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decided: March 1, 1897.



Author: Shiras

[ 165 U.S. Page 554]

 MR. JUSTICE SHIRAS, after making the foregoing statement, delivered the opinion of the court.

The theory of the claimant's petition was that the sentence

[ 165 U.S. Page 555]

     of the court-martial was void, and hence constituted no defence to his action for his retained pay.

It was said by this court in Dynes v. Hoover, 20 How. 65, 82, that "with the 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 noghing to do, nor are they in any way alterable by them.If it were otherwise, the civil courts would virtually administer he 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

[ 165 U.S. Page 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 section 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 offence 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 C. Cl. 396, 409, 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 courts-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

[ 165 U.S. Page 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 pf 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 ...

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