This Court has appellate jurisdiction, under the Act of March 3,
1885, c. 355, of a judgment of the Supreme Court for the District
of Columbia dismissing a petition for a writ of prohibition to a
court martial convened to try an officer for an offense punishable
by dismissal from the service and consequent deprivation of a
salary which during the term of his office would exceed the sum of
$5,000.
Where an inferior court has clearly no jurisdiction of a suit,
and the defendant therein has objected to its jurisdiction at the
outset, and has no other remedy, he is entitled as matter of right
to a writ of prohibition from a court having authority to grant it,
and a refusal to grant it, where all the proceedings appear of
record, may be reviewed on error.
Page 116 U. S. 168
It seems that a writ of prohibition should issue from
the law side of a court having both common law and equity
powers.
Whether the Supreme Court of the District of Columbia has power
to issue a writ of prohibition to a court martial
quaere.
A writ of prohibition does not lie to the Secretary of the Navy
convening a naval court martial.
A writ of prohibition does not lie to a court martial to correct
mistakes in the decision of questions of law or fact within its
jurisdiction.
A writ of prohibition will not be issued to prohibit a naval
court martial from trying a naval officer, being paymaster general
and chief of a bureau in the Department of the Navy, upon a charge
of "scandalous conduct tending to the destruction of good morals,"
with specifications alleging that as such chief of bureau, he made
contracts and payments in disregard of the interests of the
government and to promote the interests of contractors, in
violation of law and to the great scandal and disgrace of the
service and injury of the United States, and upon an additional
charge of "culpable inefficiency in the performance of duty," with
specifications setting forth acts similar to those specified under
the first charge.
A naval court martial which has returned its proceedings to the
Secretary of the Navy and been adjourned by him until further order
may be reconvened by him to reconsider those proceedings.
This was a petition, filed September 21, 1885, praying the
Supreme Court of the District of Columbia to issue a writ of
prohibition to the Secretary of the Navy, and to a general
court-martial of naval officers convened by his order of June 25,
1885, to try the petitioner, a pay inspector in the navy, and by
appointment of the President, confirmed by the Senate, of the date
of June 27, 1882, "Chief of the Bureau of Provisions and Clothing
and Paymaster General in the Department of the Navy, with the
relative rank of commodore," upon certain charges and
specifications, a copy of which was made part of the petition.
The first of those charges was "scandalous conduct tending to
the destruction of good morals," under which were fourteen
specifications, alleging that
"the said Joseph A. Smith, then being a pay inspector in the
United States Navy, and having been therefore, as such officer of
the navy, duly appointed Chief of the Bureau of Provisions and
Clothing, with the title of Paymaster General, in the Department of
the Navy,"
and being responsible for the proper and reputable
administration thereof, and it being his duty to protect the
interests of the
Page 116 U. S. 169
government in the making of contracts for supplies for the navy,
did various acts, which were set forth in different forms and with
much detail, but the substance of which was that he enlarged
existing contracts so as to include at the contract price
additional supplies not required by the necessities of the service,
without consulting the Secretary of the Navy, or the sureties on
the contractor's bond, or giving any opportunity for competition,
and, when the market was falling, extended the time of delivery of
supplies contracted for, thereby necessitating the acceptance of
supplies of an inferior quality, falsified a copy of a contract,
and thereby enabled the contractor to obtain payment at a place
other than that required by the contract; and, by directions and
instructions to pay officers, caused to be paid claims which had
been refused by other pay officers, and which, as he knew, had been
declared illegal by the accounting officials of the Treasury, and
by so causing pay officers to pay these claims, and to pay them out
of appropriations for years other than those in which the contracts
were made, greatly embarrassed those officers in the performance of
their duties, and thereby willfully and knowingly, in disregard of
his duties and responsibilities as chief of bureau, subordinated
the interests of the government to those of the contractors, in
violation of law, and "to the great scandal and disgrace of the
service, and the injury of the United States."
The second charge was "culpable inefficiency in the performance
of duty," under which were four specifications, alleging that he
failed in his duty in not obliging contractors to comply with the
terms of their contracts, and in allowing deliveries to be made
after the time for delivery had expired; and also, in purchasing
more supplies than the current needs of the navy required, and in
purchasing unfit supplies, and in not affording due opportunity for
competition.
