It is within the power of the President, as commander-in-chief,
to convene a general court-martial, even when the commander of the
accused officer to be tried is not the accuser.
A charge was made by letter against an officer in the army; the
letter was referred to a court of inquiry to investigate; on the
receipt of its report, charges and specifications against him were
prepared by order of the Secretary of War, and the President
thereupon appointed a court-martial to pass upon the charges.
Held that such routine orders did not make the President
his accuser or prosecutor.
In detailing officers to compose a court-martial, the
presumption is that the President acts in pursuance of law, and its
sentence cannot be collaterally
Page 165 U. S. 554
attacked by going into an inquiry whether the trial by officers
inferior in rank to the accused was or was not avoidable.
When a court-martial has jurisdiction of the person accused and
of the offence charged, and acts within the scope of its lawful
powers, its proceedings and sentence cannot be set aside by the
civil courts.
The action of the President in twice returning the proceedings
of the court-martial urging a more severe sentence was authorized
by law, and a sentence made after such action, and in consequence
of it, was valid.
When an officer in the army is suspended from duty, he is not
entitled to emoluments or allowances.
On February 23, 1891, David G. Swaim filed in the Court of
Claims a petition against the United States alleging that he was,
on the 30th day of June, 1884, and still was, Judge Advocate
General of the Army of the United States, with the rank, pay, and
allowance of a brigadier general therein. He complained that, by
reason of the unlawful creation and action of a certain
court-martial, he had been on February 24, 1885, suspended from
rank and duty for twelve years, and that one-half of his pay had
been forfeited for that period. For reasons set forth in the
petition, the claimant asked that the proceedings, findings, and
sentence of the said court-martial should be declared to be void,
and that judgment should be rendered awarding him the amount of his
pay and allowances retained in pursuance of the said sentence.
The Court of Claims made, upon the evidence, certain findings of
fact, and on the 27th day or February, 1893, entered a final
judgment dismissing the claimant's petition. From that judgment an
appeal was taken to this Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
The theory of the claimant's petition was that the sentence
Page 165 U. S. 555
of the court-martial was void, and hence constituted no defense
to his action for his retained pay.
It was said by this Court in
Dynes v.
Hoover, 20 How. 82, that
"with sentences of courts-martial which have been convened
regularly, and have proceeded regularly, 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 have
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."
Keyes v. United States, 109 U.
S. 336, was, like the present, a suit in the Court of
Claims to recover back pay alleged to have been wrongfully retained
by reason of an illegal judgment of a court-martial, and the rule
was laid down thus:
"That the court-martial, as a general court-martial, had
cognizance of the charges made, and had jurisdiction of the person
of the appellant, is not disputed. This being so, whatever
irregularities or errors are alleged to have occurred in the
proceedings, the sentence must be held valid when it is questioned
in this collateral way,"
but
"where there is no law authorizing the court-martial, or where
the statutory conditions as to the Constitution or jurisdiction of
the court are not observed, there is no tribunal authorized by law
to render the judgment."
In
Smith v. Whitney, 116 U. S. 167,
these cases were cited with approval, and numerous other decisions,
both English and American, were cited to the same effect. We shall
have occasion to revert to this case at a subsequent portion of
this opinion when examining some of the objections urged to the
action of the court-martial.
With these general principles in view, we shall now briefly
consider the several contentions urged on behalf of the
appellant.
The first of these challenges the authority of the President
Page 165 U. S. 556
of the United States to appoint the general court-martial in
question. The argument is based on the phraseology of the
seventy-second article of war, contained in ยง 1342 of the Revised
Statutes, as follows:
"Any general officer, commanding the army of the United States,
or separate army, or a separate department, shall be competent to
appoint a general court-martial, either in time of peace or in time
of war. But when any such commander is the accuser or prosecutor of
any officer under his command, the court shall be appointed by the
President, and its proceedings and sentence shall be sent directly
to the Secretary of War, by whom they shall be laid before the
President for his approval or orders in the case."
