Show LODGE I IFOR FOR 1 K Defense of the to Presidents Right i to o Discharge the e Boys in Blue ue a at Will MERELY QUESTION OF LAW LAWi r TENURE OF OFFICE ACT WAS UNCONSTITUTIONAL Washington Tan Jan to hIs discussion or of the Brownsville inci incident dent In the senate today Senator Lodge pre presented a prepared by Senator Knox confining the pro proposed posed p s Renate inquiry to the affray at and eliminating any re review review view of the presidents action He ac acCepted accepted Senator amendment authorizIng the committee to visit it if It desired Mr Lodge followed Senator GearIn who had concluded a speech on tho Japanese Question Mr Lodge said Speech of Senator Lodge Two questions are here Involved A question qU sUon ot of fact and a question of la law They Thoy are entirely dIstinct they ought to be settled separately and neither should be to cloud or ob obscure the tho other othor In the public mind The question of fact may be a stated in this way There was shooting In the streets of Brownsville on the night of Aug 13 1906 houses were fired Into one man Was killed and the lieutenant ot of police md had his horse shot from under him and was so seriously wounded in the affair that amputation was necessary These facts are admItted and RTe are not disputed Ed by anyone This shooting was done by some one It was done either by States soldiers from Fort Brown or by Inhabitants of the tho town of BroW Brownsville There was no one else and It is not pretended that there Is anyone any one else who could have done it Question of Fact The president the secretary of war and the army officers detailed to inquire into the affair have decided that the shooting hooting was done by the tho soldiers and furnish testimony to sustain their opinIon opinion Ion The Constitution league representing representing the soldiers deny that the shooting was done by them and assert that It was done by citizens of Browns Brownsville ville me disguised In castoff uniforms of the troops and provIded with exploded shells from the government ranges who committed this outrage for the purpose or of casting odium on the troops of Fort Brown One ot of these two propositions must be proved for general negations are of no use here It win will be the duty ot of the committee under the resolution to take all 1111 t testimony possible told and de decide deside side cide whether was done by bythE bythe thE soldiers or by citizens of Brownsville Browns ville Whether the soldiers or the in inhabitants habitants did the shooting is the ques lion Hon gf fact and on that I have nS n to express I have heard ana an examined all possible testimony Question of Law The question of la law is whether the th e president in dismissing these comps compa companies riles nies without honor exceeded his powers power s under the law and the constitution I This question can be settled by the th e senate Sf just as as Well now and I think thin k batter than at any other time without t the least regard for fer the committees committee s decision as to the question ot of fact It ItI t t I purely 1 a question of law The constitution makes the presIdent t of the army and an d navy of the United States and s is given authorIty to makes rules for forthe fo r the government and regulation of th the theland e land and naval forces In the firth h amendment of the th constitution the land lan d and naval forces are excepted from the th e rights guaranteed to all persons who w h hare n are held to answer for a capital or o r otherwise infamous crIme It appears therefore that soldIers and sailors recognized as being subject to a law lac v from that administered In the th ve e civil courts In making the president t the constitution conferred upon him all the power and an d authority ordinarily exercised by the flu c under the milita ry law Jaw of the times That military lay la y had been slowly forming through h many man y years y Power of King Absolute 1 Broadly speaking the power of the th wa was origInally ab absolute solute and wars were conducted undo under r ordinances or rules laid down by the th king himself Modern rules find ar articles tidies of war may be said to date from Pro m 1 chose hos established by Gustavus Adolph Adolphus us m and among people from Prince code which was wa s practically used by both sides in Eng lands cIvil wars Alter After the revolution n which placed William of Orange on the th e throne there was pas passed ed the fam famous lIS mutiny act which not only recognized the army anny and the military law under I which it was governed but provided d for the trial or of mutineers and deserters by Discharge at Will This act which had to lo be renewed d I every year has kept th the control of thE military forces of England In the hands handsor I or of parliament The principles of the mutiny act and the articles of war I adopted by England were In n the main the same adopted by b us at the timE of the revolution and which may be round found embodied in thE articles of war which are now a statute of the United States The has hasus hasas us