The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-02-25
THE CASES AGAINST SWAIN.
He Is Suspended from Rank and Duty
for q Period of Twelve Years,
And the Forfeiture Of Half His Pay Ordered
The Presidents Letters Concerning
the Finding and Sentence.
THE FIRST CASE.
Difficulty Of Making Sentence Which the
President Would Approve.

the court martial in the case of Judge ad
voeate General Swain, and the sentence
of the court as finally approved by Pres-
denr Arthur, were made public this evening
On the frat charge conduct unbecoming an
officer and gentlemanr-the court finds General
Swain not guilty, but guilty of conduct to the
prejudice Of good order and military discipline.
On the charge neglect of duty, in failing to
report the facts concerning Colonel Morrow S
pay accounts, not guilty. Upon these findings
the court sentenced the accused to be suspended
from rank, duty and pay for three years.
President Arthur, after examining and consid
ering the findings and sentence returned the
record of the proceedings to the court with the
following communication:
EXECUTIVE MANSION, Feb IL.
The record in the foregoing case of Brigadier
general David Ct. Swain, Judge Advocate
general. United States army, is hereby returned
to the General Court martial, before which the
proceedings were had for reconsideration as to
the findings upon the first charge only, and as
to the sentence, neither Of which is believed to be
commensurate with the offenses as found by the
court In the first and third specifications
under the first charge The attention of the
court is invited to the accompanying communica
ton from the Attorney general, under date Of
the 10th inst, whose views upon the matter, as
submitted for reconsideration have my concur
renee. CHESTER A ARTHUR"
The communication Of the Attorney general
is long review Of the whole case and q crit
icsm of the findings of the court, in which he ex-
presses the opinion that General S;vaim should
have been found guilty OF the first charge
The court reconvened upon the return to it of
the findings, and having reconsidered its prev
cd ~ fY1 irO no Gp-t
charge, remarking therein as follows.
''The court upon mature consideration. has
not found the accused guilty OF such degree of
wrongful or Geceitful conduct as justiies the
finding of guilty conduct unbecoming an officer
and gentleman, and has therefore respectfully
adhered to its findings upon the first charge, but
adjudge the following sentence: 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 of
judge advocate, with tho rank of major in the
Judge advocate Generals department"
The record of the proceedings having been sub
mitted to the President, was again returned to
court for the reasons set-forth in the following
Endorsement placed thereon:
''ExEcUTIvE MANSION, Feb. H.
''The record in the following case of Brigadier-
general David G. Swain, Judge Advocate general,
United States army is hereby again returned
proceedings have been had, for reconsideration
Of the amended sentence as set forth in the pro
ceedlngs had upon reconsideration Of the
original findings and sentence 1t is ap
parent from the terms of the amended
sentence that it was the intention of tie court
TO award a punishment of greater severity and
more nearly commensurate with the ofenses OF
which the accused had been found guilty than
was the penalty adjudged IN the original pro-
ceedines and if the terms of the amended cen
a : cOIIId he cd ~
the purnose Of the court in that regard would
have been accomplished. The provision how
ever that the accused shall, after suspension for
period of one year from rank and duty in the
Office now held by him, be placed in another
Office of lower rank in the department of which
the Office now held by him is o part
is one impossible of enforcement by
the executive alone The Office of lower
rank can only be filled in the method pointed
out by the Constitution, namely: Nomination by
the President and confirmation by the Senate,
and then only in case of an existing vacancy.
The amended sentence, in effect, creates an Of
flee and fills 1t, thus at once embodying the ex-
ercise of Legislative and executive functions and
opposing the power of the Senate. II is nee
essary element Of sentences of courts martial
that they shall, on approval of the appointing
power, be capable of enforcement by
the executive authority charged with
that duty. SO much of the amended
sentence as relates to changing the accused
from Office to another is not of that character
At the termination Of the period of suspension
indicated the accused could only be put into the
office of q judge advocate in the manner hereto
fore indicated, and by new commission which
he might accept or decline but if there should
be no vacancy he could not be put into it at all,
and his present office could not be filled until
after it should have been vacated. The consti-
tutional power of the executive in filing vacan-
cies cannot be restricted to individuals,
and while the sixtysecond article of
war authorizes the court to exercis 9
its discretion in awarding punishment, the dis
erection exercised must, at least, be bounded by
the possibility of the sentence proposed being
carried into effect without the dependence Of
chance Or q change in the laws.
CHESTER A ARTHUR"
The court thereupon revoked its former SEN
tence and adjudged as follows
$50 be suspended from rank and duty for
twelve years, and TO forfeit one-half Of his
monthly pay every month for the same period
This sentence the President day approved,
with the following comments:
.'ExEcUTIvE MANSION, Feb. "a
"The opinion of the President as to the proper
consequence of the findings Of fact made by the
court in the within record has already been
given. and no further comment will be made
upon the final sentence, except to say it is diff
cult TO understand how the court could be will
ing TO have an officer retained as pensioner
upon the army register while expressing its
sense or MS unntneSS TO perform the duties or
his important Office by the imposition
of two different sentences, under which
he would be deprived permanently
of his functions The idea that
an Office like that of judge advocate general
should remain vacant, in effect. for twelve
years, merely to save part of its emoluments
to its incumbent. under such circumstances,
would seem to come from an inversion of the
proper relations of public Offices and those hold
ing them, and is an idea not suited to our insti-
tutions. While holding the views now and here
tofore expressed. it is deemed to befA the public
interest that the proceedings in this case be
not without result and therefore the proceed
ings, findings and sentence in the foregoing case
of Briadier general David G. Swain, Judge
Advocate general U. S. A.. are approved. and
the sentence will be duly executed.
CHESTER A. ARTHUR
General Swain may be placed ON the retired
list Dec. 90, 1891. 1t will be noticed that the
sentence of the court, as approved by the Pres
ident, suspends him from Office up to and beyond
the date of his possible retirement.
Tho hoe OLE, 81 GnIt