In the Fifth Article of Amendments to the Constitution of the
United States, providing that
"No person shall be held to answer for a capital or otherwise
infamous crime unless on presentment or indictment of a grand jury,
except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public
danger,"
the words "when in actual service in time of war or public
danger" apply to the militia only.
A paymaster's clerk in the navy, regularly appointed, and
assigned to duty on a receiving ship, is a person in the naval
service of the United States, subject to be tried and convicted,
and to be sentenced to imprisonment, by a general court-martial,
for a violation of section 1624 of the Revised Statutes.
Article 43 of the Articles for the Government of the Navy
(Rev.Stat. § 1624), requiring the accused to be furnished with
a copy of the charges and specifications "at the time he is put
under arrest," refers to his arrest for trial by court-martial,
and, if he is already in custody to await the result of a court of
inquiry, is sufficiently complied with by delivering the copy to
him immediately after the Secretary of the Navy has informed him of
that result and has ordered a court-martial to convene to try
him.
The decision and sentence of a court-martial, having
jurisdiction of the person accused and of the offense charged and
acting within the scope of its lawful powers, cannot be reviewed or
set aside by writ of habeas corpus.
This was an appeal from an order, upon a writ of habeas corpus,
discharging David B. Sayre, a paymaster's clerk in the navy,
assigned to duty on the United States receiving ship
Franklin, from the custody of Captain Mortimer L. Johnson,
the commander of that ship, under a sentence of a naval
court-martial. The case appeared by the record to be as
follows:
On July 6, 1893, the Secretary of the Navy signed, and sent to
Sayre, an appointment, in these terms:
"Upon the nomination of Paymaster James E. Cann, U.S.N., you are
hereby
Page 158 U. S. 110
appointed a paymaster's clerk in the United States Navy, for
duty on board of the U.S.R.S.
Franklin. Enclosed is a
blank form of acceptance for your signature, also a blank oath of
office, which you will duly execute, and return, with your letter
of acceptance, to the department, having done which, you will
proceed to the navy yard, Norfolk, Virginia, and report to the
commandant, on the 15th instant, for duty."
On July 10, 1893, Sayre took the oath of office and returned it
to the Secretary of the Navy with an acceptance in these terms:
"I hereby accept the appointment of paymaster's clerk, dated
July 6, 1893, conferred on me, and do hereby oblige and subject
myself, during my service as paymaster's clerk, to comply with, and
be obedient to, such laws, regulations, and discipline of the navy
as are now in force or that may be enacted by Congress or
established by other competent authority, and herewith enclose oath
of office, duly executed."
Sayre accordingly entered upon the performance of his duties as
paymaster's clerk, under Paymaster Cann, on board the
Franklin, which was the receiving ship at the navy yard in
Norfolk, Virginia. Cann, besides being paymaster of the
Franklin, was paymaster at Port Royal, South Carolina, and
of the monitors at Richmond, Virginia, and was therefore obliged to
be away from the Franklin several days in each month.
On October 10, 1894, Sayre was put under arrest by Captain
Mortimer L. Johnson, commanding the
Franklin, to await the
investigation of a charge of embezzlement, and was thereafter held
in custody. On October 13, the Secretary of the Navy ordered a
court of inquiry to convene on October 16 at the navy yard in
Norfolk for the purpose of inquiring into the method in which the
pay department of the
Franklin had been conducted during
the time covered by the service of Paymaster Cann on board of her,
and directed that Sayre be held in custody, but be permitted to
attend the court of inquiry and to consult with counsel and inspect
the ship's papers. He was accordingly brought before the court of
inquiry, from day to day, until October 19. The court of inquiry
recommended that he be tried by court-martial on the charge of
embezzlement,
Page 158 U. S. 111
and he was informed of this by a letter to him from the
Secretary of the Navy of October 25.
On October 25, the Secretary of the Navy also ordered a general
court-martial to convene at the navy yard in Norfolk on October
30th, for the trial of Sayre and of such other persons as might be
legally brought before it.