In the application for a writ of prohibition, the petitioner
alleged that, immediately upon the organization of the
court-martial, he objected that it had no jurisdiction of him, or
of the charges and specifications against him, or of the subject
matter contained in them, or any part thereof; but the
court-martial overruled all his objections to its jurisdiction, and
proceeded to
Page 116 U. S. 170
hear evidence on the charges, and to try him thereon. He further
alleged that none of the charges or specifications in any degree
arose out of or were involved in any case arising in the land or
naval forces of the United States, or in the militia, but all, as
appeared on their face, pertained exclusively to duties required of
and performed by him in the exercise of a purely civil office, and
under a civil commission; that none of the specifications charged
him with the violation of any law of the United States, or of any
rule of procedure in the Navy Department, or of any order of the
Secretary of the Navy; that each of the acts complained of had been
approved by the late Secretary of the Navy in the lawful exercise
of his discretionary power over the subject, and that the exercise
of his discretion could not be reviewed by his successor, or by a
court-martial; that throughout the trial the petitioner insisted on
his objections to the jurisdiction; that after the conclusion of
the testimony and arguments the court-martial went into secret
session, and excluded him and his counsel from its presence, and,
as he was informed and believed, rendered some judgment adverse to
him, and submitted it to the Secretary of the Navy for his
approval, but it had not been approved; that all the proceedings at
the trial, with the finding and judgment of the court, were made up
and signed by the judge advocate, and returned to the exclusive
custody of the Secretary of the Navy, and the court discontinued
its sessions, and adjourned without day; that afterwards the
Secretary of the Navy made an order, the terms of which were
unknown to the petitioner, directing the court-martial to reconvene
on September 25, 1885, and to take additional action in the matter
of the charges and specifications and evidence submitted to it as
aforesaid; that it was about to reconvene accordingly, and, without
permitting the presence of the petitioner or his counsel, to
reconsider the evidence and the principles of law involved in his
trial, and to reexamine and readjudge his case; that the
proceedings about to be taken by the court-martial were not only
unauthorized for want of jurisdiction, but would deprive him of the
right of trial by jury, and put him twice in jeopardy for the same
offense, in violation of the Constitution of the United States;
Page 116 U. S. 171
and that he was without remedy except by the writ of
prohibition.
On September 23d, the petitioner moved for an order upon the
defendants to show cause why a writ of prohibition should not issue
as prayed for, and it was ordered that the petition be entertained
and certified for hearing in the first instance to the court in
general term.
On September 24, the Secretary of the Navy filed a plea averring
that the court ought not to hear or take further cognizance of the
petition and proceedings because their object and purpose were
"to prohibit and restrain him from the exercise of powers and
duties appertaining to his said office of Secretary of the
Department of the Navy, whereas it is beyond the jurisdiction of
this Court, and the judicial power of the United States, to
restrain or otherwise intermeddle with the exercise of the said
powers and duties which belong to and form a part of the political
powers and duties of the government of the United States."
On the same day, the members of the court-martial filed a plea
and answer, in which they
"say that they are advised that this Court has no jurisdiction
to arrest, by writ of prohibition, any proceeding they may take in
the court-martial referred to in the said petition,"
and "not waiving in anywise, but insisting on their
jurisdictional exception or plea, answering" admitted that the
petitioner pleaded to the jurisdiction of the court-martial, and
that his plea was overruled; but alleged that he was subject to its
jurisdiction, and that there was nothing in the legislation of
Congress creating the office of Paymaster General of the Navy,
manifesting an intention to withdraw the incumbent of that position
from amenability to a court-martial for offenses committed while
exercising the same; that the first charge and the specifications
pursuant thereto were founded on the twenty-second of the articles
for the government of the navy, contained in § 1924 of the Revised
Statutes, and on § 127 of the orders regulations, and instructions
for the administration of law and justice in the United States
Navy, which prescribes that
"when the offense is a disorder or neglect not specially
provided for it should be
Page 116 U. S. 172
charged as scandalous conduct tending to the destruction of good
morals,"
and the second charge and the specifications pursuant thereto
were founded on the ninth paragraph of the eighth article for the
government of the navy; that the question whether the acts and
omissions charged against the petitioner were offenses was a matter
for the exclusive decision of the court-martial, and that the
court-martial did not and could not adjourn itself without day,
but, as appeared by orders, copies of which were produced, was, by
order of the Secretary of the Navy of August 11, "adjourned until
further orders," and, by his order of September 16, directed to
reassemble on September 25, and concluded by praying to be
dismissed with costs. On September 25, the petitioner filed a
replication in which he "joins issue with the defendants upon the
return and answer filed to the petition for the writ of
prohibition," and upon a hearing in general term the court entered
the following judgment:
"The court being of opinion that it has not jurisdiction of the
matter complained of, it is therefore considered that the petition
be and it is hereby dismissed with costs, to be taxed by the
clerk."
