PARKER CONSTITUTION CLUB OF NEW YORK CITY.
REPORT No. 1
On the Charge that the Executive Pension Order
was Unconstitutional, Recently Issued by President
Roosevelt's Pension Commissioner.

This report does not deal with, or in any way question, the
wisdom or propriety of the pension laws of the United States ;
and it assumes the right and duty of Congress to enact a system
of pensions. The report is the first of a series dwelling on
specific acts of President Roosevelt out of which has grown the
accusation against him of unconstitutional conduct. The general
inquiry is as to the propriety of his conduct when measured by
the constitutional standard, and his action in the pension matter
is the instance now up for discussion.
The order in question was issued on March 15, 1904, about
three months before his nomination. The pertinent part is as
follows :
" Ordered, (1) In the adjudication of pension claims under
" said act of June 27, 1890, as amended, it shall be taken
' ' and considered as an evidential fact, if the contrary does
' ' not appear, and if all other legal requirements are properly
' ' met, that, when a claimant has passed the age of 62 years,
' ' he is disabled one-half in ability to perform manual labor,
' ' and is entitled to be rated at six dollars per month ; after
' ' 65 years, at eight dollars per month ; after 68 years, at ten
" dollars per month ; and after 70 years, at twelve dollars
" per month."
The full text of the order is appended.
That an executive act of the President is unconstitutional
where authority for it cannot be found stated in the United States

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Constitution, is not to be disputed. On that head we need only
refer the reader to our preliminary general report. The authority
asserted for issuing the order in question is the clause in
Article II., Section 3, which provides that the President "shall
take care that the laws be faithfully executed.'" Of this clause
the Supreme Court of the United States, which is the authority
to construe the Constitution, said in the case of Kendal v. United
States (reported in 12 Peters, 524), that: "To contend that the
obligation imposed on the President to see the laws faithfully
executed, implies a power to forbid their execution, is a novel
construction of the Constitution, and entirely inadmissible."
This is but a judicial statement of what is common sense. If,
under the guise of carrying out a statute of Congress, President
Roosevelt nullifies one of its provisions, he is guilty on the
charge. The order in question is practically an announcement that
the Department will give a pension certificate to every applicant
62 years old. Such was the evident intention of the executive
as it is beyond intelligent supposition that anybody 62 years old
who applied for a pension would trouble the Department with
affirmative proof that he was not disabled. Hence the question
of the constitutionality of the President's act depends upon
whether the statute of Congress granted pensions because a man
was 62. If not, the order becomes a faithless departure from
the law instead of a faithful execution of it.
The following extract from the statutes in point will be clear
to everyone. We append to our report the full text of the
statutes, to show the accuracy and fairness of our extracts, as in
a matter of this importance nothing is to be taken for granted.
On January 29, 1887, Congress had enacted as follows,
regarding pensions for those in the Mexican War :
" Section 1. That the Secretary of the Interior be and he
' ' is hereby authorized and directed to place on the pension
" rolls the names of the surviving officers and enlisted men
" * * * who being duly enlisted actually served sixty
" days * * * in Mexico, * * * in the war with

' ' that nation, or were actually engaged in a battle in said
" war * * * provided that every such officer, enlisted
"man * * * who is or may become sixty-two years of age
' ' or who is or may become subject to any disability or dependency
' ' equivalent to some cause prescribed or recognized by the
" pension laws of the United States as a sufficient reason
" for the allowance of a pension, shall be entitled to the
" benefits of this act."
" Section 3. That before the name of any person shall be
" placed on the pension roll under this act, proof shall be
" made under such rules and regulations as the Secretary ol
' ' the Interior may prescribe of the right of the applicant to
" a pension."
By this act, Congress, in express terms, pensioned every sur
vivor of the Mexican War either 62 years old or disabled. It was
passed just thirty-nine years after that war was concluded.
Every soldier who was at least twenty-three years old when the
war ended, was thus expressly within its terms, and was intended
so to be. Within five years after the Act had taken effect
every soldier of the war was within its terms, whether dis
abled or not, because he must have "become sixty-two years of
age." Three years after this statute, Congress passed a statute
relating to the Civil War, which is the Act mentioned in Presi
dent Roosevelt's executive order. It provided :
' ' That all persons who served ninety days or more in the
" military or naval service of the United States during the
" late war of the rebellion and who have been honorably
" discharged therefrom, and who are now or who may here-
" after be suffering from any mental or physical disability or
' ' disabilities of a permanent character, not the result of their
" own vicious habits, which so incapacitates them from the
' ' performance of manual labor as to render them unable to
" earn a support, shall upon making due proof of the fact,
" according to such rules and regulations as the Secretary of
" the Interior may provide, be placed upon the list of
" invalid pensioners of the United States, and be entitled to
' ' receive a pension not exceeding twelve dollars per month,
" and not less than six dollars per month, proportioned to
' ' the degree of inability to earn a support. ' '