The charge against Sayre was of "embezzlement, in violation of
article 14 of the Articles for the Government of the Navy," with a
specification that
"David B. Sayre, a pay clerk in the United States Navy, attached
to and serving as such on board the United States receiving ship
Franklin at the navy yard, Norfolk, Virginia, having, on
various dates between"
July 15, 1893, and October 10, 1894,
"been entrusted by Paymaster James E. Cann, United States Navy,
the paymaster of said vessel, with sums of money belonging to the
United States in various amounts, furnished and intended for the
naval service thereof, for disbursement for the purposes of said
service during the temporary absence of said Paymaster Cann from
the vessel, and having,"
on October 1, 1894, "receipted to the said Paymaster Cann for
money so entrusted to his care as aforesaid," in the sum of
$2,701.44, did, between July 15, 1893, and October 10, 1894,
"knowingly and willfully misappropriate, and apply to his own use
and benefit, from the money so entrusted to him at various times as
aforesaid" the sum of $1,971.11, "in violation of article 14 of the
Articles for the Government of the Navy."
On October 26, a copy of the charge and specification was
delivered to Sayre. The court-martial met October 30, and sat from
day to day until November 2. At its first meeting, Sayre was
brought before it and acknowledged that he had received a copy of
the charge and specification. After they had been read, his counsel
objected to the jurisdiction of the court upon the ground that
Sayre, being a paymaster's clerk, was a civilian, and not subject
to trial by court-martial, and also demurred upon the ground that a
paymaster's clerk could not be guilty of embezzlement of funds of
the United States, because the paymaster only was vested with the
management and control of those funds, and had no
Page 158 U. S. 112
power to delegate his authority to a clerk. The court-martial
decided that it had jurisdiction, and overruled the demurrer. Sayre
then pleaded not guilty.
The facts that the accused was originally put under arrest on
October 10 and that the copy of the charge and specification was
first delivered to him on October 26 were not brought to the notice
of the court-martial until they appeared upon the examination of
Captain Johnson, the last witness called for the United States.
Sayre's counsel thereupon moved that all the evidence introduced on
the part of the United States be excluded because the copy had not
been served upon him until 16 days after his arrest, and in support
of this motion relied upon article 43 of the Articles for the
Government of the Navy [
Footnote
1] and article 1785 of the United States Navy Regulations.
[
Footnote 2]
On November 2, the court-martial, after arguments of the
defendant's counsel and of the judge advocate upon this motion and
upon the whole case, overruled the motion and found the
specification proved, and the accused guilty of the charge, and
sentenced him "to be confined, in such a place as the honorable
Secretary of the Navy may designate, for the
Page 158 U. S. 113
period of two years;" to lose his pay during his confinement, to
the amount of $2,210, and then to be dishonorably dismissed from
the naval service of the United States.
On November 17, the Secretary of the Navy approved the
proceedings, finding, and sentence of the court-martial and ordered
the sentence to be duly executed, and designated the prison at the
navy yard in Boston, Massachusetts, as the place for the execution
of so much of the sentence as related to confinement, and directed
him to be transferred, under a suitable guard, to that prison, to
be there confined in accordance with the terms of his sentence.
On November 21, upon the petition of Sayre, the Circuit Court of
the United States for the Eastern District of Virginia ordered a
writ of habeas corpus to issue to Captain Johnson. The return to
the writ stated that Captain Johnson held Sayre under the order of
the Secretary of the Navy of November 17. Upon a hearing, the
court, held by the district judge, considered, as stated in his
opinion on file, and sent up with the record, entitled "Finding of
the Court," that Sayre was unlawfully restrained of his liberty
because detained under a sentence to an infamous punishment, not in
time of war or of public danger, without indictment or trial by
jury, in violation of the Fifth Article of Amendment of the
Constitution of the United States, "but without prejudice in any
other respect to the sentence of the court-martial," and therefore
ordered him to be discharged from custody. Captain Johnson appealed
to this Court.
MR. JUSTICE GRAY, after stating the case, delivered the opinion
of the Court.
By the Fifth Article of Amendment of the Constitution of the
United States,
"No person shall be held to answer for a capital, or otherwise
infamous crime unless on a presentment or
Page 158 U. S. 114
indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia, when in actual service in time
of war or public danger."
The decision below is based upon the construction that the words
"when in actual service in time of war or public danger" refer not
merely to the last antecedent, "or in the militia," but also to the
previous clause, "in the land or naval forces." That construction
is grammatically possible. But it is opposed to the evident meaning
of the provision, taken by itself, and still more so when it is
considered together with the other provisions of the
Constitution.
The whole purpose of the provision in question is to prevent
persons not subject to the military law from being held to answer
for a capital or otherwise infamous crime without presentment or
indictment by a grand jury.
