Evening star. [volume] (Washington, D.C.) 1854-1972, 1889-01-15
The Status of General Swain.

To the Editor of The EVENING STAR:
The contrariety of opinion touching the case
Of Gen. Swain is partly due to the fact that the
legal questions involved have been, for the
most part, inconsiderately discussed by gentle
men Of ''yast transformation and great legal
requirements"
In December last published an article in
The STAR relative to the organization of the
bureau of military justice, the appointment of
the judge-advocate-general &c. / now pro-
pose to correct misapprehension on the part
Of some OF your correspondents as to the power
OF the President, with the concurrence of the
Senate. to remove military officer.
The authority of the executive branch of the
government to effect such removal. with the
advice and consent of the Senate, has been re-
peatedly declared by the Acknowledgement and
the Supreme Court of the United States. In
fact prior to the act of July 13. 1866. the Presi
dent exercised the kingly prerogative of abso-
lutte dismissal. In the case of Randolph it was
held by Acknowledgement Legare that the
President had the power to cause a m litary
officer to be stricken from the rolls without
trial by court-martlal, notwithstanding de-
cision in his favor by a court of inquiry ordered
for the investigation of his conduct.-4 Op. PIP.
i; 612; henfs Com. $40. In the case of Lam
sing, Acknowledgement Cushing saws: Il am
not aware of any ground of distinction in this
respect, so far as regards the strict question of
law between officers of the army and other
officers of the government. As general rule,
with the exception of judicial officers only,
they all hold their commissions by the same
tenure IN this respect. 1t is no answer
to this doctrine to saw that officers of the army
are subject to be deprived of their commits
sions by the decision of cOurtmartial. SO are
civil officers by impeachment."-6 Op D. 4. See.
also, opinion of Mr.. Cushing. 3 OPP. 223. holding
that the President possesses constitutional
power to dismiss officers of the army or navy.
co-extensive with his power to dismiss execu-
tive or administrative officers in the civil ser
vice OF the government. See also IL Op. All:
10 Op. Al. Since the act of July 49, 1866. pro-
yldlng that mo officer IN the military or naval
service SHALL in time of peace be dismissed
from the service except upon and in pursuance
OF the sentence of court-martial TO that effect.
or in communication thereof" GA Stat 92). re-
movals can only be effected by appointment
and confirmation. See case of McEbdtt, 1O2
Reports Sup. Ct. Z. s. p. 426; the case Of Blake,
103 Id. 236; the case Of Keyes. 100 H. 336: the
case of RIfIlkte, l22 H. SIS.
The authorities are, therefore. clear and
cumulative that an officer of the army or navy
as well as an officer in the civil service of the
United States may be removed by the appoint
ment Of a successor by the President with the
concurrence of the Senate.
The condition of the Office under discussion
is anomalous and novel. The chief of tho
bureau Of military justice is not only disquali-
fed to perform the functions of his office but
Is rendered more than useless for the space of
twelve years! Ordinarily. pensions are granted
by grateful government for meritOrious SER
vice. In this remarkable exception yearly
pension of about =, 500 Is given as a reward
FOR conduct unbecoming an officer and a gen
tleman, or rather, as an annual compensation
for being relieved from duties which he was
found unit to perform. In other words "a
premium of $50 000 IN round numbers is given
70 him for not deyotIng any part of his time to
the service of the government. with the privi-
lege Of devoting the whole of it to his own
private interests. Besides, precaution was
taken that the present judge-advocate-general
should never again have the care and response
bility of his office, for the period of his sus-
pension extends one year beyond the time
when officers with honorable records are re-
quired by law to retire from active service.
LAWYER