Observe the difference between the two statutes. Regarding
the Mexican War, Congress prescribed that anyone who was 62
years old or disabled, should receive a pension. In regard to the
Civil War, Congress prescribed that anyone who was so perma
nently disabled as to render him unable to earn support by the
performance of manual labor, should receive a pension ; but no
pension was granted for age.
Fourteen years after the Civil War Statute was passed, the
President's pension order was issued from the office of the
Secretary of the Interior. The period that had then elapsed after
the Civil War was about the same as the period elapsed after
the Mexican War when Congress gave a pension for age to sur
vivors of that war. The time had arrived for Congress to do the
same thing, if such was the will of Congress, for survivors of the
Civil War. No such statute was enacted. Nevertheless, the
President by an executive order, deliberately and arbitrarily
substituted the terms of the Mexican War Act for the terms of
the Civil War Act, when the two were diametrically different
upon the Statute Book of the United States. His order nullified
the requirement of incapacity, expressly placed by Congress in
the Civil War Statute, except so far as it relates to men under 62.
Without further discussion it becomes manifest that this was an
intentional departure from the law, and that the charge should be
sustained. Much has appeared in the public prints about the order of
the Pension Bureau issued under Mr. Cleveland's administration.
This order prescribed 75 years of age. We need not discuss the
question whether that order was justifiable ; certainly it was un
important. The difference between that order and the later one,
for which it serves as an excuse, is that the former was in accord
ance with common knowledge, while the latter was both against
common knowledge and against the construction which Congress
had put upon its own acts. At 62 a man may be, and usually is,
able to perform manual labor ; at 75 he is not. And Congress
had recognized the former fact when in the Mexican War Statute
it gave a pension to men either 62 or disabled. The first order

may be justified as a legitimate rule of evidence for the con
venience of the Department, and within the scope of the statute.
The second was the creation of a new class of pensioners, whom
Congress had not pensioned.
The usurpation of legislative power by President Roosevelt
is humorously illustrated in the words of General Black at the
recent encampment of the Grand Army, when he thanked the
President for what he had done and urged his hearers to use their
influence that a law might be passed to the same effect.
To consider next the extent of this executive usurpation.
Almost every veteran of the Civil War is to-day at least 62 years
old. The very last will become so within the next four or five
years. The actual effect of the order has been to appropriate at
least $72 per annum of the Nation's money to every human being
who was connected with a regiment for three months in the Civil
War. The total amount it will never be possible to measure in
exact dollars and cents. Figure up the number of men now
living who were connected with the army or navy for ninety days
in the Civil War and who are not disabled, give each of them $72
a year as a minimum, or $144 a year as a maximum, and we have
the sum total. Estimates have been made at $12,000,000 per
annum. The Pension Commissioner has insisted that $5,400,000
per annum will be a more approximate figure. It seems that
there are about 182,000 survivors of the war not on the pension
rolls prior to this executive order. If all these were to be placed
on the rolls, the result would be about $15,000,000 per annum.
If the chosen representatives of the United States in Congress
assembled had desired to appropriate fifteen million dollars per
annum, or any other sum, to such a class of pensioners — men
exactly as well able to earn their living as anybody else 62 years
of age — that was their right. It was not the President's.
In this aspect of the case, President Roosevelt deliberately
disregarded Article I, Section 9 of the Constitution, providing :
' ' No money shall be drawn from the Treasury but in consequence
of appropriations made by law." When Congress appropriates
money for the payment of pensions, it provides for pensioners