It is claimed to be the legal implication of this section that
the power of the President to appoint a court-martial is restricted
to the single case where the commander of an officer charged with
an offense is himself the accuser or prosecutor, and that as, in
the present case, General Sheridan, the immediate commander of the
appellant, was not the accuser or prosecutor, the right of the
President to make the order convening the court-martial did not
arise. In other words, the contention is that in the seventy-second
article of war, just quoted, is found the only power of the
President, as commander-in-chief of the armies of the United
States, to appoint a general court-martial.
This view of the President's powers in this particular was
asserted in
Runkle's Case, 19 Ct.Cl. 396, but was not
approved by the Court of Claims, which held that when authority to
appoint courts-martial was expressly granted to military officers,
the power was necessarily vested in the commander-in-chief, the
President of the United States. Chief Justice Drake, after quoting
from writers on military law in support of the statement that the
authority of the President to appoint general court-martial had in
fact been exercised from time to time from an early period,
said:
"As commander-in-chief, the President is authorized to give
orders to his subordinates, and the convening of a court-martial is
simply the giving of an order to certain officers
Page 165 U. S. 557
to assemble as a court, and, when so assembled, to exercise
certain powers conferred upon them by the articles of war. If this
power could not be exercised, it would be impracticable, in the
absence of an assignment of a general officer to command the army,
to administer military justice in a considerable class of cases of
officers and soldiers not under the command of any department
commander; as, for example, a large proportion of the officers of
the general staff and the whole body of the retired officers."
On appeal, the judgment of the Court of Claims was reversed by
this Court on the sole ground that the record did not disclose that
the sentence of the court-martial had been approved by the
President, as prescribed in express terms by the seventy-second
article of war. As this Court, in its opinion, did not think fit to
notice or discuss the question of the power of the President to
appoint the court-martial, the case must be deemed an authority for
the proposition that the court-martial had been properly convened
by the order of the President as commander-in-chief.
It may be interesting to notice, as part of the history of this
question, that the Senate of the United States, by a resolution
adopted February 7, 1885, directed its committee on the judiciary
to report, among other things, whether, under existing law, an
officer may be tried before a court-martial appointed by the
President in cases where the commander of the accused officer to be
tried is not the accuser, and that the committee, after an
examination of the question, expressed its conclusions in the
following language:
"Under the present Constitution, when, for the first time, in
1806, Congress enacted a code on the subject, it changed the
imperative language of the articles of war existing under the
confederation, and simply provided that any general officer
commanding an army, etc., may appoint general courts-martial, thus
evidently intending to confer an authority, and not to exclude the
inherent power residing in the President of the United States under
the Constitution. The substance of this provision has been in force
ever since, and from the formation of the Constitution until the
present time, the committee
Page 165 U. S. 558
is advised that the President of the United States has at all
times when in his opinion it was expedient constituted general
courts-martial."
"In this state of the history of legislation and practice, and
in consideration of the nature of the office of commander-in-chief
of the armies of the United States, the committee is of opinion
that the acts of Congress which have authorized the constitution of
general courts-martial by an officer commanding an army,
department, etc., are, instead of being restrictive of the power of
the commander-in-chief, separate acts of legislation, and merely
provide for the constitution of general courts-martial by officers
subordinate to the commander-in-chief, and who, without such
legislation, would not possess that power, and that they do not in
any manner control or restrain the commander-in-chief of the army
from exercising the power which the committee think, in the absence
of legislation expressly prohibitive, resides in him from the very
nature of his office, and which, as has been stated, has always
been exercised."
Without dwelling longer on this question, we approve the
conclusion reached by the Court of Claims that it is within the
power of the President of the United States, as commander-in-chief,
to validly convene a general court-martial even where the commander
of the accused officer to be tried is not the accuser.
The contention that the President of the United States was in
the present case the accuser or prosecutor of the appellant within
the meaning of the seventy-second article of war is, we think,
wholly unfounded. The accusation was made by one A. E. Bateman in a
letter addressed to the Secretary of War, dated April 16, 1884.
Thereupon, on April 22, 1884, the President appointed a court of
inquiry to examine into the accusations made in the letter of
Bateman to the Secretary of War. Upon the report of the court of
inquiry, by order of the Secretary of War, the subject was referred
to Major R. N. Scott, with directions to prepare charges and
specifications against General Swaim, and on June 30, 1884, the
President appointed the general court-martial which proceeded
Page 165 U. S. 559
to hear and pass upon the charges and specifications. It is not
seen how these routine orders which led to the trial of the
appellant can be construed as making the President his accuser or
prosecutor.
