Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1907-01-08

! SiShcu DN u Held Off1cer OF the regl-
ment to which he belongs or by the
commanding officer when no field Of
/ hcer IS present ana no discharge shall
be given TO any enlisted man before
ms term has expired. except by order
of the president the secretary OF war,
the commanding officer of a depart
ment, or by sentence of general
court martial"
1t will be observed that the power
OF the president. the secretary Of war.
the commanding officer of the de
partment to discharge an enlisted
man is expressly recognized.
The dishonorable discharge can
only be given by sentence of court
martial. The honorable discharge
can. of course. be given by the COM
manding officer. but there is another
discharge now described as the dis
charge without honor" which is not
limited TO the action of court mar
tial and which comes within the dis
erection of the president. the secretary
of war and the commanding officer.
The regulation as to the discharge
without honor shows as explicitly as
language can the large power of the
mmander-in-chief to order such
discharges. In some form this power
of summary discharge by the COM
manderin-chief has always existed
and been exercised.
Our military law. as l have said is
taken from the military law of Eng
land and our military practice has re-
mained practically the same as the
English practice. The English mill
tary code says on this point Though
an enlistment is made for a definite
term the crown is under no obliga-
tions to retain the soldier, either in
I4,f tod ~
may discharge him at any time. The
safety of the realm may depend in
some measure ON the immediate dis
charge or dismissal OF any man OF
regiment in arms and, equally, that
the cause of such dismissal should not
at the time be disclosed by the re-
sponsible ministers of the crown.
There can be no doubt whatever
that the power of summary dismissal
was inherent in the office of COM
chief, when the president
was invested by the constitution with
that office Enlistment is contract
and has been so held by the supreme
court Of the United States. and ii is
4 contract terminable at viii by the
government. This is all the authority
hat is needed when a soldier is dis
'harged without honor.
The precedents are gathered to-
gether in the report of the Judge aG-
tocate general and 1t appears that no /
ess than 352 enlisted men We're dis I
charged without honor from the |
army of the United States during the !
past year. 1t makes no difference /.
whatever in principle whether one /
nan or twenty or one hundred, or al (
,ntire regiment are dismissed in this 4
way The power of summary dis
nissal must rest where it has always .
'ested. with the highest military au- /
hority In the country. 1t is impossl-
1le to conceive of maintaining an
lrmy ON any other principle. If a sol
iier cannot be separated from the
erVice except when convicted of
rhine on evidence which would sat
sly jury in civil case, there is no
possibility of maintaining military
discipline.
The power to dismiss or terminate
he contract OF enlistment is abso-
utely essential To the maintenance of
ID army In fact. the principle runs
through all business and society. Civl
ociety could not go on If the power
# dismissal or removal without the
lecessity of evidence to convict before
jury was not universal. The theory
hat the presidents power of removal
ould be limited was debated from the
oundation Of the government until
nder Andrew johnson the tenure of
ffice act was passed. 1t was found
to conduct the government
nder such limitations and the act
vas modified under Grant and re-
ealed under Cleveland. l believe it
o have been unconstitutional, but
hat ii was impracticable has been !
demonstrated and the presidents ;
,ower remained as it always must re-
main, absolute.
What is true of civil life Is true I
With ten fold force Of the army. If
he commander-in-ch is unable to
ismiss from the army the soldiers
whom he regards as dangerous TO the
ervice and to military discipline with
ut furnishing evidence which would
onvict before a jury military dis
ipline would be at an end and the
rmy of the United states would be-
ONE menace to the people OF the
ountry. The law, the constitution,
he statutes and the uniform practice
re so clear as to the right of the
PRESIDENT to terminate the contract of
Enlistment and to discharge soldiers
t pleasure. that II seems waste OF
words to any one who has read the
tatutes to argue it all
Mr.. Foraker reviewing MI Lodge
objection to the Foraker resolution, 4
Ieclared the matter involved two
l1estions one of fact as TO the al
ray. the other of law, as to the presl-
ent's authority. Mr Foraker said ne
vas opposed to the Lodge position on
10Th questions.
Mr.. Foraker denied that the power !
f the president was deduced FROM
What was the power of the comman-
er-in-chief of the British army. IL
must be deduced from the constitu-
ion of the United States The power
Z the president derived from con-
.ress was his legal power. 1t was
ot necessary. he said To go to BRIT
sh precedents to ascertain this power.
"There is no autocracy i'm this coun-
rv," said Mr Foraker. mot even III ,,
he commander-in inchicf Of the army.
III power is derived from the constr
ution.'
Mr. Foraker insisted that if con
ess had spoken on any subject fela-
i've to army regulations, there was
"a room for the exercise of any power
ID the contrary on the part OF the
resident ON matters of regulation
n which congress had not spoken,
he constitution gave the president
ower' to make necessary regulations
IS 10 the contract Of enlistment.
shich MIR. Lodge said could be termi-
ated at the pleasure Of the govern {
lent Mr. Foraker said II contained
provision that its effect should ne
by the articles 81 war ana Z
iiles and regulations of the service.
Nt Fnrai5ei- maintained that the
rGcials of the war department ana .
of justice had estoppcd !
themselves from denying that the az
ray al Brownsville was case covered
.v the articles of war by the order
haf was given to the commander or