The petitioner in open court prayed and was allowed an appeal
from that judgment, and also sued out a writ of error to reverse
it.
MR. JUSTICE GRAY delivered the opinion of the Court. After
stating the facts in the language reported above, he continued:
The final judgment or decree of the Supreme Court of the
District of Columbia in any case in which the matter in dispute,
exclusive of costs, exceeds the sum of $5,000, may be reviewed and
reversed or affirmed in this Court upon writ of error, if the
judgment is at law, or upon appeal,
Page 116 U. S. 173
if the decree is in equity. Rev.Stat. §§ 691, 692, 705;
Rev.Stat. D.C. §§ 846, 847; Act March 3, 1885, c. 366; 23 Stat.
443.
The objection, founded on
Kurtz v. Moffitt,
115 U. S. 487, and
cases there cited, that this Court has no appellate jurisdiction of
the present case, because there is nothing in dispute the value of
which can be estimated in money, cannot be sustained. The matter in
dispute is whether the petitioner is subject to a prosecution which
may end in a sentence dismissing him from the service, and
depriving him of a salary, as paymaster general during the residue
of his term as such, and as pay inspector afterwards, which in less
than two years would exceed the sum of $5,000. Rev.Stat. §§ 1556,
1565, 1624, arts. 8, 22, 48, 53. The case cannot be distinguished
in principle from those in which it has been held that a judgment
awarding a peremptory writ of mandamus to admit one to an office,
or a judgment of ouster from an office, might be reviewed by this
Court upon writ of error, if the salary during the term of the
office would exceed the sum named in the statute defining its
appellate jurisdiction.
Columbian Ins. Co. v.
Wheelright, 7 Wheat. 534;
United
States v. Addison, 22 How. 174.
It is often said that the granting or refusing of a writ of
prohibition is discretionary, and therefore not the subject of a
writ of error. That may be true where there is another legal remedy
by appeal or otherwise, or where the question of the jurisdiction
of the court whose action is sought to be prohibited is doubtful,
or depends on facts which are not made matter of record, or where a
stranger, as he may in England, applies for the writ of
prohibition. But where that court has clearly no jurisdiction of
the suit or prosecution instituted before it, and the defendant
therein has objected to its jurisdiction at the outset, and has no
other remedy, he is entitled to a writ of prohibition as matter of
right, and a refusal to grant it, where all the proceedings appear
of record, may be reviewed on error. This is the clear result of
the modern English decisions, in which the law concerning writs of
prohibition has been more fully discussed and explained than in the
older authorities.
In
Page 116 U. S. 174
re Forster, 4 B. & S. 187, 199;
Mayor, &c.,
of London v. Cox, L.R. 2 H.L. 239, 280;
Worthington v.
Jeffries, L.R. 10 C.P. 379, 380;
Chambers v. Green,
L.R. 20 Eq. 552, 555.
See also Weston v. City Council of
Charleston, 2 Pet. 449, reversing on error
S.C., Harper 340.
The petitioner in the present case objected at the very
beginning of the proceedings before the court-martial, that it had
no jurisdiction to try him on the charges laid before it, and the
facts upon which his objection to its jurisdiction are based, as
well as the final judgment dismissing his petition for a writ of
prohibition, appear of record. The case is therefore within the
appellate jurisdiction of this Court.
The Supreme Court of the District of Columbia having both common
law and equity powers, it would seem that the proceedings in this
case must be considered as on the common law side of that court,
and that the proper mode of invoking the appellate jurisdiction of
this Court is by writ of error. In England, from long before the
Declaration of Independence, writs of prohibition have usually
issued from the courts of common law, and do not appear to have
issued from a court of chancery in any case in which a court of law
might issue them, except during vacation, when the courts of common
law were not open. 2 Hale, P.C. 147; Lord Holt, in
Blackborough
v. Davis, 1 P. Wms. 41, 43;
Anon., 1 P. Wms. 476;
Montgomery v. Blair, 2 Sch. & Lef. 136;
In re
Foster, 24 Beavan 428;
In re Bateman, L.R. 9 Eq. 660.
And in this country, so far as we are informed, these writs have
never been issued but by a court of common law jurisdiction. But as
the petitioner has both taken an appeal and sued out a writ of
error, it is immaterial which is the proper form of bringing up the
case.
