New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1885-02-25
GEN. SWAIMS PUNISHMENT.
SUSPENSION FOR TWELVE YEARS.
PIT ON HALF PAY-ACQUITTED OF THE CHARGE De
SELLING GOVERNMENT FORAGE.

o. or,,., In the ease OF Judge AdvOcate General
sv;ro and tho sentepce OF the Court. finally ap-
proved by President Arthur were given 10 the press W
day They are accompanied by long opinion OF the
Attorney General in the nature OF review" ana d!
three successive communications from President Arthur
M the latter the first two dsapprove successive sem
OF the court the third approves the sentence
which the Court finally decided upon after the papers
had twice been sent back to 1t for revision and recon-
struction.
The charges preferred against General Swain were TWO
I'm number and were as follows: "Conduct unDecomhs
an officer and a gentleman. in violation OF the olst
Article of War; To sustain this charge there were Tour
specfcaons setting fourth the circumstances connecteu
with the memorandum given by the banker, MI Bate
man, to General Swain. and known rs
the "due bill" and the subsequent representations
made by General Swain to tho Secretary OF War WIN
regard TO the series OF transactions In which TINS que
bill figured The other charge was "Neglecto OF dutyh
vo,otion Of the God Article OF War" To sustain this
charge there was specification setting forth General
swans alleged failure to report to the war Department.
the facts which to his knowledge concerning the
duplication Implication OF ColOei A. r. Morrows pay
accounts. =.
The findings of the Court are very long and consist
of recaptulation OF all details OF the specifications
with what the Court finds to have been proved 20 far
as they relate to they are as foows vi the
first charge. not guilty. but guilty OF con,
duct to the prejudice OF good order anu
military discipline in violation OF the gu
Article OF War OF the second charge. not guilty
non these findings the sentenced the accused TO
be suspended rank. duty and pay for the period Oh
three years" a.,
President Arthur, after examining and considering Tie
findings and sentence returned the record VI proceedings
to the Court with the following communication:
FyFcrIIyE MANSION. Feb. II. 1883.
The record In the foregoing Of Bgader General
David O. swain, Judgr-Advocate General u; D a. -
hereby returned to the General Courtnartia before
vrhi. tLap
10 The findings Of the first charge only ana as % luo
tcncc neither of which are believed to he commensurate
with The offences as found BY the Court on the hst anu
third specifications under the first charge i hc ae,
of the Court is Invited the accompanying communism
tion OF the Attorney General, under date oi the iV
instant, whose views upon the matter suDhi''cu ''
iccoh'iue''''o" ""'' my CHESTER A. ARTHUR.
The communication Of Accomplishment breNs'e'
which follows calls attention to the power OF the ire'
dent to the Court for reconsideration Oh It's
notion with suggestions for its guidance Attention IL
then called to the that In lieu OF the charge CON
Of the 6lst Article OF war.-which these specifications
were intended TO h nere Of Good order and
military discipline in violation OF he o2I Article var
mo l.. think OF open to doubt But whether, IN view
OF specific facts actually fonnd by me Court IL hce
conduct unbccoming an officer and gentleman. ana
In su stituting therefor the words conduct TO tne
TO adnit OF very serious doubt" The first specification
OF charge contains substantial slegati% OF an a..
Batcmnn 4 Co The Court has found all the
ater fact. n, alleged %ST IN lni' ef i4%%
80 that in tho nndin. Of the Court The clause reads
Thus attempting to commit wrong upon said BaeInhn
CO.. and he finding further states In substance that
what the accused did IN I'M respect he az kho~hsy
and with knowledge Of tho facts. sex IN the manner
described TO Terpe,r'te wrong upon Bac'nan a 60:
Court finds he sought 10 commit and the fraud which
he was charged seeking 10 commit Is an cAceedingy
narrow one. such wrong deliberately planned ana
pcrpetrated would involve the same moral turpiiude.
