Los Angeles herald., 1907-01-08
LODGE DEFENDS
PRES|DENT'S ORDER
CLAIMS DISCHARGE "WlTH0UT
HONOR" is LEGAL
Senator Says Roosevelt Clearly Has
Rights of Summary Dismissal.
Retells Brownsville
Riot Story
BY Associated Press.

WASHINGTON, Jan. I.-Preliminary
TO his discussion of the Brownsville in
cident in the senate today Senator
Lodge presented a substitute resolu-
tion, prepared by Senator Knox, con-
f1ning the proposed senate inquiry to
the ARRAY at Brownsville and elm
mating any review of the presidents
action. He accepted Senator Culber-
sons amendment authorizing the COM
mittee to visit Brownsville II it desired.
Mr.. Lodge followed Senator Gearin,
who had concluded a two hours speech
on the Japanese question.
Mr.. Lodge said:
1.-TWO questions are here involved. a
question of fact and a question of law.
They are entirely distinct; they ought
to be settled separately and neither
should be permitted to cloud or Obscure
the other in the public mind. The ques-
tion OF fact may be stated in this way:
There was a shooting in the streets of
Brownsville on the night of August 3,
1906, houses were fired into. one man
was killed and the lieutenant of police
had his horse shot from under him and
was so seriously wounded in the arm
that amputation was necessary. These
facts are admitted and are not dis
puted by any one. This shooting was
done by some one. 1t was done either
by United States soldiers from Fort
Brown or by inhabitants of the town of
Brownsville. There was no one else and
1t is not pretended that there is any one
else who could have done it.
Soldiers Did Shooting
"The president, 'the secretary of war
and the army officers detailed to in
quire into the affair have decided that
the shooting was done by the soldiers
and furnish testimony to sustain tbair
opinion. The Constitutional league, rep
resenting the soldiers, deny that the
shooting was done by them, and assert
that it was done by citizens of Browns
Vile disguised in castoff uniforms of
the troops and provided with exploded
shells from the government ranges who
committed this outrage for the purpose
of casting odium on the troops of Fort
Brown.
"One of these two propositions must
be proved, for general negations are of
no use here. 1t will be the duty of tho,
committee under the resolution to take
all testimony possible and decide
whether this shooting was done by the
soldiers or by citizens of Brownsville. |
Whether the soldiers or the inhabitants
did the shooting is the question of fact,
and on that 1 have no opinion to ex-
press until 1 have heard and examined |
all possible testimony.
Did President Exceed Power?
The question of law is whether the |
president in dismissing these companies |
without honor exceeded his powers
under the law and the constitution. In
making the president commander in
chief, the constitution conferred upon
him all the power and authority or
dinarlly exercised by the commander in
chief under the military law of the
time. That military law had been
slowly forming through many years.
Must Follow Rules of War
The commander in chief, as SUCH has
the right to punish or discharge except
so far as it is limited or regulated by
the law-making power which has en-
acted the articles of war. On this point |
of punishment or discharge the articles
of war are perfectly applicable. Article
4 provides that no enlisted man, duly !
sworn, shall be discharged from the |
service without q discharge in writing
signed by a field officer of the regiment
to which he belongs or by the command |
ing officer when no field officer is |
present and no discharges shall be !
given to any enlisted man before his
term has expired, except by order of |
the president, the secretary Of war; the |
commanding officer of department or
by sentence of a general court martial
1T will be observed that the power of
the president, the secretary of war or |
the commanding officer of the depart |
ment to discharge an enlisted man is |
expressly recognized.
Draws Fine Distinction
1.-The dishonorable discharge can only !
be given by sentence of a court-mar-
tial. The honorable discharge can, nf
course, be given by the commanding Of |
ficer, but there is another discharge now
described as the discharge without
honor, which is not limited to the
action of a court-martial and which
comes within the discretion of the pres
ident, the secretary of war and the
commanding officer. The regulation a :
to the discharge without honor shows
is explicitly as language can the large
power of the commander in chief toI
order such discharges. In some form
this power of summary discharge by the
commander in chief has always existed
and been exercised.
"There can be no doubt that the !
power of summary dismissal was in
herent in the office of the commander
in chief when the president was in
vested by the constitution with that
office. Enlistment is a contract and has
so been held by the supreme court of
the United States, and it is contract
-terminable at Will by the government. !
This is all that is done when a soldier
is discharged without honor.
THE precedents are gathered to-
gether in the report of the judge advo- |
cate general, and it appears that no less
than 352 enlisted men were discharged
without honor from the army Of the
United States during the past year ItI
makes no difference in principle
whether one man or ten, or 100, or m
entire regiment are discharged in this
way. The power of summary dismissal
must rest where it has always rested,
with the highest military authority in
the country 1t is impossible TO con-
ceive of maintaining an army on any
other principle.
Could Not Maintain Discipline
IF a soldier cannot be separated
from the service except by being con- |
Victed of crime on evidence which
would satisfy a jury in a civil case, |
there is no possibility Of maintaining
military discipline. The theory that the |