It is next contended that even if the court-martial in the
present case were validly convened by the order of the President,
yet that it was constituted in violation of the seventy-ninth
article of war, which provides that "officers shall be tried only
be general courts-martial, and no officer shall, when it can be
avoided, be tried by officers inferior to him in rank."
It appears that a majority of the court-martial as organized for
the trial was composed of colonels, officers inferior in rank to
the appellant, whose rank was that of brigadier general, and it is
argued that the record does not affirmatively disclose that the
appointment of officers inferior in rank to the accused was
unavoidable by reason of some necessity of the service.
In
Martin v. Mott,
12 Wheat. 19, it was contended that where the articles of war
provided that
"general courts-martial may consist of any number of
commissioned officers from five to thirteen inclusively, but they
shall not consist of less than thirteen where that number can be
convened without manifest injury to the service,"
and where the court-martial in question consisted of six
officers only, the court was not legally formed, because the
government's pleading in the case did not affirmatively show that
thirteen officers could not have been appointed "without manifest
injury to the service."
Replying to this, the court, through Mr. Justice Story,
said:
"Supposing these claims applicable to the court-martial in
question, it is very clear that the act is merely directory to the
officer appointing the court, and that his decision as to the
number which can be convened without manifest injury to the
service, being a matter submitted to his sound discretion, must be
conclusive."
In
Mullan v. United States, 140 U.
S. 240, the case was one where Mullan sued in the Court
of Claims to recover pay as commander in the navy accruing after he
had been dismissed by the sentence of a court-martial, which
sentence was
Page 165 U. S. 560
alleged to be void because the court was illegally formed in
that five of its seven members were junior in rank to the accused,
the thirty-ninth article for the government of the United States
navy providing that in no case where it can be avoided without
injury to the service shall more than one-half, exclusive of the
President, be junior to the officer to be tried. But this Court,
through MR. JUSTICE HARLAN, said:
"Whether the interests of the service admitted of a postponement
of the trial until a court could be organized of which at least
one-half of its members, exclusive of the President, would be his
seniors in rank, or whether the interests of the service required a
prompt trial upon the charges preferred, by such officers as could
then be assigned to that duty by the commander-in-chief of the
squadron, were matters committed by the statute to the
determination of that officer. And the courts must assume --
nothing to the contrary appearing upon the face of the order
convening the court -- that the discretion conferred upon him was
properly exercised, and therefore that the trial of the appellant
by a court, the majority of whom were his juniors in rank, could
not be avoided 'without injury to the service,' citing
Martin v.
Mott, 12 Wheat. 19."
In the present case, several considerations might have
determined the selection of the members of the court, such as the
health of the officers within convenient distance, or the injury to
the public interests by detaching officers from their stations. The
presumption must be that the President, in detailing the officers
named to compose the court-martial, acted in pursuance of law. The
sentence cannot be collaterally attacked by going into an inquiry
whether the trial by officers inferior in rank to the accused was
or was not avoidable.
Error is assigned to the Court of Claims in overruling an
exception to the action of the court-martial in permitting, after
objection made, an officer to sit on the trial whom the appellant,
in the performance of his official duty, on several occasions
severely criticized in official reports, and whose emnity and
dislike had been thereby incurred. This error
Page 165 U. S. 561
is sufficiently disposed of by quoting the provisions of the
eighty-eighth article of war:
"Members of a court-martial may be challenged by a prisoner, but
only for cause stated to the court. The court shall determine the
relevancy and validity thereof, and shall not receive a challenge
to more than one member at a time."
The decision of the court-martial in determining the validity of
the challenge could not be reviewed by the Court of Claims in a
collateral action.
Objections were made to the action of the court-martial in
permitting a person to act as judge advocate who was not appointed
by the convening officer of the court-martial, nor sworn to the
faithful performance of his duty, in receiving oral and secondary
evidence of an account when books of original entry were available;
in receiving evidence to implicate the accused in signing false
certificates relating to money which formed no part of the subject
matter of the charges on trial; in refusing to permit evidence as
to the bad character of a principal witness for the prosecution; in
refusing to hear the testimony of a material witness for the
defense.