as such the right to punish or dis discharge discharge charge except so far as it Is d dor or regulated by the lawmaking power pourer which has enacted the articles of war On this point or of pUnishment or dis discharge charge the articles of war are perfect perfectly ly applicable Article 4 provides that no enlisted man duly sworn shall be discharged from the service without a discharge in writing signed by a field officer or of the regiment to which he be belongs belongs longs or by the commanding officer when no field officer is present and no discharge shall be given to any enlIst enlIsted ed man before his term has e expired ex except except by order of the president the sec secretary e c of war the commanding officer or of a department or by sentence of a general It will be observed that the power of the president the secretary or of Val Valor or the commandinG officer or of the de department department to discharge an enlisted man manis is expressly recognized Without Honor The dishonorable discharge can only be Given by sentence of a The honorable dIscharge can of course be given by the commanding of officer Icer but there Is another discharge not described as the dIscharge with without without out honor which Is not limited to the action of a and which comes within the discretion ot 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 th large power of the to order such discharge In some form this power of summary di by bythe by the has always existed ex existed isted and been exercised Built en British Practice Our militarY law as I have said is i taken from the law of Eng Ens land and our has hns remained practically the same as English practice practice tice The English authority code says on this point Though an engagement is made for a term certain the crown crow is s under no obligation to retain the sot sol soldier dior dier either In pay or in arms for that tha t perIod but may discharge him at any an antime time The safety of the realm may de depend pend In some measure on the immediate discharge or dismissal of an man or o regiment in arms and eau fly lly that the cause of such dismissal should not no at the time be disclosed by the responsible responsible sible mInisters ot of the crown There can be no doubt whatever that tha the power of summary dismIssal wa was Inherent In the office of chief when the president was invested by the constitutIon wIth that office Enlistment is a contract and has been bee so held by the supreme court of United States and iLls iLis a contract ter terminable at will by the government This Is all that is done when a soldIer Is discharged ed without honor Precedents Cited The precedents are gathered to gether gethel in the report of the jUdge advocate sate cate general and it appears that no DO less than enlisted men were dis discharged charged without honor from the army of the United States during the past year ear It makes no difference whatever In principle whether one man or ten tenor tenor or or an entire regiment are dis discharged charged in this way The power of summary dismissal al must rest where It I Ihas has always rested wIth the highest i milItary authority In the country It Itis Itis is impossible to conceive of maintain frig ing an army on any other principle If Ifa Ifa a soldier soUlIer cannot be separated from the service except by being convicted of o f I crime on evidence which would satisfy I n a jury in a civil case there Is no I ot of m maintaining military r pUne Aline Power to Dismiss Essential The power to dismiss or terminate the contract ot of enlistment Is absolutely essential to the maintenance or of an army In tact fact the principle runs through all business and society Civil society could not go on if the power of dismIssal or removal without the ne necessity of evidence to convIct before a jury w was s not universal The theory that the presidents rower power of removal be limited was debated from the foun dation of the government until under Andrew Johnson the tenure ot of office act was passed It was found Impossible to conduct the government under such limitations and the act Was modified under repealed under Cleveland Cleeland I believe it to have been unconstitutional but that it was Impracticable has been demonstrated and the presidents power remained as it must remain absolute Would Constitute a Menace What is true of civil life i is true wIth tenfold force of th army anny It If the Is ablo to dIs dIsmiss miss from the army the soldiers whom he regards as dangerous to the service and the military discipline Without fUr fUrnishing furnishing proof that would convict be fore foro a jury military discipline would b bat be at nn an end and the army of the Unite States would become a menace to th I people of the country The law th the constitution the statutes and the uni form practice are so clear as to thE rIght or of the president to terminate the thC contract of enlistment and discharging soldiers at I pleasure lea ure that It seems a waste of words to anyone any one who has read the statutes to argue It at at all |