The hearing below was upon a rule to show cause why a writ of
prohibition should not issue as prayed for. The question at that
hearing was the general question whether the court should issue a
writ of prohibition. That question could not, at that stage of the
case, be narrowed or divided by the pleadings filed by the
defendants. The judgment, as recorded, although it contains a
statement of the court's "opinion that it has no
Page 116 U. S. 175
jurisdiction of the matter complained of," is a general judgment
dismissing the petition, with costs, which could not have been
awarded upon a judgment of dismissal for want of jurisdiction.
Mayor v.
Cooper, 6 Wall. 247;
Elk v. Wilkins,
112 U. S. 94,
112 U. S. 98.
The writ of error brings in question the judgment, not the opinion,
of the court below. If the petition was rightly dismissed for any
reason, whether because that court had no jurisdiction to issue a
writ of prohibition to a court-martial, or because the
court-martial had jurisdiction of the charges against the
petitioner, the judgment must be affirmed.
It is argued in behalf of the petitioner that the Supreme Court
of the District of Columbia is authorized to issue writs of
prohibition on the same grounds on which it was held in
United
States v. Schurz, 102 U. S. 378, to
be authorized to issue writs of mandamus, namely, because by the
Act of February 27, 1877, c. 69, § 2, 19 Stat. 253, that court has
cognizance of "all cases in law and equity between parties, both or
either of which shall be resident or be found within said
district," as well as because it has all the powers formerly
exercised by the courts of Maryland, which, as declared by the
court of appeals of that state in
Price v. State, 8 Gill,
295, 310, included
"all the powers exercised in England by the Court of King's
Bench, so far as these powers are derived from rules and principles
of the common law, and so far as the same are suited to the change
in our political institutions, and are not modified by our
constitutional or statutory enactments."
On the other side it is contended that neither the Supreme Court
of the District of Columbia, nor any other court of the United
States, is empowered to issue writs of prohibition to a
court-martial.
Whether the Supreme Court of the District of Columbia has power
in any case to issue a writ of prohibition to a court-martial is a
question of great importance not heretofore adjudged by this Court,
and we are not inclined, in the present case, either to assert or
deny the existence of the power because upon settled principles,
assuming the power to exist, no case is shown for the exercise of
it. In deciding the case upon the facts before us, and expressing
no opinion upon the broader question, because the determination of
the case does not require
Page 116 U. S. 176
it, we take the same course that has been followed by eminent
English judges in disposing of applications for writs of
prohibition under similar circumstances.
Ex Parte Smyth,
Tyrwh. & Gr. 222, 225;
S.C., 2 Cr., M. & R. 748,
753, and 1 Gale 274, 277;
In re Forster, 4 B. & S.
187, 198.
The object of a writ of prohibition is to prevent a court of
peculiar, limited, or inferior jurisdiction from assuming
jurisdiction of a matter beyond its legal cognizance. It can only
be issued to restrain the exercise of judicial functions. When the
suit complained of is brought by a private person, he may be joined
as a defendant. But when it is a suit or prosecution on behalf of
the government, the writ of prohibition can go to the court only. 3
Bl.Com. 112;
Ex Parte Braudlacht, 2 Hill 367;
Thomson
v. Tracy, 60 N.Y. 31;
Connecticut River Railroad v.
Franklin County Commissioners, 127 Mass. 50, 59-60.
The Secretary of the Navy being an executive officer, and not a
member of the court-martial sought to be prohibited, it is quite
clear that his acts concerning the petitioner cannot be the subject
of a writ of prohibition. The reasons against issuing a writ of
prohibition to the court-martial require fuller statement.
A writ of prohibition is never to be issued unless it clearly
appears that the inferior court is about to exceed its
jurisdiction. It cannot be made to serve the purpose of a writ of
error or certiorari, to correct mistakes of that court in deciding
any question of law or fact within its jurisdiction. These rules
have been always adhered to by this Court, in the exercise of the
power expressly conferred upon it by Congress to issue writs of
prohibition to the district courts sitting as courts of admiralty;
United States v.
Peters, 3 Dall. 121;
Ex Parte Easton,
95 U. S. 68;
Ex
Parte Gordon, 104 U. S. 515;
Ex Parte Ferry Co., 104 U. S. 519;
Ex Parte Pennsylvania, 109 U. S. 174; as
well as by the court of England and of the several states in the
exercise of their inherent jurisdiction to issue writs of
prohibition to courts-martial.
Grant v. Gould, 2 H.Bl. 69;
State v. Wakely, 2 Nott & McCord 410;
State v.
Stevens, 2 McCord 32;
Washburn v. Phillips, 2 Met.
296.