It was the opinion of the Court of Claims that the errors so
assigned could not be reviewed collaterally, and that they did not
affect the legality of the sentence, and in so holding, we think,
that court followed the authorities. Such questions were merely
those of procedure, and the court-martial having jurisdiction of
the person accused and of the offense charged, and having acted
within the scope of its lawful powers, its proceedings and sentence
cannot be reviewed or set aside by the civil courts.
Dynes v.
Hoover, 20 How. 65;
Ex Parte Reed,
100 U. S. 13;
Smith v. Whitney, 116 U. S. 167;
Johnson v. Sayre, 158 U. S. 109.
It is strongly urged that no offense under the sixty-second
article of war was shown by the facts, and that the Court of Claims
should have so found, and have held the sentence void. If this
position were well taken, it would throw upon the civil courts the
duty of considering all the evidence adduced before the
courts-martial, and of determining whether the accused was guilty
of conduct, to the prejudice of good order and military discipline,
in violation of the articles of war.
Page 165 U. S. 562
But, as the authorities heretofore cited show, this is the very
matter that falls within in the province of courts-martial, and in
respect to which their conclusions cannot be controlled or reviewed
by the civil courts. As was said in
Smith v. Whitney,
116 U. S.
178:
"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. . . . 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 in the performance of military duties, or in a
civil position, or in a social relation, or in private
business."
In
United States v. Fletcher, 148 U. S.
84, will be found observations to the same effect.
It is earnestly contended that, upon the fourteenth finding of
the Court of Claims, it was the duty of that court to set aside the
sentence. That finding was as follows:
"The court-martial having reached a finding, and having
thereupon sentenced claimant upon the charges promulgated in the
said general court-martial orders No.19, and the reviewing officer
having referred to the court for trial another set of charges
alleging fraud and conduct unbecoming an officer and a gentleman,
under the sixtieth and sixty-first articles of war, as promulgated
in general court-martial orders No. 20, of 1885, and the
court-martial having heard all the evidence for the prosecution
therein (except an absent witness, but with a statement as to what
such witness would testify to), thus making a
prima facie
case against claimant, and he not having presented a defense, the
reviewing authority returned the case promulgated in said
court-martial orders No.19 to the court for reconsideration and a
more severe sentence, with an opinion of the Attorney General,
hereinbefore set forth, which proceedings were with closed doors,
and of which claimant had no notice at the time. "
Page 165 U. S. 563
In order to apprehend the legal effect of this finding, we
should read a portion of the history of the case as stated in the
opinion of the Court of Claims:
"The question of fraud being out of the case, and the
court-martial, having properly acquitted the claimant on the charge
of conduct unbecoming an officer and a gentleman, imposed this
sentence: 'To be suspended from rank, duty, and pay for the period
of three years.' The record then went to the President, and was by
him referred to the Attorney General. On the 11th of February,
1885, the President returned the record to the court-martial"
"for reconsideration as to the findings upon the first charge
only, and as to the 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 charge."
"The President also communicated to the court the opinion of the
Attorney General, 'whose views,' he added, 'upon the matter
submitted for reconsideration have my concurrence.'"
"The court-martial adhered to its determination that the facts
found did not constitute the offense charged, but imposed a second
sentence upon the accused, the language of which is as
follows:"
"The court, upon mature reconsideration, has not found the
accused guilty of such degree of wrongful of deceitful conduct as
to justify a finding of guilty of conduct unbecoming an officer and
a gentleman, and has therefore respectfully adhered to its findings
upon the first charge."
"But the court-imposed the following sentence:"
"To be suspended from rank and duty for one year, with
forfeiture of all pay for 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 advocate general's department."
"This sentence the President likewise disapproved, because, as
he thought, that part of the sentence that provided that the
accused should be reduced in rank could not be carried into effect
by the executive alone, but would require a nomination by the
President and confirmation by the Senate, and then only in case of
an existing vacancy."
"The court a third time deliberated, and then imposed the
Page 165 U. S. 564
sentence which was approved by the President, and carried into
effect, and which the claimant now attacks. It is 'to be suspended
from rank and duty for twelve years, and forfeit one-half his
monthly pay every month for the same period.'"
