that it at
temptS to effect an impossiblity 1t would
not make good record of bad one but
for the reasons stated this can be done in
such cases are now under consideration
However. it is believed to be the only strictly
consistent legislation that can be enacted in
such cases. If it should be deemed to be I'M
satisfactory because it recognizes and is
based on the discreditable fact which it is
desired to cover up, there seems to be no
other way of granting relief excluding the
actually unconstitutional legislation) than
the anomalous one of so wording the leyis-
latfon that, instead of undertaking to do the
logically impossible, it shall provide that
those whom it is desired to relieve shall
hereafter be held and considered to have
been honorably discharged, and not to have
deserted, to have been dishonorably dis
charged, or to have been dismissed the
service
Such language removes the principal OBJ
lection to the class of legisla ton which has
been referred to, inasmuch as it does not
encroach upon the constitutional powers of
the President nor actL.nr substitute a fic-
ton for fact. But it cannot be denied |
that 1T is anomalous in prescribing that a |
thlng which has never occurred shall be
considered to have occurred, or that a |
thing which has occurred shall be consid-
cred not to have occurred. 1t is however
only as substitute for still more objection
able legislation than this form of expression |
Is suggested.