Evening star. [volume] (Washington, D.C.) 1854-1972, 1889-01-21
JUDGE-ADvOCATE
The Talk About Gen. Swaim's Retire
ment and His Successor.

The result Of the Swain retiring board il
still secret. officially, known to few officers
of the army, the Secretary of War and, pre-
sumably, the President. While general opinion
is that the board has recommended Gen.
Swaim's retirement on grounds of disability,
there is growing sentiment that the prece-
dent that would be established by such course
would be very bad. and that it il
not altogether unlikely that the gen.
erals statement that he feels in perfect
health may have caused the board to reflect as
to the results of the example that would be set
by his retirement, and that they have conse-
quently submitted an adverse report. The
senior members of the board, Gems Benet Mac
feely and Holabird, are all old officers. rapidly
approaching the statutory age of retirement,
and it is whispered they undoubtedly perceive
that If they establish this precedent of retiring
|. a practically well man on the ground of inca
pacity, they are jeopardizing the status not
only OF themselves but of all other officers in
the army.
THE LEGAL POINTS IN THE CASE
Meanwhile the discussion of the legal points
that the case evolves continues among the
officers. 1t is generally thought that the weight
of the law is against the power of the Presi-
dent to appoint Gen. Black or any other
civilian to the vacancy-shOuld one occur
An act OF Congress of 1852 created the Office
OF Judge-advocate-general of the army, and ex-
Postmaster-general Holt was appointed to the
position. There were no other officers under
him in the regular army, but the act per-
mltted one judge-advOcate in every army corps.
This continued until an act of 1866 created the
bureau of military justice consisting of Judge
advocate-general( Holt and one assistant judge
acknowledgement Mckee Dunn: the former
held the rank of brigadier general and the latter
that of colonel. This act also permitted the
retention in service of the judge-advocates
then In Office, not to exceed ten. The depart
ment continued under this organization until
1869. when the number of iudge-advocates
(majOrs) was fixed at eight.
In 1874. act of June %, the bureau was re-
organized with. .onej udge-advocate-ge and
an assistant, and in the corps of judge-advo-
Gates no appointments were to be made until
the number was reduced to four which was
thereafter to be the permanent number of Off
GERS IN the corps. By the act of 1884 the bu-
reau ofonilitary justice and the Office of judge
acknowledgement were merged. to be known as
the Observation-Disclosures department., the
officers to consist OF one Observation-Disclosures
eral (br1gadler), one assistant (coloneD, three
advocates (majors) which is the present organ
iZation.
THE FIRST PROMOTION.
Gen. William Mckee Dunn was made major
and judge-advocate of volunteers March 10,
1863 and at the time of his promotion to be
judge-advocate-general, December l. 1875 was
colonel and assistant judge acknowledgement,
he having been appointed to that Office from
major and judge-advocate in june 1864. David
e. Swain was seventh in rank among the ma
Jors and judge-advOcates at the time of his APP
pOintment, February 49, 1881, to the head of
the corps. 1t will thus be seen that
THE ONLY CIVILIAN
appointed to be acknowledgements was
(nan HnIt rhs, ,nS4 of4saz II
organic act. Some doubt has been expressed
as to the applicability to the present case of
the section of the army regulations (25) to the
effect that general officers" shall be appointed
from the army, it being argued that the Judge
acknowledgement is not, strictly speaking, a
general officer"
GENERAL OFFICERS.
SCOTS Military Dictionary. an authority in
its line, defines general officers to be all officers
above the rank of colonel. In the case of staff
officers the rank is an incident to the office and
1t is claimed that regulation % refers to officers
proper in the line and not to those who hold
such rank by virtue of staff positions On the
other hand it is held that a relative rank car
ries with it all the rights, emolument and
privileges of absolute rank, and the best au-
thorities uphold the idea that a staff officer is
included in the meaning of the regulation.
PROMOTIONS IN THE STAFF.
Section 1904, of the Revised Statutes pro-
vides that promotions in the staff of the army
shall be made in the several departments and
corps respectively" This dates from 1914
An exception is made in section 1888 dating
1860 in the cases of quartermaster-general
COMMENCEMENT urgeon-general, paymas-
ter-general, chief of engineers, and chief of
ordnance, who shall be appointed by selec-
ton from the corps in which they belong"
The udge-advocate- general not being included
III this exception it legally fol-
lows, it is held, that the general
rule laid down in 1914 governs the
filling of that office. question arises to
the meaning of the word promotion which
occurs in this rule. One definition is that ''in
military matters the word promotion signifies
the elevation Of an individual to some APP
pointmeut of greater rank and trust than the
one he holds" In the practice of the Ameri-
can army the technical meaning of the word is
1.-The advance of an officer from one grade to
the next higher in the military state"
Had this law been looked up and adhered to
jumped over the heads of six majors above
him to be judge-advocate-general
The appointment of Gen. Rosseau in 1867 to
be brigadier-general from civil life was, it is
learned. made by President Johnson by virtue
OF an act OF Congress approved in 1866. per-
hitting the appointment of certain number
of general officers in the regular establishment
the number to be apportioned among the loyal
states with reference to the number of troops
furnishe dhiuring the war.
THE FOURTH OF MARCH.