The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-12-29

8oN1ye SFNa thu0okuB Inc AH1PEOOoDAo
emergency Of y default OF definite legal
knowledge In thu ONCE Of the War Min
ister. So IL comes to PuRDY.
Now. let us retraoe our way in order to
ascertain. II possible. the exaot nature Of
the question OF law thus lawfully trans
ferred from the military atmosphere
surrounding the Secretary Of War to the
jurisdiction Of the Attorney-G Generals
properly designated subordinate. We
must get At this. II at all, by intelligent
elimination. The question clearly does
not concern the color Of the troops
discharged. That may be q question Of
politics, but 1t cannot be q question Of law,
for the legal rights Of the enlisted negro
are precisely the same as those Of the
listed white soldier, and as q factor inthe
case IL oughtto be dropped promptly and
absolutely from consideration.
Nor oan the question submitted to Mr..
PURDY through Attorney General MOODY
relate TO the guilt or innocence Of the
soldiers accused Of refusing to give
information about the riot and murder
at Brownsville. That question, unfortu-
nately, is before no competent tribunal,
and IL it were before such a tribunal IL
would be q question not Of law, but Of
fact. 1t is true that the question OF
jurisdiction IL q question Of law, but that
cannot have been referred by the War
Department to the Department Of Justice.
for It In already answered, u Mr.. For
AKER has shown, in the duly enacted
Sixty-second Article Of War:
AN crimes not capital. and all disorders and
nsslsets which onnoers and soldiers may be guilty
Of to the prejudice OF good order and military
discipline. though not mentioned In the foregoing
Articles of War. are to be taken cognisance Of bys
general or . rsgimental. garrison or 9 neld onnoers'
court ssaraat, according 70 the nature and degree
OF the offence. and puntsAsd at ne discretion OF
such court
II the crime alleged against these dis
charged soldiers was murder or any
offence against the person or property Of
any citizen which is punishable by the
laws Of the land, Article SO provides
that in time Of peace the accused shall
be delivered up to the civil magistrate.
II the crime wa mutiny-and that is
the crime alleged by President RoosE-
WELT in the message of December 10 as
the reason for the wholesale discharge OF
the companies he accuses of mutinous
conduct--the tribunal and the method Of
punishment are specified in Article ~,
which provides that any soldier guilty
Of mutiny or sedition shall be punished
-as a c~ourt-martial may direct"
II the offence for which the entire
three companies were discharged with
out honor was not murder, of which
all the individual soldiers cannot pos
sibly have been guilty, and if it were
not mutiny, Of which they may not all
have been guilty, but merely the refusal
or neglect or failure to give any informa-
ton in their possession concerning
the guilt of some Of their companions,
then again the determination Of their
guilt or innocence and the punishment
of determined guilt would belong TO
a court-martial, as prescribed in Article
90, quoted above.
Thus 1t is seer that the legal question
referred by the War Department to the
Attorney-General, and by the Attorney
General to the Assistant to the Attorney
General for examination, can be none of
those which we have here briefly con-
sidered. Yet the machinery provided
by Sections 3S7 and S5S Of the Revised
Statutes has been put in motion and Mr..
PUBDY is actually in Texas forming an
opinion on some question OF law.
We repeat that it must be a question
of law and not Of fact that now occupies
Mr.. PURDY. The %supposition is intolerable
that 50 important an officer Of the De-
partment of Justice has been diverted
by anybody's order from his proper
duties with regard to the Federal anti
trust and interstate commerce laws and
sent all the way to Texas to hunt up
facts to sustain. or to seem to sustain, an
Executive act already committed. In
the first place, such a proceeding would
SAVIOR more Of the methods Of autocratio
and irresponsible personal government
than Of those of a republic like ours.
And secondly, what statute warrants the
employment Of Mr.. PURDY is such an
inquisitorial capacity?
What can be the question Of law which
has taken Mr.. PURDY to Texas' Is it the
broad question Of the constitutional right
Of the President Of the United States as
COMMENCEMENT iii OF the army TO
punish enlisted men without trial, either
civil or military
II so, a serious administrative mistake
has been committed in the Department
of Justice. The statute which we have
quoted expressly excludes questions in
volving a construction of the Constitution
from those which may lawfully be referred
by the Attorney-Ge nera to Mr.. PURDY or
any other Of his subordinates.
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