who have been placed on the rolls "under the provisions of any
and all Acts of Congress." The President is prohibited from
authorizing a dollar to be paid out of such appropriation except to
a pensioner created by law. If Congress authorizes the building
of one battleship and five cruisers, and then appropriates a lump
sum for construction purposes, no one would pretend that the
President could use the money for the construction of five battle
ships and one cruiser. So, if Congress appropriates a lump sum
for the payment of pensions and if the existing statute authorizes
the payment of pensions to those who can establish that they are
' ' suffering from any mental or physical disability or disabilities
of a permanent character " "which so incapacitates them from the
performance of manual labor as to render them unable to earn a
support," the President is forbidden by the Constitution to
expend the money thus appropriated for the payment of pensions
to one who is not ' ' suffering from any mental or physical dis
ability," or who is not incapacitated "from the performance of
manual labor," or is not " unable to earn a support. " Congress
did not authorize the appropriation of pensions because soldiers
of the Civil War were aged 62 ; and the honoring of pension certi
ficates, obtained on that score, by President Roosevelt's Secretary
of the Treasury, is an illegal license by which that official permits
the money of the Nation to be abstracted.
It is a fair inference that the action of President Roosevelt,
three months before his nomination, was a bid for the pension
vote. If Judge Parker should to-day announce that his Pension
Commissioner, when appointed, would give a certificate to any
body who was 60 years old, and that his Secretary of the Treasury
would honor the certificate, the reception of such a pronuncia-
mento by the people of this country may be well imagined.
Why, then, should they receive differently the order of March
last ? Indeed, the President's act is far more serious, because he
has, without warrant of law, and seizing the opportunity of office, in
effect appropriated the Nation's money for his own campaign fund.
We conclude that the order was unconstitutional, lawless,
and most reprehensible.

APPENDIX "A."
Department of the Interior,
Bureau of Pensions,
March 15, 1904.
Order No. 78.
Whereas the act of June 27, 1890, as amended, provides
that a claimant shall ' ' be entitled to receive a pension not exceed
ing twelve dollars per month and not less than six dollars per
month proportioned to the degree of inability to earn a support,
and in determining such inability each and every infirmity shall
be considered, and the aggregate of the disabilities shown be
rated ; ' ' and
Whereas old age is an infirmity the average nature and
extent of which the experience of the Pension Bureau has estab
lished with reasonable certainty ; and
Whereas by act of Congress in 1887, when thirty-nine
years had elapsed after the Mexican war, all soldiers of said war
who were over 62 years of age were placed on the pension roll ;
and Whereas thirty-nine years will have elapsed on April 13,
1904, since the civil war and there are many survivors over 62
years of age :
Now, Therefore, Ordered :
(1) In the adjudication of pension claims under said Act of
June 27, 1890, as amended, it shall be taken and considered as an
evidential fact, if the contrary does not appear, and if all other
legal requirements are properly met, that, when a claimant has
passed the age of 62 years he is disabled one-half in ability to
perform manual labor, and is entitled to be rated at six dollars
per month ; after 65 years at eight dollars per month ; after 68
years at ten dollars per month, and after 70 years at twelve dollars
per month. (2) Allowances at higher rate, not exceeding twelve
dollars per month, will continue to be made as heretofore, where

disabilities other than age show a condition of inability to per
form manual labor.
(3) This order thall take effect April 13, 1904, ''and shall
not be deemed retroactive. The former rules of the office fixing
the minimum and maximum at 65 and 75 years, respectively, are
hereby modified as above.
E. F. WARE,
Commissioner of Pensions.
Approved :
E. A. Hitchcock,
Secretary.