Page 116 U. S. 177
And this Court, although the question of issuing a writ of
prohibition to a court-martial has not come before it for direct
adjudication, has repeatedly recognized the general rule that the
acts of a court-martial, within the scope of its jurisdiction and
duty, cannot be controlled or reviewed in the civil courts by writ
of prohibition or otherwise.
Dynes v.
Hoover, 20 How. 65,
61 U. S. 82-83;
Ex Parte Reed, 100 U. S. 13;
Ex Parte Mason, 105 U. S. 696;
Keyes v. United States, 109 U. S. 336;
Wales v. Whitney, 114 U. S. 564,
114 U. S. 570;
Kurtz v. Moffitt, 115 U. S. 487,
115 U. S. 500.
See also Wise v.
Withers, 3 Cranch 331;
Meade v. Deputy Marshal
of Virginia, 1 Brock. 324;
In re Bogart, 2 Sawyer
396;
In re White, 17 F. 723;
Barrett v. Hopkins,
7 F. 312.
In the leading case of
Grant v. Gould, 2 H.Bl. 69,
under an article of war subjecting to punishment at the discretion
of a court-martial any officer or soldier convicted of "having
advised or pursuaded any other officer or soldier to desert his
majesty's service," the petitioner "must," as was said by Chief
Justice Marshall been charged with "having advised and persuaded"
two soldiers in the Coldstream regiment of foot guards
"to desert his majesty's service, and to enlist into the service
of the East India Company, knowing them at the same time to belong
to the said regiment of foot guards."
The sentence did not in terms find him guilty of having advised
or persuaded them to desert the King's service, but merely stated
that the court-martial was of opinion that he was "guilty of having
promoted and having been instrumental toward the enlisting of" the
two soldiers
"into the service of the East India Company, knowing them at the
said time to belong to the said regiment of foot guards, and,
deeming this crime to be precisely of the same nature with that
which is set forth in the charge, and to differ only in this, that
it is rather inferior, but in a very slight degree, in point of
aggravation,"
adjudged him to be punished. It was argued for the petitioner
that he had not been found guilty of advising or persuading to
desert, which was the substance of the offense charged, but at the
utmost, of promoting and aiding in the enlistment into the service
of the East India Company, which of itself was no offense under the
Articles of War or the Mutiny Act.
Page 116 U. S. 178
But Lord Loughborough, delivering the judgment of the court of
common pleas, discharging the rule for a writ of prohibition,
said:
"Taking the whole of the case together, it is clear that there
is ground to suppose that they meant to convict him of the charge.
But if, by the nicety which they used in penning the sentence, that
sentence were to be invalidated, it could not be by a prohibition,
whatever it might be by a review, or by an appeal. The most that
can be made of it is an error in the proceedings; but we cannot
prohibit upon that account. The sentence in the case of an
unfortunate admiral
* was certainly an inaccurate
one. The question there was whether the court had not mistaken the
law, yet a prohibition was not thought of. But it is unnecessary to
discuss the sentence further; it would be extremely absurd to
comment upon it as if it was a conviction before magistrates, which
was to discussed in a court where that conviction could be
reviewed."
2 H.Bl. 107.
Of questions not depending upon the construction of the
statutes, but upon unwritten military law or usage, within the
jurisdiction of courts-martial, military or naval officers, from
their training and experience in the service, are more competent
judges than the courts of common law. This is nowhere better stated
than by Mr. Justice Perry in the Supreme Court of Bowbay,
saying:
"And the principle of the noninterference of the courts of law
with the procedure of courts-martial is clear and obvious. The
groundwork of the jurisdiction, and the extent of the powers of
courts-martial, are to be found in the Mutiny Act and the Articles
of War, and upon all questions arising upon these her majesty's
judges are competent to decide; but the Mutiny Act and Articles of
War do not alone constitute the Military Code, for they are, for
the most part, silent upon all the relates to the procedure of the
military tribunals to be erected under them. Now, this procedure is
founded upon the usages and customs of war, upon the regulations
issued by the sovereign, and upon old practice in the army, as to
all which points common law judges have no opportunity, either from
their law books or from the course of their experience,
Page 116 U. S. 179
to inform themselves. It would therefore be most illogical, to
say nothing of the impediments to military discipline which would
thereby be interposed, to apply to the procedure of courts-martial
those rules which are applicable to another and different course of
practice."
Porret's Case, Perry's Orient Cases 414, 419. So in
Martin v. Nott,
12 Wheat. 19,
25 U. S. 35, Mr.
Justice Story, delivering the opinion of this Court, said that the
law by which courts-martial were bound to execute their duties, and
to regulate their mode of proceeding, in the absence of positive
enactments, was "the general usage of the military service, or what
may not unfitly be called the customary military law." The same
view, as regarding naval courts-martial, was asserted and acted on
by this Court
Dynes v.
