The Constitution of the United States gives to Congress the
power to provide and maintain a navy, and to make rules for its
government.
In the exercise of this power, Congress provided for the
punishment of desertion and of other crimes not specified in the
articles, which should be punished according to the laws and
customs in such cases at sea.
Where a seaman was charged with deserting, and the court martial
found him guilty of attempting to desert, the Court had
jurisdiction over the subject matter, and an action of trespass for
false imprisonment will not lie against the ministerial officer who
executes the sentence for attempting to desert.
It is only where a court has no jurisdiction over the subject
matter, or, having such jurisdiction, is bound to adopt certain
rules in its proceedings, from which it deviates, whereby the
proceedings are rendered
coram non judice, that an action
will lie against the officer who executes its judgment.
The authorities upon this point examined, and also the legal
powers of courts martial.
Dynes was a seaman in the navy, who was tried by a court martial
upon a charge of desertion, who found him not guilty of deserting
but guilty of attempting to desert, and sentenced him to be
confined in the penitentiary of the District of Columbia at hard
labor, without pay, for the term of six months from the date of the
approval of the sentence, and not to be again
Page 61 U. S. 66
enlisted in the naval service. Whereupon the President of the
United States directed Hoover, the marshal of the district, to
commit him to the penitentiary.
The proceedings of the circuit court are stated in the opinion
of the Court.
Page 61 U. S. 77
MR. JUSTICE WAYNE delivered the opinion of the Court.
The plaintiff brought an action for assault and battery and
false imprisonment, charging that the defendant imprisoned him in
the penitentiary of the District of Columbia. The defendant pleaded
the general issue, and several special pleas, in which he denied
the force and injury and set up that he, as Marshal of the District
of Columbia, imprisoned the plaintiff by virtue of the authority of
the President of the United States in the execution of a sentence
of a naval court martial, convened under an Act of Congress of the
23d of April, 1800; which sentence was approved by the Secretary of
the Navy, which was final and absolute, and denying the
jurisdiction of the court. The plaintiff filed a
retraxit,
admitting that there was no battery other than the imprisonment in
pursuance of the sentence of the court martial.
The charge by the Secretary of the Navy was desertion, with this
specification:
"That on or about the twelfth day of September, in the year of
our Lord one thousand eight hundred and fifty-four, Frank Dynes
deserted from the United States ship Independence, at New
York."
He pleaded not guilty. After hearing the evidence, the court
declared,
"We do find the accused, Frank Dynes, seaman of the United
States navy, as follows:"
"Of the specification of the charge, guilty of attempting to
desert; of the charge, not guilty of deserting, but guilty of
attempting to desert; and the court do thereupon sentence the said
Frank Dynes, a seaman of the United States navy, to be confined in
the penitentiary of the District of Columbia, at hard labor,
without pay, for the term of six months from the date of the
approval of this sentence, and not to be again enlisted in the
naval service."
This conviction and sentence was approved by the Secretary of
the Navy, on the 26th of September, 1854. The prisoner was then
brought from New York to Washington, in custody, and the President,
reciting the trial and sentence, made the following order upon the
defendant, the marshal, in relation to carrying the judgment of the
court into execution.
"The prisoners above named the plaintiff, Dynes, being one among
others having been brought to the city, by direction of the
Secretary of the Navy, in the United States steamer
Engineer, you are hereby directed to receive them from the
commanding officer of said vessel and commit them
Page 61 U. S. 78
to the penitentiary in the District of Columbia, in accordance
with their respective sentences."
These facts formed a portion of the defendant's pleas, to which
the plaintiff demurred, pointing out the following causes of
demurrer:
1. Because the said court martial had no jurisdiction or
authority whatever to pass such sentence as that pleaded and set
forth in said plea.
2. Because the sentence is illegal and void.
3. Because the President of the United States had no
jurisdiction or authority whatever to write such a letter to the
defendant as that pleaded and set forth in said plea, nor in any
manner whatever to direct the defendant to commit the plaintiff to
the penitentiary in the District of Columbia, in accordance with
said sentence.
4. Because the said letter, and the said directions therein
contained, are unconstitutional, illegal, and void.
5. Because the said plea is altogether vicious and insufficient
in law, and wants form.
There was a joinder in demurrer and judgment for the
defendant.
This presents the question whether the defendant, as marshal,
was authorized to execute the direction to receive the plaintiff,
then in custody of the captain of the United States steamer
Engineer, to deliver him to the keeper of the penitentiary
of the District of Columbia.
