The Washington herald., 1907-01-08

oA tAe tHfOnet tneTe was pasStu tiic
famous 'mutiny act which not only
recognized the army and the military law
under which it was governed. but pro-
vided for the trial Of mutineers and de.
serters by court-martiaL This act. which
had t. be renewed every year, has kept
the control of the military forces Of Eng
land In the hands OF Parliament The
principles of the 'mutiny act and the
articles Of war adopted by England were
in the main those adopted by US at the
time OF the Revolution, and which may
be found embodied in the articles Of
war which are now a statute OF the
United States. The commander-in-chief
has. as such the right inherent in his
office to punish or discharge, except so
far as it is limited or regulated by the
law-making power which has enacted the
articles of war on this point of punish
ment or discharge the articles Of war are
perfectly explicit.
Power Expressly Recognized.
THE power Of the President. the Sec
retary Of War, and the commanding Off
Ger Of a department to discharge an en-
listed man is expressly recognized. The
dishonorable discharge Of an enlisted
man is expressly recognized. The dishon-
orable discharge can only be given by
sentence Of a court martial; the honora-
bic discharge can, Of course, be given
by the commanding officer, but discharge
without honor comes within the discre-
ton of the President. the Secretary of
War, and the commanding officer. In
some form, this power Of summary dis
charge by the Commanders -in-Chief has
"Our military law. as ] have said. is
taken from the military law Of England,
and our practice has remained practically
the same as English practice. The Eng
lish authority, Clode, in his work, says
on this point. Though an engagement is
made for a term certain. the crown is
under no obligation 20 retain the soldier
except in pay or In arms for that period,
but may discharge him at any time. The
safety Of the realm may depend in some
measure on the immediate discharge or
dismissal of any man or regiment IN
arms. and, equally that the cause Of such
dismissal should not at the time be dis
closed by the responsible ministers Of the
crown. There can be no doubt what
ever that the power Of summary disnis-
sal was inherent In the Office Of Com
mander-in-Chief when the President was
invested by the Constitution with that
office Enlistment is a contract. and has
been so held by the Supreme Court of the
United States. and It is a contract ter
minable at viii by the government. This
is all that Is done when a soldier Is dis
charged without honor
Numbers DO Not Count.
1T makes no difference whatever in
principle whether one man, or ten, or
one hundred. or an entire regiment are
dismissed in this way. The power OF
summary dismissal must rest where %
has always rested, with the highest mill
tary authority IN the country. The theory
that the President power Of removal
could be limited was debated from the
foundation Of the government, until, un-
der Andrew Johnson. the tenure OF office
act was passed Il was found impOssible
20 conduct the government under such
and the act was modified Un-
der Grant and repealed under Cleveland.
II the Commander-in-chief is unable 10
dismiss from the army the soldiers whom
he regards as dangerous 10 the service
and TO military discipline without fur
nshing proof which would convict 10
jury, military discipline would be az an
end and the army of the United States
would become a menace 20 the people Of
the country.
Senator Foraker Replies.
Senator Foraker took the floor as soon
as Mr. Lodge concluded He plunged into
the subject with great earnestness. and
for nearly two hours held the attention
Of the Senate. He denied that the power
Of the President as the Commander in
Chief gave him authority to do more than
say where the army should be stationed,
and TO direct its movements.
His constitutional duty Is TO com
mand.' said the Ohio Senator. There Is
no autocrauc power ia this country. All.
power comes from the Constitution, and
such powers as the President does not de-
rive from the Constitution he is without
Mr.. Foraker divided the Presidents
powers as Commander in chief into two
classes; his constitutional power as
Commander in Chief. and the legal
powers conferred on him by statute 10
make regulations for the army in ac-
cordance with the laws of Congress.
AT this point Senator Culberson. OF
Texas, who had been following the Ohio
with intense interest. interposed
the question:
Does the Senator from Ohio hold that
the President derives power TO make reg
llations for the army from that conferred
by statute on him as the duty OF the
Commander in Chief?'
Replying. Mr.. Foraker said he conceded
that when Congress failed to make regu-
lations the President could make them
to meet the necessities Of any particular
case.
Continuing, he said. The Senator from
(Mr. Lodge has said that
enlistment Is a contractual relation. That
Is true. But there is nothing indefinite
rs TO the obligations of the enlisted man.
nor is there anything indefinite as 10 the
rights OF the enlisted man. The articles
Df war have pointed out every conceivable /
offense Of which an enlisted man may be
guilty, and provided that the punishment
shall be such as a court-martial may di-
rect"
Secuted Idea of Conspiracy.
Mr. Lodge had spoken Of conspiracy
oy men Of the Twenty-ffth Infantry to
scale the walls Of Fort Brown, shoot up"
he town, and return unObserved
If they did all this without detection, he
declared, it was without a precedent in
he history Of criminal Jurisprudence. 1t
never happened before; it viii never hap
pen again, and I make bold to say it
never did happen" he declared with great
Mr.. Foraker declared the men were en-
titled 10 a trial. The thirteen, including
he sergeant OF the guard and the men on
guard, who must have known Of the Of
.ense If 1t were committed by soldiers
svery one Of them must have known Of II |
were taken before the grand jury and
dismissed because the grand jury could get
10 testimony on which to hold them. He