whether 1t designated n frani or a. wrone aud
in event the offence would seem to a mhcb more
naturally aud appropriately under tho classh' aton
oi conduct unhcc coming an officer ana gentleman ,hh
IN the category OF oueccs To the prejudice OF g"od
order and military discipline
The third specification charges tho accused with
evnsivc uncandh and false and ~ calculating and In
tending 10 deceive the Secretary OF war
In the succeeding enumeration Of these PARTICULARS one
has been found the Court exactly charged three
renanier e Ia. been found not guilty After
T.yisTi"s that he ea%nos reSoncs Ss. eonca
sion with any recosnlz,d standard oil rl ,
onicrr ne rorr, ~. Who'll ne Saw seems TO
involve lowering Of that high standard OF honor
which from the earliest days been the pride and the
Glory OF our military service and which was expressed
ON n memorable occasion 10y the great 'onhandcF IN
Chief OF our Revolutionary Armc.: when r"lncianty
c1mpccd To rcprimaud u brother officer Ia these words
Our profession Is the chasicSt OF all even hr shadow oi
a fault furnishes the lustrc 81 our H- "'h"yr
think the record In the o Btlgadcr 'rh"riI DaN
swain. T. ;. A.. NAV win lr'prely be reerroi back
iniicated for further consideration aud revision"
The Court having reconsderod it, previous action. nd
hercd to it, finding upon the first charge. rcmarking
thereon a. follows The Court. upon mature consider
alton has not the accused guilty OF such degree Of
wrong or dcceitiul conduct - Justify a finding OF
guilty Of conduct unbcconine officer and gentleman.
and has therefore respectfully adhered To IT. ding
upon the first charge But they sentenced him To- be
suspended from rank and duty for one year.
with forfeiture OF all pay for the same period.
and at the end of that period TO be-
reduced to the grade Judge Advocate with the rank OF
Major In the Judge Advocate General- department The
record Of the proceedings. having been submitted the
president, was again returned 10 the Court FOR
set tn In the following endorsement placed thereon
Executive Mansion,
The record In the foregoing of
David j. SWAIN Judge Adv cate General United states
ARMY, Is hereby returned 10 the General Court
Martial before which the proceedings have been ha
reconsd, ration Of the amended 'cntcncr ~ set forth
IN the proceedings had upon rrcol liberation 81 the
1IS' - m" aIrended sentence thai was the Im,ti
of thc Court award punishment of greater severity
and more nearly commensurate with the offences OF
which the accused has found guilty than vas the
"rnnty admIgcd In the original pioccrdincsI and
II the terms OF the amended sentence were such
as could bo legally carried out the purpose OF the
Court ~ that regard would have been accomplish
The provision. however, that the accused shall after
suspension for the period OF one YEAR from rank aud
duty the office held by him. be placed In another
oifce of lower rank In the department OF
Sa4, n' o S'' % Dw I OF n a%,ocscn,
by the Executive alone. That office of lower rank can
only be Hlcd in the method pointed out by the Constir
| ton-naney, nomination by the Presnent ana con
uruann by the Senate, and then only ia ease of an
existing vacancy The amended sentence, III effect
creates an and nils IT, thus at embodyng the
exercise OF legislative and Executive functions aud The
approving power Of the Senate. II il =
necessary clement lof sentences OF Courts
the appointing power be capable of enforcement by the
| Executive authority charged with that duty 50 much
of the amended sentence relates Changing the ac
cursed office to another that Character
Al the termination Of the period of suspension Indicated
the accused could only be put into the Office Of Judge
| Advocate in manner hereinafter Indicated and law a
| new commission which lie might accent
| or dccline but II there should bs no
| vacancy he could DO nut mi.
A. al all and his present Office could not h uuod ,",1
after should have been vacated. The Constitutional
mower of the Executive IN ing vacancies cannot he
restricted to individuals and while the 62d Article ~
War authorizes the Court to exercise It's dr.,inn I'm
aw.rd " punishmcnt, the discretion ,,.rc.ot 49,. -,