Savannah morning news., 1885-02-25
SWAIM'S C0URT-MARTIAL
THE PRESIDENT TWICE RE
JECTS THE FINDINGS.

The Third Decision Approved-Sus-
pended from Rank and Duty and a
Pensioner on the Army Register for
Twelve Years at Half Pay-The Presi-
dents Comments.
WASHINGTON, Feb. 24.-The findings
of the court martial in the case of Judge
Advocate General Swain, and the SEN
| tence Of the court as finally approved bv
the President, were given to the press to-
day. They are accompanied by a long
opinion of the Attorney General, in the
nature Of review, and by three success
sive communications from President Ar
thur. OF the latter, the first two disap-
prove the successive sentences of the
| court, and the third approves the sem
tence which the court finally decided
upon after the papers had twice been
sent back to it for revision and reconsider
alton.
The first sentence of the court martial
was suspension from rank and duty and
pay for three years. The President returned
the findings and sentence to the court
with the suggestion that the punishment
was not commensurate with the Offense
of which the court had found Swain
guilty. The court recOnsidered its pre-
vious action, adhered to its finding, but
adjudged the following sentence:
To be suspended from rank and duty for
one year, with forfeiture of all pay for the
same period, and at end of that period to
be reduced to the grade of Judge A 'vocate
with the rank of Major in the Judge Advo-
cate Generals department.
The record of the proceedings having
been submitted to the President, was
again returned to the court for reasons set
in q fOI
thereon'
EXECUTIVE MANSION, Feb. IA, 1885.
The record in the following case of Brig.
Gen. David @. Swain, Judge Advocate
General of the United States Army, is hereby
again returned to the general court martial
before which proceedings have been had, for
reconsideration of the amended sentence AS
set forth IN the proceedings had upon recon-
slderatl0A of the original findings and SEN
tence. 1t is apparent from the terms of the
amended sentence that it was the intention
of the court to award punishment Of greater
severity and more nearly commensurate with
the ohenses Of which the accused has been
found guilty than was the penalty adjudged 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
III that regard would have been accomplished.
The provisions, however, that the accused
snail alt6r suspension for period of one
year from rank and dutyin the Office now
held by him, be placed in another Office of
lower rank in the department of which the
office now Is held by HIM is part, Is one impos-
slDle Oh enforcement by the executive alone.
That office OF lower rank can only
be filled in the method pointed out
by the constitution, namely. nOm-
nation by the President. and confirmation
by the senate. and then only in case of a eX-
lsIlng vacancy. The amended sentence in
elect creates an Office and fills it, thus at once
embOdying the exercise of legislative and eX-
ecutlYe functions and the approving power of
the Senate. 1t is a necessary element of the
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 10 the changing
OF the accused from one 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 Judge Advocate in the man
ner hereinbefore Indicated and by a 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 filed until after it should have
Deen vacated. The constitutional power Of
the Executive in filing vacancies cannot be
restricted to individuals, and while the second
article of war authorizes the court to exercise
lIs discretion in awarding punishment, the
discretion exercised must at least be bounded
by possibility of the sentence proposed be-
ing carried into effect without dependence on
chance or change in the laws.
CHESTER A. ARTHUR.
The court thereupOn revoked it's former
sentence and adjudged as follows:
To 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 MANSION, Feb "a, 1S85.-The
opinion of the President as to the proper con-
sequence 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 than to say that it is
hOwr f1n
could be willing to have the
officer tried retained as pensioner
upon the army register, while it expressed its
sense of bis unhtness to perform the duties of
his important office by the imposition OF two
different sentences, under either of which he
would be deprived permanently of his func-
tlOns. The idea that an Office like that of
Judge Advocate General should remain va
cant 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 the
public Offices and those holding them,
and is an idea not suited to our in
stitutions. While holding the views now
and heretofore expressed, it is deemed to be
for the public interest that proceedings in this
case be not without result, and therefore the
proceedings, findings and sentence in the fore
going case of Brig. Gen. David G. SWAIN
jude Advocate General of the United States
Army. are approved and sentence viii be duly
executed. CHESTER \. ARTHUR.
Gen. Swain may be placed on the re-
that the sentence of the court as approved
by the President suspends him from office
up to and beyond the date OF his possible
retirement.
The trial of Gen. Swain on the charge
of having violated an article of war in
having sold the forage issued to him for
his personal use, resulted in an honorable
acquittal.
MORROW'S SENTENCE APPROVED.
The President to-day acted on the case
of Lieut.-COl. A. z. Morrow, of the Sixth
U. 5. Cavalry, who was tried by court
martial on the charge of duplicating his
pay accounts, and sentenced to forfeit all
right to advancement in his grade for a
period of two years, so that at the end of
that time he shall still be a junior Lieu
tenant-COlonel of cavalry The proceed
ings, findings and sentence in this case
were approved by the President. Two
Colonels of cavalry will retire during the
period covered by Lieut.-Col. MorrOw's
sentence, from whose retirement he will
of course derive no benefit.
ASSERTING HTs TNNOCENCE