The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1907-01-05
DANIEL 7 AGREES
WITH PRESIDENT
Says He Was Within His Powers
When He Dismissed Negro
Soldiers.
GAINES STUDIES QUESTION
Says if Roosevelt Can Appoint
Officers He Should Have the
Right to Dismiss Them.
GAINES STUDIES QUESTION
PROM our Regular Correspondent j

From Our Regular Correspondent
| WASHINGTON, D. c., January H.
| Senator Daniel believes that the Presi-
| dent acted within the scope OF his uu-
| thority when he dismissed from the
| military service the Twenty-nfth In
| fantry, composed OF the negroes who
| shot up the town OF Brownsville. 1t Is
| possible that Senator Daniel may make
| speech IN defense of the Presidents
| action while the Foraker resolution is
under discussion. Senator Martin will
also support the President in his course
towards the negro soldiers.
Representative John w. Gaines, of the
Hermitage District OF Tennessee, with
characteristic energy and industry, has
put In a great deal of work In studying
| the case as developed by the action Of
| the President, reading presidents and
collecting authorities, not that the case
Is Immediately likely to come up in the
| House, but because Nr. Gaines has
| faculty for getting to the bottom Of az
most every subject which suggests itself.
From the days Of President Washing
| ton until the present. said Mr.. Gain es
| to-day, "it has been moot question
| whether the President OF the United
| States, as commandment chief OF the
army and navy, has the power to dis
miss officers which he, az President and
commander-in-chief. has appointed.
This controversy has arisen over officers
of both civil and military positions, and
to those appointed by the President d.
rectly, and to those appointed by and
with the advice and consent of the Sem
ate
Nevertheless continued Mr.. Gaines,
from the time of President Washington
until the time of President Johnson, all
the Presidents dismissed officers In the
DIV witt r{a nfHc in he.
military service without court-martial.
The power to appoint. except where the
Constitution fixes the tenure of office, has
been held by Congress and the courts,
as rule, to include the power to dis
miss at the will of the President. AS
early as 1850. think. Congress. by vote.
adjudged that the President had the abso-
lutte right to dismiss civil officers except
in those cases where the tenure was fixed
by the Constitution.
The President, as President, is empow-
cred and directed by the Constitution to
see that the laws are faithfully executed,
and he Is not required to do the work
himself. and he may dismiss the officer
upon whom he has depended if that officer
fails. AS commander-in-chIef he may in
person take command of the army and
navy. He has never done this but he
has directed those who have been in per-
sonal command.
The King OF England as commander
in-chief appoints and dismisses officers of
the army and navy. The President as
| commander chief is responsible. and
certainly should be given the power 10
| dismiss officers and men unfit for the
service.
when Mr. Johnson was President
| Congress passed an act as | remember
1t, prohibiting the President from dis
missing officers OF the army and navy
| in time of peace. This was to restrain
| President johnson from the exercise of
| the full powers he enjoyed as President
| and commander n-chief. Congress has
| the power to establish the army and navy
and to make rules and regulations con-
| trolling them. But Congress cannot
| establish the commander-in-chief. The
| people elect him when they elect the
President.
Figurehead.
IF Congress can control the COM
mander, it can SO control him as to make
MIN perfect fgurehead. with an empty
| title and no power. The President has
| also dismissed, without court-martal
proceedings, West Point cadets, and the
Supreme Court upheld his action. 1t is
a dangerous power to permit any one
| Individual to dismiss public officials.
but the power must be somewhere,
war that compel immediate action to
preserve the integrity of the army and
navy the safety and peace of the peo-
pie. and the morals and honor of the
army and navy.
The Supreme Court has never decided,
and has expressly said that 1t was not
passing an opinion. whether or not Con-
gress could completely control the COM
mander-in-c chief in passing on many
ont nf
questions have been submitted to sew
eral attorneys general. from the begin
ming of the government, and without a
single exception that l have found they
have upheld tho power of the commander
in-chief to dismiss without court-martal
proceedings. In one case the President
dismissed after the officer had been ac-
Quilted by court-martial. Attorney
General Legare, responding to President
Tyler's inquiry on this subject, said:
.''yVhatever | might have thought OF
the power OF removal from office, II the
subject was res integra, 1t is now too
late to dispute the settled construction OF
1889. It Is according to that construction
from the nature of executive power, alb
solute in the President subject only to
his responsibility to the country (his
constituents for a breach of such a vast
and solemn trust. 1t is obvious that II
necessity Is q sufficient ground for such
n concession in regard to officers In the
civil service. the argument applies a
multo fortiorl to the military and naval
department. I have no doubt. therefore,
that the President had the constitutional
power to do what he did, and that the
officer in question Is not in the service of
the United States
''.When Congress has given the Pres
ident power to dismiss. the attorneys
general have said several times that such
an act is simply declaratory of the long
established law,
'rhe President, the executive depart
ment, the legislative ana judicial depart
ments, must be kept separate, in u great
measure, and have been so, at least in
theory. and In practice, as far as pos
sible. Tho question just now is, whether