APPENDIX "B."
Pensions to Soldiers, etc., of the Mexican War and to Their
Widows.
Be it enacted, etc., that the Secretary of the Interior be, and
he is hereby authorized and directed to place on the pension-roll
the names of the surviving officers and enlisted men, including
marines, militia and volunteers, of the military and naval services
of the United States, who, being duly enlisted, actually served
sixty days with the Army or Navy of the United States in
Mexico, or on the coasts or frontier thereof, or en route thereto,
in the war with that nation, or were actually engaged in a battle
in said war, and were honorably discharged, and to such other
officers and soldiers and sailors as may have been personally
named in any resolution of Congress for any specific service in said
war, and the surviving widow of such officers and enlisted men :
Provided, that such widows have not remarried : Provided, that
every such officer, enlisted man, or widow, who is or may become
sixty-two years of age, or who is or may become subject to any
disability or dependency equivalent to some cause prescribed or
recognized by the pension laws of the United States as a sufficient
reason for the allowance of a pension, shall be entitled to the
benefits of this act ; but it shall not be held to include any person
not within the rule of age or disability or dependence herein de
fined, or who incurred such disability while in any manner volun
tarily engaged in or aiding or abetting the late rebellion against
the authority of the United States.
Pensions to be at What Rate, Etc.
Section 2. That pensions under section one of this act
shall be at the rate of eight dollars per month, and payable only
from and after the passage of this Act, for and during the natural
lives of the persons entitled thereto, or during the continuance of the
disability for which the same shall be granted; provided, that
section one of this Act shall not apply to any person who is
receiving a pension at the rate of eight dollars per month or more,
nor to any person receiving a pension of less than eight dollars
per month, except for the difference between the pension now
received (if less than eight dollars per month) and eight dollars
per month.

10
Proof Required ; Perjury ; Names May be Stricken From
Pension Rolls for Fraud, Etc.
Section 3. That before the name of any person shall be
placed on the pension-roll under this act, proof shall be made,
under such rules and regulations as the Secretary of the Interior
may prescribe, of the right of the applicant to a pension ; and any
person who shall falsely and corruptly take any oath required
under this act shall be deemed guilty of perjury; and the Secre
tary of the Interior shall cause to be stricken from the pension-
roll the name of any person whenever it shall be made to appear
by proof satisfactory to him that such name was put upon such
roll through false and fraudulent representations, and that such
person is not entitled to a pension under this act. The loss of
the certificate of discharge shall not deprive any person of the
benefits of this act, but other record evidence of enlistment and
service and of an honorable discharge may be deemed sufficient ;
provided, that when any person has been granted a land-warrant,
under any act of Congress, for and on account of service in the
said war with Mexico, such grant shall be prima facie evidence of
his service and honorable discharge ; but such evidence shall not
be conclusive, and may be rebutted by evidence that such land-
warrant was improperly granted.

APPENDIX "C."
Act of June 27, 1890, as Amended.
AN ACT in amendment of sections two and three of an Act
entitled ' ' An Act granting pensions to soldiers and sailors
who are incapacitated for the performance of manual labor,
and providing for pensions to widows, minor children and
dependent parents, ' ' approved June twenty -seventh, eighteen
hundred and ninety.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That sections two
and three of an Act entitled ' ' An Act granting pensions to soldiers
and sailors who are incapacitated for the performance of manual
labor, and providing for pensions to widows, minor children and
dependent parents," be, and the same are hereby amended so as to
read as follows :
Section 2. That all persons who served ninety days or more
in the military or naval service of the United States during the
late war of the rebellion and who have been honorably discharged
therefrom, and who are now or who may hereafter be suffering
from any mental or physical disability or disabilities of a perma
nent character, not the result of their own vicious habits, which
so incapacitates them from the performance of manual labor as to
render them unable to earn a support, shall upon making due
proof of the fact, according to such rules and regulations as the
Secretary of the Interior may provide, be placed upon the list of
invalid pensioners of the United States, and be entitled to receive
a pension not exceeding twelve dollars per month and not less
than six dollars per month, proportioned to the decree of inability
to earn a support; and in determining such inability each and
every infirmity shall be duly considered, and the aggregate of the
disabilities shown be rated, and such pension shall commence
from the date of the filing of the application in the Bureau of
Pensions, after the passage of this Act, upon proof that the
disability or disabilities then existed, and shall continue during
the existence of the same :
Provided, That persons who are now receiving pensions under
existing laws, or whose claims are pending in the Bureau of Pen-

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sions, may, by application to the Commissioner of Pensions, in
such form as he may prescribe, showing themselves entitled
thereto, receive the benefits of this Act; and nothing herein con
tained shall be so construed as to prevent any pensioner there
under from prosecuting his claim and receiving his pension under
any other general or special Act.
"Provided, however, that no person shall receive more than
one pension for the same period ;
And provided further, that rank in the service shall not be
considered in applications filed under this Act."

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