Hoover, 20 How. 65,
61 U. S. 82.
The martial provisions of the Revised Statutes and of the navy
regulations affecting the nature of the office and duties of the
petitioner, and the jurisdiction of the court-martial over him, are
as follows:
By § 415 of the Revised Statutes,
"There shall be at the seat of government an executive
department, to be known as the 'Department of the Navy,' and a
Secretary of the Navy, who shall be the head thereof."
By § 419,
"The business of the Department of the Navy shall be distributed
in such manner as the Secretary of the Navy shall judge to be
expedient and proper among the following bureaus,"
one of which is "Seventh. A bureau of provisions and clothing."
And by § 420,
"All of the duties of the bureaus shall be performed under the
authority of the Secretary of the Navy, and their orders shall be
considered as emanating from him, and shall have force and effect
as such."
By § 421,
"The chiefs of the several bureaus in the Department of the Navy
shall be appointed by the President, by and with the advice and
consent of the Senate, from the classes of officers mentioned in
the next five §§ respectively, or from officers having the relative
rank of captain in the staff corps of the navy, on the active list,
and shall hold their offices for the term of four years."
By § 425,
"The Chief of the Bureau of Provisions and Clothing shall be
appointed from the list of paymasters of the navy, of not less then
ten years' standing. "
Page 116 U. S. 180
By §§ 1471 and 1472 he "shall have the relative rank of
commodore while holding said position," and the title of "Paymaster
General." And by § 1473, upon being retired from that position by
reason of age, or length of service, he shall have the relative
rank of commodore.
By § 178, in case of the death, resignation, absence, or
sickness of the chief of any bureau, his duties are to be performed
by his deputy, or, if there be none, by the chief clerk of such
bureau, unless the President shall direct them to be performed by
some other officer in either department.
Chapter 10 of Title 15 of the Revised Statutes, entitled
"Articles for the Government of the Navy," contains the
following:
"SEC. 1624. The Navy of the United States shall be governed by
the following articles:"
"ART. 8. Such punishment as a court-martial may adjudge may be
inflicted upon any person in the navy"
"First, who is guilty of profane swearing, falsehood,
drunkenness, gambling, fraud, theft, or any other scandalous
conduct tending to the destruction of good morals;"
"Ninth, or is negligent or careless in obeying orders, or
culpably inefficient in the performance of duty."
"ART. 22. All offenses committed by persons belonging to the
navy, which are not specified in the foregoing articles, shall be
punished as a court-martial may direct."
"ART. 23. All offenses committed by persons belonging to the
navy while on shore shall be punished in the same manner as if they
had been committed at sea."
The Orders, Regulations and Instructions for the Administration
of Law and Justice in the United States Navy, issued by the
Secretary of the Navy under authority of the President in 1870,
provide, in § 126, that when a charge "comes directly under any
enactment, it should be set forth in the terms used therein," and
in § 127, that "when the offense is a disorder or neglect not
specially provided for, it should be charged as
scandalous
conduct tending to the destruction of good morals.'"
By § 1547 of the Revised Statutes, passed since the adoption
Page 116 U. S. 181
of the Navy Regulations of 1870,
"The orders, regulations and instructions issued by the
Secretary of the Navy prior to July 14, 1862, with such alterations
as he may since have adopted, with the approval of the President,
shall be recognized as the regulations of the navy, subject to
alterations adopted in the same manner."
This legislative recognition of the Navy Regulations of 1870
"must," as was said by Chief Justice Marshall of a similar
recognition of the Army Regulations in the Act of April 24, 1816,
c. 69, § 9, 3 Stat. 298, "be understood as giving to these
regulations the sanction of the law."
United States v
Maurice, 2 Brock. 96, 105;
Ex Parte Reed,
100 U. S. 13.
It is argued for the petitioner that his office of Paymaster
General and chief of a bureau in the Department of the Navy, under
a distinct appointment by the President and confirmation by the
Senate, is a separate office of a purely civil character; that the
duties of that office are not military, but civil only, relating to
the business of the Navy Department, performed under the authority
of the Secretary of the Navy, who is exclusively a civil officer,
and, in case of a vacancy in the office of chief of bureau, or of
his absence, to be performed by a deputy or chief clerk, who is
also exclusively a civil officer, and therefore that a violation of
those duties can be prosecuted in the civil courts only, and not by
court-martial.
