The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1885-03-05
The SWAIN SENTENCE.
Afser Various Attempts TO Fix it Up
Sentence in General Swsim's Case Is Fir
nally Reached Which the President Ap-

WASHINGTON, feDIuary 20.-lne nTd-
ings of the Court Martial in the case of
Judge Advocate General Swain and sen
tence of the court as finally approved by
President Arthur were made public last
coming an officer and gentleman" the court
finds General Swain not guilty, but guilty
of conduct to the prejudice of good order
and military discipline. On the charge of
neglect of duty" in failing to report the
facts concerning Colonel Morrow's pay ac-
counts, not guilty. On these findings the
court sentenced the accused Ito be sulS-
pended from rank, duty and pay for three
years" The President after examining and
considering the findings and Senteace, re-
turned the record of proceedings to the
court with the following communication:
EXECUTIVE MANSION, February 1.-THE rec
ord in the foregoing case of Brigadier Cen
eral David G. Swain, Judge Advocate Gen.
eral of the United States army. is hereby re-
turned to the General Court Martial before
which proceedings were had tor reconsider
alton aS TO the findings upon the first charge
only, and Us to sentence, neither of which are
believed to be commensurate with the
OffenScS as found by the court in the first
and third specifications under the first
charge. The attention of the court i invited
to the accompanying communication of the
Acknowledgement under dals 10th instant,
whose views upon the matter submitted for
reconsideration have my concurrence.
lSigned.l CHESTER A. ARTHUR.
The communication of tae Attorney Gen
cral is long review of the whole case and
criticism of the finding. of the court, in
which he expresses the opinion that General
Swain should have been found guilty of the
first charge. The court reconvened upon
the return to it of its findings and having
recOnSidered its previous action, adhered to
its finding upon the first charge, remarking
thereon as follows: The court upon mature
consideration has not found the accused
guilty to such degree of wrongful or de-
ceitful conduct as 10 justify finding OF
guilty of conduct unbecOming an officer and
gentleman, and has therefore respectfully
adhered TO its findings upon the first charge,
Out returns the following sentence: ITO be
suspended from rank and duty for one year
with forfeiture of all pay from the same
! period, and at the end of that period to be
/ reduced to the grade of Judge Advocate
with the rank of Major in the Judge AdvO-
J cate Generals Department" The record of
! the proceedings having been submitted to
! the President, was again returned to the
| court for reasons set forth in the following
! endorsement placed thereon:
/ EXECUTIVE MANSION, February 24.-BecOrd
/ IN the following case OF Brigadier General
| David G.. Swain. Judge Advocate General of
! the United States of America Is hereby again
returned TO the General Court Martial be-
/ fore which proceedings have been had for re-
! consideration of original findings and SEN
D - j. rct,f From no To- n
| annexed sentence, that it was the intention
! Of the court to award punishment of greater
/ severity. and one nearly commensurate with
! the OdenSeS which the accused has been
I found guilty than was penalty adiuhged in
| the original proceedings; and II the terms OF
I the amended sentence were such as could
| be legally carried out, the purpose OF the
! court in that regard would have been ac-
| cOmplished. The provision that the accused
7 snail, after suspension for the period
! of one year from rank and duty in the
! office now held by him, be placed i'll another
| office of lower rank i'll the department OF
/ which Office now held by him is part, iS one
! impossible of enforcement by the executive
J alone. The office of lower rank can only be
! HIled in the method pointed out by tue con
| stitutiOn-namely. nomination by the PreSl-
/ fent and confirmation by the Senate, and
! then only in case of an existing vacancy
! The amended section in effect creates an Of
| ice and fills il, thus at once embOGying the
| exercise OF legislative and executive func-
tiOns and the approving power of the senate
| Ii is Il necessary element of tie sentences Of
| courts martial that they shall. on approval OF
the appointing power, he capable of enforce.
mCnt by the executive authority charged
| with that duty. So much of the amended
| sentence IL relates 10 changing the accused
| from one office 20 another is not of that
| character. At TIE termination of the pcriOC!
| of suspension indicated the accused could
| only be put into the office of Il JudEC-AdvO-
| cate i'll the manner hercinbcfOrc Indicated
| and by new commission which he might
accept or decline, but if there should be no
| hs,T mot i.a tT all
| and his present Office should not be filled
until after it should have been vacated. The
! constitutional power of the executive i'll NIL
ing vacancies can not be restricted to lndl-
| yidUaIs and while the SiXty-secOnd article of
| war authorizes the court to exercise discrc-
ton III awarding punishment. the discretion
exercised must he at least bounded by the
possibility of the sentence proposed being
carried into effect without dependence OF
ISigned.l CHESTER A. ARTHUR.
The Court thereupOn revoked its former
sentence and adjudged as follows: 10 lie
suspended from rank and duty for twelve
years, and to forfeit One-half his monthly
pay every month for the same period This
sentence the President approved with
tle following comments:
EXECUTIVE MANSION. February 24.-ThC
| opinion OF the President as II proper cOnSC
| uuence of the findings of the fact made by
the Court i'll the within record has already
been given. and no further comment Will be
made upon the final sentence than TO say II
| : difficult to understand how Al court could
be willing to have an officer tried and re-
taincd as Il pensiOncr upon the army register
| while il expressed its sense of his untitneS>
TO perform the duty of his important office
| by the imposition of two different sentences
under which he would be deprived per
manently of his functions. The idea that
| an Office like that of Judge Advocate
General should remain vacant i'll effect fol
twelve years merely to save part OF IL
| emolumcnts to its incumbent under such CIR
cumStanceS would seem TO come from lnNer
! sion of proper relations in public offices
and those holding them, and is an idea not
| suited to our institutions. While holding
the views now and heretofore expressed, il
| is deemed to be for public interest that the
proceedings in this case be not without re
suit, and therefore the proceedings, findings
ard sentence in the foregoing case oi
Brigadier General David &. Swain. Judge
Advocate General of the United States
Army, are approved and sentence will be
duly executed.
lSgncd.l CHESTER A. ARTHUR
General Swain may be placed on the re-
tired list December -, 1896. 1t will be no
Iced that the sentence of the court aS APP
proved by the President sJIspendS him from
Office up to and beyond the date of his pos
sible retirement. The trial of General
Swain on the charge of having violated the
,ix;ieth article OF war in having sold forage
issued to him for his personal use, resulted
liz an honorable acquiital. The President
also approved tile findings and sentence OF
The court martial in the case OF Colonel
Morrow, BY which the latter IS deprived 0i
ali right to advancement in his grade fol-
two years.
Broke the Cable.
PETTsEUEGII, PA, February 25---Yester-
diy morning two loaded coal ears weigh
| .t,r,, F,,.N,-o t,,a ~ C1cfle