Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-01-08
JOINS ISSUE WITH LODGE
Power Derived From Constitution, Not
British Custom.
RIGHT OF EVERY MAN TO TRIAL
Claims That the Administration Had
Admitted as Much by Ordering
Charges to be Referred.

] Foraker reviewed the objections Of Mr..
| Lodge to the Foraker resolution in the
| Brownsville affair. The substance, he said.
| Of the Massachusetts, senator's position was
that the matter involved two questions. one
| of fact as to the ARRAY. the other Of law as
to the Presidents authority. Mr.. Foraker
said he was opposed to the Lodge position
| on both questions.
| Mr. Foraker denied that the power OF the
President was deduced from what was the
power Of the commander-in-chief Of the
| British army. 1t must be deduced from the
Constitution of the United States The
power the President derived from Congress
was his legal power. 1t was not necessary,
| he said. to go to British presidents to ascer-
| tain this power, the Supreme Court Of
| the United States had spoken on the SUBJ
| ject many times and always had said SIM
| ply 1t was the Presidents power to com
| mand."
| There Is no autocracy in this country"
| said Mr.. Foraker, mo autocratic. dictato-
| RIAL unrestrained and unrestricted power,
| no. not even in the commander chief of
| the army. All power is derived from the
| Constitution.
Mr. Foraker emphasized his position that
| II congress mad spoken on any subject rel
alive to army regulations, there was no
room for the exercise of any power to the
| contrary on the part Of the President On
matters Of regulation which Congress
| had not spoken the Constitution gave the
| President power to make necessary regula-
! tons.
| AS to the contract of enlistment which
| Mr.. Lodge said could be terminated at the
pleasure of the government, Mr. Foraker
| said 1t contained provision that it's effect
| should be governed by the articles of war
and rules and regulations Of the service.
Administration Officials Estopped.
Mr. Foraker maintained that the officials
| Of the War Department and Department
| Of Justice had estopped themselves from
denying that the ARRAY at Brownsville was
a case covered by the articles of war by
| the order that was given to the commander
| of the Department Of Texas to prefer
charges and specifications against thirteen
members of the companies involved. The
| senator had procured copies of these
charges, and he then placed them in the
record. While he disclaimed any inten-
| ton to discuss the ARRAY at this time. Mr..
| Foraker remarked he would say in pass
ing. that If what is contended for here be
| true: that there was such a conspiracy,
and such contamination of it. and that the
number of men engaged in it. and the num-
| Der of accessories before and after the fact
| necessary to carry it out were as charged
it is thing which has never happened in
| all the history of our criminal jurispru-
dence.
| Such a thing never could happen, never
| will happen and never did happen"
| Mr. Foraker said these arrests were
| Hldue, Dul as yet none OF the men charged
| had been tried or given opportunity to re-
| flute the charge against them with evil
| dence.
The Presidents Ideas of Law.
| Speaking of the Presidents position Mr.
Foraker said it might be said by him. ~
| know what was the power of the com
mander-in-chief in the British army and
in the American army under Washington,
| and 1 have that power
| ''He may be right" continued Mr. For
| aker He has his ideas of law. He has
doubtless studied this question. Others
| have doubtless studied it and are in accord
| with him, as the senator from Massachu-
! sets Is. and. therefore, I may be entirely
! wrong But | am simple minded enough
| TO think 1t makes great deal of difference
| whether or not there are facts enough to
| justify.
| Il think the Senate Of the United States
would be in ridiculous attitude before
the country If it should here and now now
| adopt resolution that could be interpreted
| to stop US when come to consider this
| this case upon the facts which are to be
developed, as to whether or not the Pres
| ident acted within his constitutional or
| legal authority"
| Mr.. Foraker challenged any one to show
single precedent for the action taken:
| to show one single instance where man
| has been discharged from the army with
OUT honor, when that man has been charg-
| ed with crime and where he protested
| against so being discharged.
| rs the President of the United STATES
| over and above the law? Can he ignore
| it?' he asked.
! Mr.. Foraker developed his argument and
| gave court rulings to show 1t to be the
blrthrlght of every American citizen to b,
| allowed trial when he was charged with
| crime.
No Evidence to Sustain Charge,
| These men, Mr.. foraker said were
| charged with murder and conspiracy. Be-
| cause there was no evidence to sustain the
charges the men were turned out of sery-
| ice. On this point Mr. Foraker quoted the
Supreme Court, saying that where crimes
| could not be proved the offenders must 20
| free, matter how great the offense or
how disastrous the consequences to the
| country He quoted the same court on the
| question of the right to suspend law to
meet an emergency as saying such a doc
| trine leads directly to anarchy" He said
| the President had been careful to point out
| that he had not discharged these troops as
| organizations. but as individuals, each be-
ing discharged by name.
| Each individual" he said "had right
| to the benefit Of the 146th regulation of the
army. that he should have board of In
| quiry. and should have it without asking
| for it. 1t was the duty of his superior Of
| flcer to know of his rights. to advise him
| Of them and to protect him In them. But
| 1t was not so.''
| coyd Mr. Eorokar utbo