The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-02-25

vi Llle o6COi1ut CIdi 81 AAS 5ASS. ~
duty" in failing 10 report the facts
concerning Colonel Morrow's pay. ac-
counts, 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 considering the findings and SEN
tence returned the record of the pro-
ceedings to the court with the following
comm unication:
EXECUTIVE MANSION, Feb. II.
The record in the foregoing case of
Brigadier-General David G. Swain,
judge Advocated General, United States
ARMY, is hereby returned to the gen
eral court martial, before which the
proceedings were had. for reconsider
alton, as to the findings upon the first
charge only, and as TO the sentence,
neither of which are believed to be com
mensurate with the offenses as found
by the Court in the first and third
specifications under the first charges.
The attention of the Court IS invited to
the accompanying communication OF
the Attorney General, under date of
the 10th inst, whose views upon the
matter submitted for reconsideration,
have my concurrence.
[Signedl CHESTER A. ARTHUR.
The communication of the Attorney
General is long review of the whole
| case and a criticism of the findings OF
! the court, in which he expresses the
! oninion that General Swain should
have been found guilty of the first
i charge.
The court reconYened upon the return
to it of the findings, and having recon
sidered its previous action, adhered to
/ its finding upon the first charge, re-
marking therein as follows: The
court. upon mature consideration, has
/ not found the accused guilty OF such a
degree of wrongful or deceitful conduct
as to Justify the finding of him guilty OF
conduct unbecoming an officer and
gentleman, and has therefore, respect
4 fuIlv. adhered to its findings
upon the first charge" But
adjudged the following sentence: ITO
be suspended from rank and duty for
one wear, with a forfeiture of al pay tor
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 AdYocate-GeneraPs depart
. ment"
The record of the proceedings having
been submitted to the President, it was
again returned 10 the court for reasons
set forth in the following endorsement
placed thereon: s9
EXECUTIVE MANSION. Feb. Ii.
The record in the following case O.
Brigadier-General David G. Swain
Judge advocate General, OF the United
States of America, is hereby again re
turned to the general court martial, be
fore which proceedings have been had
q for q reconsideration of the amended
, sentence, as set forth in the proceeding
. had upon a reconsideration O
the original findings and sentence
1t is apparent from the terms OF th'
tamended sentence that it was the inten
!, ton of the court to award punishment
of greater severity and more nearl,
commensurate with the offences which
the accused has been found guilty, thai
was finally adjudged in the origina
proceedings, and if the terms OF thu
amended sentence were such as eoul
be legally carried out, the purpose 0
the court in that regard would hav
been accomplished. The provision
however, that the accused shall, ate
suspension for a period of one yea
!. from rank and duty in the office nov
I held by him, be placed III another offic
of lower rank in the department o
which office now held by him IS
part, is one impossible of enforcement
> BY the Executive alone. That Office c
the lower rank can only be filed in tn
= method pointed out by the Constitution
namely: Nomination by the Presiden
and confirmation by the Senate, an
then only in case of anexisting vacancy
The amended sentence, in effect, create
an office and fills it, thus at once en-
Il bodying the exercise of legislative an
|. executive functions and approving th
power of the Senate. 1t is necessar
: element of sentences OF courtmartl4l
: that they shall, on approval OF the al
pointing power be capable OF enforc'
ment by Executive authority charge
with that duty. So much of the amend
ed sentence as relates to changing th
accused from one Office to another,
u not of that character. AT the te
Il minatior of the period of suspensio
|. indicated, the accused could only
u put into the Office of the Judge-Ady'
5 cate in the manner hereinbefore ind
;. Gated, and by new commission whic
( he might accept, or decline; but,
q there should be no vacancy he coul
b not be put into it atall, and his presel
s Office could not be filed until after
ID should have been vacated The const
tutionaI power of the Executive in fl
ing vacancies, cannot be restricted
individuals, and while the ed artic
of war authorizes the court to exerci
S its discretion in awarding punishment
a the discretion exercised must at lea
IS be bounded by the possibility of Il
t. sentence proposed being carried in
effect, without dependence on chan
or change in the laws.
(Signed,) CHESTER A. ARTHUR.
10 The court thereupon revoked j
~ former sentence, and judged as follow
=, =, ITO be suspended from rank and du
IT IT for twelve years and to forfeit one-h,
40 his pay for every month of the san
: period" 5