Helena weekly herald. [volume] (Helena, Mont.) 1867-1900, 1885-03-05
The Sentence Of the Swain Court
Martial.

pcn. '"diLh anu the sentence Oi the court,
as finally approved by President Arthur,
wrre made public this evening. s.-
On the first charge, conduct unbecom-
ing an officer and a gentleman" the court
finds Gen. Swain not guilty, but guilty of
conduct to the prejudice of good order and
military discipline.
On the second charge, neglect of duty
in failing to report facts concerning Col.
Morow's pay accounts not guilty.
Upon these findings the court sentenced
the accused to be suspended from the rank
OF duty and pay for three years.
President Arthur, after examining and
considering the findings and sentence, re-
turned the record of proceedings TO the
court with the following communication /:
EXECUTIVE MANSION, February IL.
The record in the foregoing case OF Briga
dier Gen David G.. Swain, Judge Advo-
cate General L. :. A., is hereby returned
to the general 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 he commensurate
with the offences as found by the court in
the first and IL ird specifications under the
first charge. The attention of the court is
invited 10 the accompanying communica-
tion of the Attorney General, under date Of
the 10th inst, whose views on the matter,
submitted for my reconsideration, have my
concurrence.
tSignedJ CHESTER A. ARTHUR.
The communication of the Attorney
General is a long review OF the whole case
and criticism OF the findings OF the court,
in which he expresses the opinion that the
General should have been found guilty OF
the first charge. The court reconvencd
upon the return of il TO its findings and
have reconsidered its previous action, adj
hcrrcd TO its finding upon the first charge,
and remarked therein rs follows: The
court, upon mature consideration, has not
found the accused guilty to such degree of
wrongful or deceltful conduct rs 10 justify
the finding of guilty of conduct unbecoming
an officer and gentleman, and has there
fore respectfully adhered TO its finding
upon the first charge, but adjudged the
following sentence, TO be suspended from
the rank and duty for one year, with the
forfeiture OF all pay for the same period,
and at the end of that period TO be reduced
10 the grade of Judge Advocate, with the
rank OF Major, in the Judge Advocate
Generals Department"
The record OF the proceedings having
been submitted TO the President il was
returned 10 the court for the reasons set
forth in the following endorsement placed
thereon:
EXECUTIVE MANSION, Feb. IA, lsS5.
The record in the following case of Brig
Gen. David G.. Swain, Judge Advocate
General, L. ;. A., is hereby again returned
TO the general court martial before which
the proceedings were had for reconsidera-
tion. The amended sentence as set forth
in the proceedings had upon reconsidera-
tion OF the original sentence and findings. IL
is apparent from the terms OF the amend
ed sentence that it was the intention of
the court TO award "A punishment OF greater
severity and more nearly commensurate
with the offices OF which the accused had
been found guilty. than was the penalty
djudged in the original proceedings; and
if the terms of the amended sentence
were such as could be legally carried out,
the purpose of the court in that regard
would have been accomplished. The pro-
vision, however, that the accused shall,
after suspension for a period of one year
from rank and duty i'll the Office now held
by him, be placed in another Office OF
lower rank in the department in which The
office now held by him is part, is one i'm
possible of enforcement by the execu-
tive alone. That office Of lower rank can
only be filled in the method pointed out
-. IL -
the President and confirmation by the
Senate, and then only in the case of an
existing vacancy. The amended sentence
in effect creates an Office and fills il, thus
at once embodying the exercise of legisla-
tive and executive functions and approx
ing power OF the Senate. liz Is necessary
element OF sentences of court martials
that they shall on the approval of the APP
pointing power, be capable of enforcement
by the executive authority charged with
that duty.
so much of the amended sentence as re-
lates TO changing the accused from one
office to another is not OF that character
At the termination OF the period of sus-
pension indicated, the accused could
only be put into the Office of
Judge Advocate in the manner here
inbefore indicated and by a new COM
mission 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 Of
fee could not .e filled until after it should
have been vacated The constitutional
power of the Executive in filling vacancies
cannot be restricted TO individuals, and
while sthe ed article OF war authorizes
the court to exercise its discretion in award
ing punishment the discretion exercised
must at least be bound bv the possibility
of the sentence proposed being carried in
to effect without dependence on chance or
change in the laws.
signed CHESTER A. ARTHUR
The court thereupon revoked its former
sentence and adjudged as follows:
ITO 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 to-day ap-
proved with the following comments
EXECUTIVE NJ Ns'oN, February "a.
The opinion of the President as to the
proper consequences Of the finding made
by the ccart on the within record has al
ready been given and no further comment
will be made upon the final sentence than
10 say that 1T is difficult to understand
how the court could be willing to have an
officer tried and retained as q pensioner
upon the army register while 1t expressed
its sense of his unftness to pefform the
duties OF his important Office ay tn inn
position of two sentences under either of
which he would be deprived permanently
of his functions. The idea that an Office
like that of Judge eadvocate-General should
remain vacant in effect for IL years merely