The demurrer admits that the court martial was lawfully
organized; that the crime charged was one forbidden by law; that
the court had jurisdiction of the charge as it was made; that a
trial took place before the court upon the charge, and the
defendant's plea of not guilty; and that upon the evidence in the
case the court found Dynes guilty of an attempt to desert, and
sentenced him to be punished, as has been already stated; that the
sentence of the court was approved by the Secretary, and that by
his direction Dynes was brought to Washington; and that the
defendant was Marshal for the District of Columbia, and that in
receiving Dynes, and committing him to the keeper of the
penitentiary, he obeyed the orders of the President of the United
States in execution of the sentence. Among the powers conferred
upon Congress by the 8th section of the first article of the
Constitution, are the following: "to provide and maintain a navy;"
"to make rules for the government of the land and naval forces."
And the 8th Amendment, which requires a presentment of a grand jury
in cases of capital or otherwise infamous crime, expressly excepts
from its operation "cases arising in the land or naval forces." And
by the 2d section of the 2d Article of the Constitution it is
declared that:
Page 61 U. S. 79
"The President shall be Commander-in-Chief of the Army and Navy
of the United States, and of the militia of the several states when
called into the actual service of the United States."
These provisions show that Congress has the power to provide for
the trial and punishment of military and naval offenses in the
manner then and now practiced by civilized nations; and that the
power to do so is given without any connection between it and the
3d Article of the Constitution defining the judicial power of the
United States; indeed, that the two powers are entirely independent
of each other.
In pursuance of the power just recited from the 8th section of
the first Article of the Constitution, Congress passed the Act of
the 23d April, 1800, 2 Stat. 45, providing rules for the government
of the navy. The 17th article of that act is: "And if any person in
the navy shall desert or entice others to desert, he shall suffer
death, or such other punishment as a court martial shall adjudge."
The 32d article is:
"All crimes committed by persons belonging to the navy, which
are not specified in the foregoing articles, shall be punished
according to the laws and customs in such cases at sea."
The 35th article provides for the appointment of courts martial
to try all offenses which may arise in the naval service. The 38th
article provides that charges shall be made in writing, which was
done in this case. The court was lawfully constituted, the charge
made in writing, and Dynes appeared and pleaded to the charge. Now
the demurrer admits, if Dynes had been found guilty of desertion,
that no complaint would have been made against the conviction for
want of jurisdiction in the court. But as it appears that the
court, instead of finding Dynes guilty of the high offense of
desertion, which authorizes the punishment of death, convicted him
of attempting to desert, and sentenced him to imprisonment for six
months at hard labor in the penitentiary of the District of
Columbia, it is argued that the court had no jurisdiction or
authority to pass such a sentence -- in other words, in the
language of the counsel of the plaintiff in error, that
"the finding was
coram non judice, it being for an
offense of which the plaintiff was never charged and of which the
court had no cognizance. That the subject matter of the sentence,
the punishment inflicted, was not within their jurisdiction, and is
a punishment which they had no sort of permission or authority of
law to inflict."
But the finding of the court against the prisoner was what is
known in the administration of criminal law as a partial verdict,
in which the accused is acquitted of a part of the accusation
against him and found guilty of the residue. As when there is an
acquittal on one count and a verdict of guilty on
Page 61 U. S. 80
another. Or when the charge is of a higher degree, including one
of a lesser, there may be a finding by a partial verdict of the
latter. As upon a charge of burglary, there may be a conviction for
a larceny, and an acquittal of the nocturnal entry. So, upon an
indictment for murder, there may be a verdict of manslaughter, and
robbery may be reduced to simple larceny, and a battery into an
assault.
The objection is ingeniously worded, was very ably argued, and,
we may add, with a clear view and knowledge of what the law is upon
such a subject and how the plaintiff's case must be brought under
it to make the defendant responsible on this action for false
imprisonment. But it substitutes an imputed error in the finding of
the court for the original subject matter of its jurisdiction,
seeking to make the marshal answerable for his mere ministerial
execution of a sentence, which the court passed, the Secretary of
the Navy approved, and which the President of the United States, as
constitutional Commander-in-Chief of the army and navy of the
United States, directed the marshal to execute by receiving the
prisoner and convict, Dynes, from the naval officer then having him
in custody, to transfer him to the penitentiary, in accordance with
the sentence which the court had passed upon him. And this upon the
principle that where a court has no jurisdiction over the subject
matter, it tries and assumes it; or where an inferior court has
jurisdiction over the subject matter, but is bound to adopt certain
rules in its proceedings, from which it deviates, whereby the
proceedings are rendered
coram non judice, that trespass
for false imprisonment is the proper remedy, where the liberty of
the citizen has been restrained by process of the court or by the
execution of its judgment. Such is the law in either case, in
respect to the court, which acts without having jurisdiction over
the subject matter, or which, having jurisdiction, disregards the
rules of proceeding enjoined by the law for its exercise, so as to
render the case
coram non judice. Cole's Case,
John.W. 171;
Dawson v. Gill, 1 East. 64;
Smith v.