All persons in the military or naval service of the United
States are subject to the military law -- the members of the
regular army and navy at all times, the militia so long as they are
in such service.
By Article I, Section 8, of the Constitution, Congress has
power
"to raise and support armies; . . . to provide and maintain a
navy; to make rules for the government of the land and naval
forces; to provide for calling forth the militia to execute the
laws of the Union, suppress insurrections and repel invasions; to
provide for organizing, arming, and disciplining the militia, and
for governing such part of them as may be employed in the service
of the United States,"
and to make all laws necessary and proper for carrying into
execution the foregoing powers and all other powers vested by the
Constitution in the government of the United States or in any
department or officer thereof.
Congress is thus expressly vested with the power to make rules
for the government of the whole regular army and navy at all times,
and to provide for governing such part only of the militia of the
several states as, having been called forth to execute the laws of
the Union to suppress insurrections or to repel invasions, is
employed in the service of the United States.
Page 158 U. S. 115
By Article II, Section 2, of the Constitution,
"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."
The President is thus, in like manner, made commander in chief
of the army and the navy of the United States at all times, and
commander in chief of the militia only when called into the actual
service of the United States.
The Fifth Article of Amendment recognizes the like distinction
between the regular land and naval forces and the militia, as to
judicial authority, that the Constitution, as originally adopted,
had recognized as to the legislative and the executive. It might as
well be held that the words, "when called into the actual service
of the United States," in the clause concerning the authority of
the President as commander in chief, restrict his authority over
the army and navy, as to hold that the like words in the Fifth
Amendment, relating to the mode of accusation, restrict the
jurisdiction of courts-martial in the regular land and naval
forces.
The necessary construction is that the words in this amendment
"when in actual service in time of war or public danger," like the
corresponding words in the First Article of the Constitution
"call[ed] forth to execute the laws of the Union, suppress
insurrections and repel invasions" and "employed in the service of
the United States" and those in the Second Article "when called
into the actual service of the United States," apply to the militia
only.
This construction has hitherto been considered so plain and
indisputable that it has been constantly assumed and acted on by
this Court, without discussion.
Dynes v.
Hoover, 20 How. 65;
Ex Parte Reed,
100 U. S. 13;
Ex Parte Mason, 105 U. S. 696;
Kurtz v. Moffitt, 115 U. S. 487,
115 U. S. 500;
Smith v. Whitney, 116 U. S. 167,
116 U. S. 186.
See also 1 Kent Com. 341, note; Miller on the Constitution
506, 507;
In re Bogart, 2 Sawyer 396; 12 Opinions of
Attorneys General 510.
Upon an appeal from the circuit court of the United States in a
case of habeas corpus, all questions of law or of fact arising upon
the record, including the evidence, are open to consideration,
Page 158 U. S. 116
and the circuit court has no authority to make conclusive
findings of fact, as it might do in actions at law upon waiver of a
jury or in cases in admiralty.
In re Neagle, 135 U. S.
1,
135 U. S. 42;
Bond v. Dustin, 112 U. S. 604;
Ralli v. Troop, 157 U. S. 386,
157 U. S.
417.
The suggestion in the opinion below that
"the prison at Boston is shown in evidence to be one of narrow
cells, and limited appliances for comfort, and such as would seem
to render confinement in it for a long-term a punishment which the
law regards as 'cruel and unusual,' and forbidden by the Eighth
Article of Amendment of the Constitution, is unsupported by
anything in the record. The remarks of the Secretary of the Navy,
in the General Order of March 25, 1871, No. 162, cited by the
learned judge, as to the condition of the prisons at the command of
the department at that time have no tendency to show what is the
present condition of any of those prisons. And no point of the kind
was made at the argument in this court."
By the Articles for the Government of the Navy, established by
Congress under the power conferred upon it by the Constitution,
"fine or imprisonment, or such other punishment as a
court-martial shall adjudge, shall be inflicted upon any person in
the naval service of the United States . . . who steals, embezzles,
knowingly and willfully misappropriates, applies to his own use or
benefit, or wrongfully and knowingly sells or disposes of any
ordnance, arms, equipments, ammunition, clothing, subsistence
stores, money or other property of the United States furnished or
intended for the military or naval service thereof,"
and "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." Rev.Stat. § 1624, arts. 14, 23. But
service on a receiving ship, even if she is at anchor at a navy
yard and not in a condition to go to sea, is "sea service," within
the meaning of the statute giving officers "at sea" a higher rate
of pay than when "on shore duty." Rev.Stat. § 1556;
United
States v. Symonds, 120 U. S. 46;
United States v. Strong, 125 U. S. 656.