On the other hand, it is argued that the petitioner is an
officer of the navy; that no one but an officer of the navy of a
certain rank can be appointed to the office of chief of bureau and
paymaster general; that the petitioner's appointment to that office
gives him the relative rank of commodore in the navy; that the
duties of paymaster general are naval duties performed by a naval
officer, and therefore that any violation of those duties is
triable and punishable by naval court-martial.
The charges on which the court-martial was ordered to try the
petitioner are drawn up in two aspects. The leading charge is for
"scandalous conduct tending to the destruction of good morals," and
various acts done by the petitioner as paymaster general are set
forth in fourteen specifications under that charge. The other
charge is for "culpable inefficiency in the performance of duty,"
with four specifications, some of which,
Page 116 U. S. 182
at least, allege, though in different forms, acts set forth in
the specifications under the first charge.
If the court-martial has jurisdiction of the principal charge
and of some or all of the specifications under it, the addition of
the second charge, with its specifications, affords no ground for
issuing a writ of prohibition. The evidence taken before the
court-martial is not produced or relied on by the petitioner. The
question presented by the record before us is whether the
court-martial should be prohibited from trying him on the charges
and specifications laid before it, and the case comes within the
rule stated by Chief Justice Shaw in
Washburn v. Phillips,
already cited:
"Unless it appears upon the face of the proceedings that the
court has no jurisdiction of any part of the subject matter of
these charges, it is not a case for a prohibition."
2 Met. 299. There may indeed be cases in which two matters
before the inferior court are so distinct that a writ of
prohibition may go as to the one and not as to the other. But when
the leading charge is within its jurisdiction, and the other
charge, though varying in form, is for the same or similar acts,
like a second count in an indictment, and the same sentence may be
awarded on the first charge as upon both, a writ of prohibition
should not issue.
Enraght v. Penzance, 7 App.Cas. 240.
The essential point to be determined therefore is whether the
court-martial has jurisdiction of the first charge and whether it
would have jurisdiction of the second, if that were the only one,
is immaterial.
In
Dynes v. Hoover, above cited, this Court held that
the jurisdiction of courts-martial, under the articles for the
government of the navy established by Congress, was not limited to
the crimes defined or specified in those articles, but extended to
any offense which, by a fair deduction from the definition,
Congress meant to subject to punishment, being
"one of a minor degree, of 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,"
or which, though
Page 116 U. S. 183
not included, in terms or by construction, within the
definition, came within
"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."
20 How.
61 U. S. 82.
The 32d of the Articles for the Government of the Navy,
established by the Act of April 23, 1800, c. 33, 2 Stat. 49, in
force at the time of that decision, has been retained in the
existing Article 22, before cited, substituting only at the
beginning, the word "offenses" for "crimes," and, in describing the
mode of punishment, the words "as a court-martial may direct,"
instead of "according to the laws and customs in such cases at
sea." As the article in its new form still applies only to offenses
"not specified in the foregoing articles," the alteration was
evidently intended to change only the rule of punishment, leaving
within the jurisdiction of courts-martial cases not so specified,
but recognized as military offenses by the usages of the naval
service. It does not, therefore, appear to us important to inquire
whether, by the rules that govern military courts, the first charge
should be considered as made under the concluding words of the
first clause of Article 8, punishing "profane swearing, falsehood,
drunkenness, gambling, theft, or any other scandalous conduct
tending to the destruction of good morals," or under Article 22,
punishing "all offenses committed by persons belonging to the navy,
which are not specified in the foregoing articles," for in either
view, as we have already seen, it should, under the regulations of
1870, recognized and sanctioned by Congress, be charged as
"scandalous conduct tending to the destruction of good morals."
Under every system of military law for the government of either
land or naval forces, the jurisdiction of courts-martial extends to
the trial and punishment of acts of military or naval officers
which tend to bring disgrace and reproach upon the service of which
they are members, whether those acts are done
Page 116 U. S. 184
in the performance of military duties, or in a civil position,
or in a social relation, or in private business. Two cases often
cited in books on military law show that acts having no relation to
the public service, military or civil, except so far as they tend
to bring disgrace and reproach upon the former -- such as making an
unfounded claim for the price of a horse, or attempting to seduce a
brother officer's wife during his illness -- may properly be
prosecuted before a court-martial under an article of war punishing
"scandalous and infamous conduct unbecoming an officer and a
gentleman," for the sole ground on which the sentence was
disapproved by the King in the one case, and by the Governor
General of India in the other, was that the court-martial, while
finding the facts proved, expressly negatived scandalous and
infamous conduct, and thereby in effect acquitted the defendant of
the charge. 2 McArthur on Courts Martial (4th ed.) 298; Hough's
Precedents in Military Law 238; Samuel on Military Law 650-652;
Simmons on Courts Martial (4th ed.) 418-420; De Hart on Courts
Martial 375-377.