Beucher, Hardin 71;
Martin v. Marshall, Hob. 68;
Weaver v. Clifford, 2 Bul. 64; 2 Wils. 385. In both cases,
the law is that an officer executing the process of a court which
has acted without jurisdiction over the subject matter becomes a
trespasser, it being better for the peace of society and its
interests of every kind that the responsibility of determining
whether the court has or has not jurisdiction should be upon the
officer than that a void writ should be executed. This Court, so
far back as the year 1806, said, in the case of
Wise and
Withers, 3 Cranch 331,
7
U. S. 337 of that case,
"It follows from this opinion that a court martial has no
jurisdiction over a justice of the
Page 61 U. S. 81
peace as a militiaman; he could never be legally enrolled, and
it is a principle that a decision of such a tribunal, in a
case
clearly without its jurisdiction, cannot protect the
officer who executes it. The
court and the officer are all
trespassers."
2 Brown 124; 10 Cranch 69; Mark's 118; 8 Term 424; 4 Mass.
234.
I add two cases from the 2d of Horace Gray's reports of the
Supreme Judicial Federal Court of Massachusetts, furnished me by
MR. JUSTICE CAMPBELL of
Pifer v. Person, 120;
Clark v.
Whipple, in May and Kent 410.
But the case in hand is not one of a court without jurisdiction
over the subject matter, or that of one which has neglected the
forms and rules of procedure enjoined for the exercise of
jurisdiction. It was regularly convened; its forms of procedure
were strictly observed as they are directed to be by the statute;
and if its sentence be a deviation from it, which we do not admit,
it is not absolutely void. Whatever the sentence is or may have
been, as it was not a trial by court martial taking place out of
the United States, it could not have been carried into execution
but by the confirmation of the President, had it extended to loss
of life, or in cases not extending to loss of life, as this did
not, but by the confirmation of the Secretary of the Navy, who
ordered the court. And if a sentence be so confirmed, it becomes
final, and must be executed unless the President pardons the
offender. It is in the nature of an appeal to the officer ordering
the court, who is made by the law the arbiter of the legality and
propriety of the court's sentence. When confirmed, it is altogether
beyond the jurisdiction or inquiry of any civil tribunal whatever,
unless it shall be in a case in which the court had not
jurisdiction over the
subject matter or charge, or one in
which, having jurisdiction over the subject matter, it has failed
to observe the rules prescribed by the statute for its exercise. In
such cases, as has just been said, all of the parties to such
illegal trial are trespassers upon a party aggrieved by it, and he
may recover damages from them on a proper suit in a civil court, by
the verdict of a jury.
Persons, then, belonging to the army and the navy are not
subject to illegal or irresponsible courts martial when the law for
convening them and directing their proceedings of organization and
for trial have been disregarded. In such cases, everything which
may be done is void -- not voidable, but void -- and civil courts
have never failed, upon a proper suit, to give a party redress, who
has been injured by a void process or void judgment. In England it
has been done by the civil courts ever since the passage of the 1
Mutiny Act of William and Mary, ch. 5, 3 April, 1689. And it must
have been with
Page 61 U. S. 82
a direct reference to what the law was in England that this
Court said, in
Wise v.
Withers, 3 Cranch 337, that in such a case "the
court and the officers are all trespassers." When we speak of
proceedings in a cause or for the organization of the
court and for trials, we do not mean mere irregularity in practice
on the trial or any mistaken rulings in respect to evidence or law,
but of a disregard of the essentials required by the statute under
which the court has been convened to try and to punish an offender
for an imputed violation of the law.