Page 158 U. S. 117
By the Revised Statutes, certain paymasters, including those on
receiving ships or at naval stations, are each allowed a clerk; the
pay of the clerk is fixed, and he may become entitled to bounty
land or to a pension. Rev.Stat. §§ 1386, 1556, 2426,
4695. He is not, indeed, deemed one of the petty officers, who are
entitled to obedience in the execution of their offices from
persons of inferior ratings. Rev.Stat. § 1410. Nor is he
entitled to mileage as an "officer of the navy" under the Act of
June 30, 1876, c. 159, 19 Stat. 6;
United States v. Mouat,
124 U. S. 303. But
he is included among "officers and enlisted men in the regular or
volunteer army or navy," and as such entitled to longevity pay
under the Act of March 3, 1883, c. 97, 22 Stat. 47;
United
States v. Hendee, 124 U. S. 309.
The appointment and acceptance of Sayre as paymaster's clerk
were in accordance with the regulations for the government of the
navy established February 23, 1893, by the Secretary of the Navy,
with the approval of the President, pursuant to § 1547 of the
Revised Statutes. Navy Regulations of 1893, art. 1697, p. 438.
He was therefore, as has been directly adjudged by this Court, a
person in the naval service of the United States, and subject to be
tried and convicted, and to be sentenced to imprisonment, by a
general court-martial.
Ex Parte Reed, 100 U. S.
13.
The provision of article 43 of the Articles for the Government
of the Navy, which prescribes that "the person accused shall be
furnished with a true copy of the charges, with the specifications
at the time he is put under arrest" (on which Sayre relied before
the court-martial, and in this Court) evidently refers, as appears
by the very next article, to the time when he "is arrested for
trial" by court-martial, and not to the time of any previous
arrest, either by way of punishment or to await the action of a
court of inquiry. Rev.Stat. § 1624, arts. 24, 43, 44, 55.
Sayre, being already in custody to await the result of a court of
inquiry, could not be considered as put under arrest for trial by
court-martial before the Secretary of the Navy had informed him of
the report of the court of
Page 158 U. S. 118
inquiry and had ordered a court-martial to convene to try him.
Immediately after that, and four days before the court-martial met,
he was furnished with a copy of the charge and specification on
which he was to be tried. This was a sufficient compliance with the
article in question. And it is, at the least, doubtful whether the
objection that it had not been sooner delivered to him did not come
too late, after he had admitted before the court-martial that he
had received a copy of the charge and specification and after
objections to the jurisdiction of the court and to the form of the
accusation had been made and overruled and he had pleaded not
guilty and the evidence for the United States had been
introduced.
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 decision and sentence cannot be reviewed or set
aside by the civil courts, by writ of habeas corpus or otherwise.
Dynes v.
Hoover, 20 How. 65,
61 U. S. 82;
Ex Parte Reed, 100 U. S. 13;
Ex Parte Mason, 105 U. S. 696;
Smith v. Whitney, 116 U. S. 167,
116 U. S.
177-179.
Order reversed with directions to remand Sayre to
custody.
[
Footnote 1]
"The person accused shall be furnished with a true copy of the
charges, with the specifications at the time he is put under
arrest, and no other charges than those so furnished shall be urged
against him at the trial unless it shall appear to the court that
intelligence of such other charge had not reached the officer
ordering the court when the accused was put under arrest or that
some witness material to the support of such charge was at that
time absent and can be produced at the trial, in which case
reasonable time shall be given to the accused to make his defense
against such new charge."
Rev.Stat. § 1624, art. 43.
[
Footnote 2]
"1. It is entirely within the discretion of the officer
empowered to convene a court-martial to direct what portions of the
complaint against an accused shall be charged against him."
"2. When, therefore, such competent officer shall decide to have
a party tried by court-martial, he will cause such charges and
specifications against him to be prepared as he may consider
proper, and will transmit a true copy of them, with an order for
the arrest or confinement of the accused, to the proper officer,
who will deliver such order to the accused and will carry it into
effect by delivering to him the copy of the charges and
specifications, and, if an officer, by receiving his sword."
Navy Regulations of 1893, art. 1785, p. 462.