In a third case, a lieutenant in the army was tried in England
by a general court-martial for conduct on board ship while coming
home from India as a private passenger on leave of absence from his
regiment for two years. The charge was that, being a passenger on
board the ship
Caesar on her voyage from Calcutta to
England, he was accused of stealing property of one Ross, his
servant, and that the officers and passengers of the ship, after
inquiring into the accusation, expelled him from their table and
society during the rest of the voyage; yet that he,
"under the circumstances so degrading and disgraceful to him,
neither then nor at any time afterwards took any measures as became
an officer and a gentleman to vindicate his honor and reputation,
all such conduct as aforesaid being to the prejudice of good order
and military discipline."
Before and at the trial, he objected that the charge against him
did not, expressly or constructively, impute any military offense,
or infraction of any of the articles of war, or any positive act of
misconduct or neglect, to the prejudice of good order and military
discipline, or state any fact which, if true, subjected him
Page 116 U. S. 185
to be arraigned and tried as a military officer. But the
court-martial proceeded with the trial, found him "guilty of the
whole of the charge produced against him, in breach of the articles
of war," and sentenced him to be dismissed the service, and
added
"that it has considered the charge produced against the prisoner
entirely in a military point of view, as affecting the good order
and discipline of the army, and that it does not mean by its
sentence to offer any opinion as to the original charge of theft,
of which the prisoner was accused by the man Ross."
The sentence was approved by the King and carried into
execution, and for that reason the Court of King's Bench denied a
writ of prohibition. Lord Denman, in delivering judgment, said that
the court did not think it necessary to consider whether the charge
was so framed as to bring the party within the Articles of War, but
that it agreed with Lord Loughborough's remark in
Grant v.
Gould, above cited that it would be extremely absurd to expect
the same precision in a charge brought before a court-martial as
was required to support a conviction by a justice of the peace.
In re Poe, 5 B. & Ad. 681, 688;
S.C., 2 Nev.
& Man. 636, 644.
Under the 61st of the Articles of War for the Government of the
Army of the United States, which, omitting the words "scandalous or
infamous," provides that "any officer who is convicted of conduct
unbecoming an officer and a gentleman shall be dismissed from the
service," it is observed in the most recent treatise on military
law, and supported by copious references to precedents,
"While the act charged will more usually have been committed in
a military capacity or have grown out of some military status or
relation, it is by no means essential that this should have been
its history. It may equally well have originated in some private
transaction of the party -- as a member of civil society or as a
man of business which, while impeaching his personal honor, has
involved such notoriety or publicity or led to such just complaint
to superior military authority as to have seriously compromised his
character and position as an officer of the army and brought
scandal or reproach upon the service."
1 Winthrop on Military Law 1023
Page 116 U. S. 186
et seq. See also 6 Opinions of Attorney
General 413, 417;
Runkle v. United States, 19 Ct.Cl. 396,
414.
This being the first case of an application to a court of the
United States for a writ of prohibition to a court-martial, we have
cited the authorities bearing upon the subject more fully than
might have been thought fit under other circumstances. It is hardly
necessary to add that by the Navy Regulations of 1870, §§ 260-265,
the court-martial could only be dissolved by the Secretary of the
Navy, and might at any time before he had dissolved it, be lawfully
reconvened by him to reconsider its proceedings.
Ex Parte
Reed, 100 U. S. 13.
To order a writ of prohibition to issue in the present case
would be to declare that an officer of the navy who, while serving
by appointment of the President as chief of a bureau in the Navy
Department, makes contracts or payments, in violation of law, in
disregard of the interests of the government, and to promote the
interests of contractors, cannot lawfully be tried by a
court-martial composed of naval officers and by them convicted of
scandalous conduct tending to the destruction of good morals and to
the dishonor of the naval service.
This we are not prepared to do, being clearly of opinion that
such conduct of a naval officer is a case arising in the naval
forces, and therefore punishable by court-martial under the
articles and regulations made or approved by Congress in the
exercise of the powers conferred upon it by the Constitution to
provide and maintain a navy and to make rules for the government
and regulation of the land and naval forces without indictment or
trial by jury.
Judgment affirmed.
*
See Admiral's Byng's Trial (Official ed. fol. London.
1757), 3, 4, 125-130; 1 McArthur on Court's Martial (4th ed.) 103,
328; 2
id. 274, 387-398.