Courts martial derive their jurisdiction and are regulated with
us by an act of Congress, in which the crimes which may be
committed, the manner of charging the accused, and of trial, and
the punishments which may be inflicted, are expressed in terms, or
they may get jurisdiction by a fair deduction from
the
definition of the crime that it comprehends, and that the
legislature meant to subject to punishment one of a minor degree of
a kindred character, which has already been recognized to be such
by the practice of courts martial in the army and navy services of
nations, and by those functionaries in different nations to whom
has been confided a revising power over the sentences of courts
martial. And when offenses and crimes are not given in terms or by
definition, the want of it may be supplied by a comprehensive
enactment, such as the 32d article of the rules for the government
of the navy, which means that courts martial have jurisdiction of
such crimes as are not specified, but which have been recognized to
be crimes and offenses by the usages in the navy of all nations,
and that they shall be punished according to the laws and customs
of the sea. Notwithstanding the apparent indeterminateness of such
a provision, it is not liable to abuse, for what those crimes are
and how they are to be punished is well known by practical men in
the navy and army and by those who have studied the law of courts
martial and the offenses of which the different courts martial have
cognizance. With the sentences of courts martial which have been
convened regularly and have proceeded legally, and by which
punishments are directed, not forbidden by law, or which are
according to the laws and customs of the sea civil courts have
nothing to do, nor are they in any way alterable by them. If it
were otherwise, the civil courts would virtually administer the
rules and articles of war, irrespective of those to whom that duty
and obligation has been confided by the laws of the United States,
from whose decisions no appeal or jurisdiction of any kind has been
given to the civil magistrate or civil courts. But we repeat, if a
court martial has no
jurisdiction over the subject matter of
the charge it has been convened
Page 61 U. S. 83
to try, or shall inflict a punishment forbidden by the law,
though its sentence shall be approved by the officers having a
revisory power of it, civil courts may, on an action by a party
aggrieved by it, inquire into the want of the court's jurisdiction,
and give him redress.
Harman v. Tappenden, 1 East. 555; as
to ministerial officers,
Marshall's Case, 10 Cranch 76;
Morrison v. Sloper, Wells 30;
Parton v. Williams,
B. & A. 330; and as to justices of the peace, by Ld. Tenterden,
in
Basten v. Carew, 3 B. & C. 653;
Mules v.
Calcott, 6 Bins 85.
Such is the law of England. By the mutiny acts, courts martial
have been created, with authority to try those who are a part of
the army or navy for breaches of military or naval duty. It has
been repeatedly determined that the sentences of those courts are
conclusive in any action brought in the courts of common law. But
the courts of common law will examine whether courts martial have
exceeded the jurisdiction given them, though it is said, "not,
however, after the sentence has been ratified and carried into
execution."
Grant v. Gould, 2 H.Black 69;
Ship
Bounty, 1 East. 313;
Shalford's Case, 1 East. 313;
Mann v. Owen, 9 B. & C. 595;
In the Matter of
Poe, 5 B. & A. 681, on a motion for a prohibition. A
judge, or any person acting by authority as such, where he has over
the subject matter and over the person, a general jurisdiction
which he has not exceeded, will not be liable to have his judgment
examined in an action brought against himself; but if jurisdiction
be wanting over the subject matter and over the person, such
judgment would be examinable.
Hammond v. Howel, 1 Mod.
184;
Garnett v. Ferrand, 6 B. & C. 611;
Moslyn v.
Fabugas, Cow. 172;
Bonham's Case, 8 Co. 114;
Greenwell v. Burwell, 1 Le Roy 454; by Holt, C.J., 1 Le
Roy 470;
Lumley v. Lance, 2 Le Roy 767;
Basten v.
Carew, 3 B. & C. 649. The preceding cited cases relate to
judges of record. As to judges not of record, ecclesiastical
judges,
Acherly v. Parkerson, 3 M. & S. 411.
Commissioners of court of bequests,
Aldridge v. Haines, 2
B. & Ad. 395. As to returning officer of election,
Ashby v.
White, 2 Ld.Raym. 941;
Cullen v. Morris, 2 Start
577.
In this case, all of us think that the court which tried Dynes
had jurisdiction over the subject matter of the charge against him,
that the sentence of the court against him was not forbidden by
law, and that, having been approved by the Secretary of the Navy as
a fair deduction from the 17th article of the Act of April 23,
1800, and that Dynes having been brought to Washington as a
prisoner by the direction of the Secretary, that the President of
the United States, as constitutional commander-in-chief of the army
and navy, and in virtue of his
Page 61 U. S. 84
constitutional obligation that "He shall take care that the laws
be faithfully executed," violated no law in directing the marshal
to receive the prisoner Dynes from the officer commanding the
United States steamer
Engineer for the purpose of
transferring him to the penitentiary of the District of Columbia,
and consequently that the marshal is not answerable in this action
of trespass and false imprisonment.
We affirm the judgment of the circuit court.
MR. JUSTICE McLEAN dissented.