The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1885-03-06
The SWAIN SENTENCE.

S6ntSAO3,
WASHINGTON. February 25.-The find
ings of the Court Martial in the case Of
Judge Advocate General Swain and sen
tence Of the court as finally approved by
President Arthur were made public last
evening. On the first charge, conduct unbe-
coming an officer and gentleman" the court
finds General Swain not guilty, but guilty
of conduct to the prejudice of good order
and military discipline. On the charge of
neglect of duty" in failing to report the
facts concerning Colonel Morrow's pay &C
couAts, not guilty. On these findings the
court sentenced the accused ito be sus-
pended from rank, duty anu pay for three
years" The President after examining and
considering the findings and sentence, re-
turned the record of proceedings to the
court with the following communication:
EXECUTIVE MANSION. February 1.-THE rec
ord in the foregoing case of Brigadier Gen.
eral David q. Swain, Judge Advocate Gen.
eral of the United States army, is hereby re-
turned to the General Court Martial before
which proceedings were had for reconsider.
alton as to the findings upon the first charge
only, and as to sentence, neither of which are
believed to be commensurate with the
offenses as found by the court in the first
and third specifications under the first
to the accompanying communication of the
Acknowledgement under date 10th instant,
whose views upon the matter submitted for
reconsideration have my concurrence.
lSigned.l CHESTER A. ARTHUR
The communication of the Attorney Gen.
eral is long review of the whole case and
criticism of the findings of the court, in
which he expresses the opinion that General
Swain should have been found guilty of the
first charge. The court reconvened upon
the return to 1t of its findings, and having
recOnsidered its previous action, adhered to
its finding upon the first charge, remarking
thereon as follows: The court upon mature
consideration has not found the accused
guilty to such degree of wrongful or de-
eeitful conduct as TO justify finding of
guilty of conduct unbecoming an officer and
gentleman, and ha. therefore respectfully
adhered to its findings upon the first charge,
but returns the following sentence: ITO be
suspended from rank and duty for one year
with forfeiture of all pay from 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 AdvO-
cate Generals Department" The record of
the proceedings having been submitted to
the President, was again returned to the
court for reasons set forth in the following
endorsement placed thereon:
EXECUTIVE MANSION. February 24-Record
in the following case of Brigader General
David g. Swain, Judge Advocate General of
the United States of America. is hereby again
To he al No. tel h.
fore which proceedings have been had for re-
of original findings and SEN
tence, IL is apparent from the terms of the
annexed sentence, that it was the intention
of the court to award punishment of greater
severity, and one nearly commensurate with
the Ofrenses which the accused has been
found guilty than was penalty adjudged i'm
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 &C.
complished. The provision that the accused
shall, after suspension for the 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 Office now held by him is part, is one
impossible of enforcement by the executive
alone. The Office of lower rank can only be
hlied in the method pointed out by the con-
stitution-namely, nomination by the Presi-
aent and confirmation by the Senate, and
then only in case of an existing vacancy.
The amended section In effect creates an Of
ice and fills it, thus at once embOdying the
OF legislative and executive func-
tons and the approving power of the Senate.
II is necessary element of the sentences Of
courts martial that they shall. on approval of
the appointing power, be capable of enforce
ment by the executive authority charged
with that duty. SO much of the amended
"a relates to changing the accused
from one Office TO another is not of that
character. At the terminal on of the period
Of suspension indicated the accused could
)nly be put into the Office of q Jud4e-Adyo-
cate in'the manner hereinhef0re indicated
md by new commission which he might
accept or decline, but if there should be no
racancy he could not be put into il at all,
md his present Office should not be filled
until after it should have been vacated. The
power of the executive i'm I'LL
ng vacancies can not be restricted to iudi-
RITUALS, and while the sixty-secOnd article of
var authorizes the court to exercise discre-
ion IN awarding punishment, the discretion
exercised must be at least bounded by the
possibility of the sentence proposed being
carried into effect without dependence of
chance or change in laws.
lSgned.l CHESTER A. ARTHUR.
The Court thereupon revoked its former
sentence and adjudged as follows: ITO be
suspended from rank and duty for twelve
-earS, and to forfeit One-half his mOathly
,ay every month for the same period" This
sentence the President approved with
he following comments:
EXECUTIVE MANSION, feDrunry A.-Ihe
opinion of the President as a proper conse-
luencc of the findings of the fact made by
he Court in the within record has already
,een given, and no further comment will be
made upon the final sentence than to say IL |
5 difficult to understand how a court could
'e willing to have an officer tried and re-
aimed as pensiOner upon the army register
While 1t expressed its sense of his unhtness
o perform the duty of his important Office
" the imposition of two different sentences
Inder which he would be deprived per
of his functions. The idea that
m Office like that of. Judge Advocate |
General should remain vacant in effect for |
welve years merely to save part of its |
to its incumbent under such cir |
umstances would seem to come from invcr- |
ion of proper relations in public Offices, |
nd those holding them, and is an idea not |
uted to our institutions. While holding |
he views now and heretofore expressed. il |
: deemed to be for public interest that the |
proceedings in this case be not without re- |
ult, and therefore the proceedings, findings |
nd sentence in the foregoing ease of |
;riRadier General David q. Swain, Judge |
army. are approved and sentence will be
uly executed.
tSignedl CHESTER A. Arthur
General Swain may be placed on the re-
ired list December 81, 1896. 1t will be no
iced that the sentence of the court as ap-
roved by the President suspends him from
flee up to and beyond the date of his pos
lille retirement Tile trial of General
VAIN on the charge of having violated the
;xtieth article of war in having sold forage
sSued TO him for his personal use, resulted
4 un honorable acquittaL. The President
$50 approved the findings and sentence of
he court martial in the case of Colonel
borrow, by which the latter is deprived Of
II right to advancement in his grade for
wO years.
Broke the Cable.
PITTSBURGH, Pa, February 25---Yester-
ny morning two loaded coal ears weigh