Evening star. [volume] (Washington, D.C.) 1854-1972, 1884-11-15

The court-martial convened by direction OF the
PRESIDENT to hear and try the charges preferred
against Judge Advocate General Swain by Major
Scott judge advocate of the court or inquiry which
several months ago heard the charges preferred
against Gen Swain by Mr.. A. E. Bateman. the
banker OF this city. met in this city this morning.
Inc Ioiowing- named officers compose the detail OF
the court: Major Gen. ]. NJ. Schoheid; Brig. Gen.
a. b. Terry; Brig. Gen. Nelson A. Miles, Brig. Gen.
Gen 8. B. Holaplrd, qaartefmas;er gen.
eral: Brig. Gen. Robert Murray, surgeon
general; Brig Gen. John Newton. chief q
l. Andrews, s5th infantry Col. J. r. Brooke, Sd
infantry; Col l. p. Bradley, 18th Infantry: Col. r.
B. Ayres % artillery; Col Il NJ Black, s3d infantry
with Major A. B. Gardner as Judge advocate
Gen swain appeared before the court, accom-
panied by Judge Shellabarger, of this city, whom
would be assisted by Mr. Jere. Wilson, and Gen.
Charles h Grosvenor, OF Ohio.
On the opening OF the session OF the court Gen.
SWAIN raised the question OF the jurisdiction OF the
court He presented motion stating I'm substance
that ne appeared before the court not asserting to
the jurisdiction OF the court. but solely ror the
ing that the court dismiss the charges and the pros
eeutlon thereof for want OF jurisdiction. Il also
an officer OF the army Of the United states, aud
Judge advocate general OF such army, OF the rank
OF brigader general, bis commander being the leu-
tenant general OF the army, the President is not
empowered to appoint court-martial to try
charges preferred against him unless such charges
are preferred by HIS commander, and that it APP
pears from the orders converting the court that it
was appointed by the President by special order
try charges preferred by Major Scott and not pre-
ferred by Gen. Swafm'S commander.
Following the presentation OF this motion Judge
Shellabarger, OF counsel for the accused addressed
the court In support OF the motion. He said that
it was not claimed that the President was en-
powered by the articles OF war to convene tbs
court, but that 1t was asserted that the power TO
convene such courts inhered in his office or com.
man0er.10~Cntof or the army of the United STATES
He directed his argument to show that such power
was not conferred upon the President as COM
mander-fn-chief Of the army by the Constitution
or by Statute, and that consequently this court
was Illegally constituted.
MAI. Major Gardner the Judge advocate OF the court
the power to convene general courts-nartia was
herent In the office OF commander-in. chief
Of sfr the a ahni Of the United States and
the Congresses since the adoption Of the
constitution had accepted this authority. He
said. also. that there were many precedents in
support Of this position. and cited a number OF
cases In which general officers had been tried by
courtsmartial convened by direction Of the Presi-
cent upon charges preferred by persons other than
Judge shellabarger replied that the question OF
the authority OF the President had not been raised
I'm the cases cited by Ma1o Gardner but that hay-
ing been raised In this case it is the duty OF the
court to decide 1t without accepting precedents
rass He which 1sred to had the not Dssa
by congress, in many instances, OF the power
to imprisor persons for contempt OF its authority
until that authority was questioned in the Kill
bourne case, when the Supreme Court OF the
United States decided that Congress had not such
authority as it had exercised in that case, and put
astop to the practice.
THE PLEA NOT SUSTAINED.
Following Judge Shellabarger's remarks the
court room was cleared while the court considered
the plea On the reopening OF the doors the judge
advocate announced by direction OF the court that
the plea Of want OF jurisdiction had not been sus-
tanned.
At the request OF Gen. Swain, whose counsel
had not returned to the court ROOM the court then
took recess until Monday morning
large number OF army officers were present In
the court, as were also Mr. Bateman. who preferred
the original charges against Gen. Swain. MT Jeff
Chandler, who appeared as counsel for Mr. Bate
man before the court OF inquiry, and Major Scott,
VINO was judge advocate OF the court OF inquiry.