It is claimed that the action of the President in thus twice
returning the proceedings to the court-martial, urging a more
severe sentence, was without authority of law, and that the said
last sentence, having resulted from such illegal conduct, was
absolutely void. This contention is based upon the proposition that
the provision in the British Mutiny Act, which was in force in this
country at the time and prior to the American Revolution, and which
regulates proceedings in courts-martial, is applicable. This
provision was as follows:
"The authority, having power to confirm the findings and
sentence of a court-martial, may send back such findings and
sentence, or either of them, for revision once, but not more than
once, and it shall not be lawful for the court, on any revision, to
receive any additional evidence; and when the proceedings only are
sent back for revision, the court shall have power, without any
direction, to revise the sentence also. In no case shall the
authority recommend the increase of a sentence, nor shall the
court-martial, on revisal of the sentence, either in obedience to
the recommendation of the authority or for any other reason, have
the power to increase the sentence awarded."
Even if it be conceded that this provision of the British Mutiny
Act was at any time operative in this country, the subject is now
covered by the army regulations of 1881, section 923, relied upon
by the Attorney General in his letter to the President and cited by
the Court of Claims, which is as follows:
"When a court-martial appears to have erred in any respect, the
reviewing authority may reconvene the court for a consideration of
its action, with suggestions for its guidance. The court may
thereupon, should it concur in the views submitted, proceed to
remedy the errors pointed out, and may modify or completely change
its findings. The object of reconvening the court in such a case is
to afford it
Page 165 U. S. 565
an opportunity to reconsider the record for the purpose of
correcting or modifying any conclusions thereupon, and to make any
amendments of the record necessary to perfect it."
This regulation would seem to warrant the course of conduct
followed in the present case. In
Ex Parte Reed,
100 U. S. 13, a
somewhat similar contention was made. There, a court-martial had
imposed a sentence which was transmitted with the record to Admiral
Nichols, the revising officer, who returned it with a letter
stating that the finding was in accordance with the evidence, but
that he differed with the court as to the adequacy of the sentence.
The court revised the sentence and substituted another and more
severe sentence, which was approved. The accused filed a petition
for a writ of habeas corpus in this Court, and it was claimed that
the court had exhausted its powers in making the first sentence,
and also that it was not competent for the court-martial to give
effect to the views of the revising officer by imposing a second
sentence of more severity. The navy regulations were cited to the
effect that the authority who ordered the court was competent to
direct it to reconsider its proceedings and sentence for the
purpose of correcting any mistake which may have been committed,
but that it was not within the power of the revising authority to
compel a court to change its sentence where, upon being reconvened
by him, they have refused to modify it, nor directly or indirectly
to enlarge the measure of punishment imposed by sentence of a
court-martial.
This Court held that such regulations have the force of law, but
that, as the court-martial had jurisdiction over the person and the
case, its proceedings could not be collaterally impeached for any
mere error or irregularity committed within the sphere of its
authority; that the matters complained of were within the
jurisdiction of the court-martial, that the second sentence was not
void, and, accordingly, the application for a writ of habeas corpus
was denied. We agree with the Court of Claims that the ruling in
Ex Parte Reed in principle decides the present
question.
We think that the Court of Claims did not err in holding
Page 165 U. S. 566
that where an officer is suspended from duty, he is not entitled
to emoluments or allowances.
United States v. Thisterer,
100 U. S.
219.
We have felt constrained to at least briefly consider the
several propositions urged upon us with so much zeal and ability on
behalf of the appellant, though we might well have contented
ourselves with a reference to the able and elaborate opinion of the
Court of Claims delivered by Justice Nott. 28 Ct.Cl. 173.
As we have reached the conclusion that the court-martial in
question was duly convened and organized, and that the questions
decided were within its lawful scope of action, it would be out of
place for us to express any opinion on the propriety of the action
of that court in its proceedings and sentence. If indeed, as has
been strenuously urged, the appellant was harshly dealt with and a
sentence of undue severity was finally imposed, the remedy must be
found elsewhere than in the courts of law.
The decree of the Court of Claims is
Affirmed.