The word "arrest " as employed in Article 43 of 1624, Rev.Stat.,
requiring service of the charge on which the accused is to be tried
by court martial, does not relate to the preliminary arrest or
detention of an accused person awaiting the action of higher
authority to frame charges and specifications and order a
court-martial, but to the arrest resulting from preferring the
charges by the proper authority, and the convening of a
court-martial.
The provision in Article 38 of 1624, Rev.Stat., that no
commander of a fleet or squadron shall convene a general
court-martial without express authority from the President was
enacted in 1862, and will be construed as intending to apply to
waters within the continental limits of the United States, and not
to waters in the territory beyond the seas acquired since the
passage of that act, and the acquisition whereof was not
contemplated at that time.
On May 26, 1899, John Smith was serving under enlistment as a
fireman of the first class on board the United States naval vessel
Yorktown, then at anchor in Iloilo harbor, Philippine
Islands. On the date named, Smith was reported to the commanding
officer of the
Yorktown as having refused to do duty, and
consequently such officer ordered him "put under sentries as a
prisoner in single irons for safekeeping to await trial by a
general court-martial." Subsequently, on June 30, 1899, Rear
Admiral Watson, the Commander in Chief of the United
Page 197 U. S. 387
states naval force on the Asiatic station, convened a general
court-martial, to meet on July, 3, 1899, for the purpose of trying
accused persons who might be legally brought before the court, and
on the same day a charge was preferred against Smith, by the rear
admiral, accompanied with a specification, for refusing to obey a
lawful order of his superior officer. Smith, who, as already
stated, had been placed under arrest on May 26, 1899, was served on
July 1, 1899, with a copy of the charge and specification which had
been preferred against him, and an extra watch was put over him as
well as over other prisoners who were being held for trial. On July
5, 1899, Smith was sent under guard before the court-martial. He
was tried, found guilty, and sentenced
"to be confined in such place as the Secretary of the Navy may
direct for a period of one year, to perform extra police duties
during such confinement, to lose all pay that may become due him
during such confinement, except the sum of three dollars ($3) per
month for necessary prison expenses, and a further sum of $20 to be
paid him at the expiration of his term of confinement, when he
shall be dishonorably discharged from the United States Navy."
The term of imprisonment prescribed in the sentence was somewhat
mitigated by the Secretary of the Navy. Thereafter, on being
released, Smith sued in the Court of Claims to recover the pay
which would have been earned by him had he been entitled to receive
the same during the period covered by the sentence. The right to
recover was based on the averment that a copy of the charge had not
been served on Smith when he was originally put under arrest on May
26, 1899, it being claimed that for this reason the judgment of the
court-martial was void. After finding the facts as above recited,
the Court of Claims concluded as matter of law that the claimant
was entitled to recover, and from the judgment entered upon such
finding the government appealed.
Page 197 U. S. 391
MR. JUSTICE White, after making the foregoing statement,
delivered the opinion of the Court.
Article 43 of § 1624 of the Revised Statutes, upon which
the Court of Claims based its legal conclusion that the action of
the court-martial in question was void because the charge and
specification were not served upon the claimant at the time of the
original arrest, reads as follows: "The person accused shall be
furnished with a true copy of the charges, with the specifications
at the time he is put under arrest."
It is conceded by the findings that at once, when the charge and
specification were formulated by Rear Admiral Watson and the
court-martial was ordered to be convened, a copy of the charge and
specification was served upon Smith. It is also established by the
findings that no objection as to tardiness of service was made at
the time of trial. Conceding,
arguendo solely, and without
so deciding, that, under these circumstances, the objection as to
the lateness of the service was jurisdictional, and could be
collaterally inquired into, we think the contention is wholly
devoid of merit. Nearly ten years before the trial in question was
had, in the year 1890, the Secretary of the Navy submitted to the
Attorney General the question of whether the arrest referred to in
Article 43 related to the preliminary arrest which might be
consequent upon the commission of an offense, or applied to the
arrest made after charges had been formulated and a court-martial
ordered. The Attorney General advised that the word "arrest," as
employed in Article 43, did not relate to the preliminary arrest or
detention of an accused person awaiting the action of higher
authority to frame charges and specifications and order a
court-martial, but to the arrest resulting from the preferring of
the charges by the proper authority and the convening
Page 197 U. S. 392
of a court-martial. 19 Opinions of Attorney General 472. T he
reasoning by which the Attorney General reached the conclusion just
stated we think was absolutely conclusive. Doubtless the opinion
became the rule of practice in the Navy, and the construction
affixed by the Attorney General to the statute was sanctioned by
this Court in
Johnson v. Sayre, 158 U.
S. 109, and such construction has been reiterated in an
opinion announced this day.
Bishop v. United States,
197 U. S. 334.
Whilst these considerations dispose of the contentions raised
and passed on below, a new ground for reversal was urged at bar,
founded on Article 38 of § 1624 of the Revised Statutes. That
Article reads as follows:
"Art. 38. General courts-martial may be convened by the
President, the Secretary of the Navy, or the Commander in Chief of
a fleet or squadron, but no commander of a fleet or squadron in the
waters of the United States shall convene such court without
express authority from the President."
Although it is not denied that Rear Admiral Watson was a
commander of a fleet within the meaning of that expression as
employed in Article 38, it is insisted that, as he convened the
court-martial while in Manila Bay, about six weeks after the treaty
with Spain by which the Philippine Islands were acquired by the
United States, therefore the fleet or squadron under his command
was "in the waters of the United States," within the meaning of
those words as employed in the enactment in question, and there was
no power in the Commander in Chief to convoke a court-martial
without express authority from the President, which is not found to
have been given. This objection, if well taken, is jurisdictional,
but, in our judgment, it is without merit, and we reach this
conclusion wholly irrespective of the status of the Philippine
Islands.
The clause in question was originally enacted in 1862, before
even the acquisition of Alaska, and was intended, we think, to
apply to those waters within what was termed by Congress in the Act
of March 3, 1901, 31 Stat. 1107, 1108, the continental
Page 197 U. S. 393
limits of the United States. In other words, the provision in
question did not take into view the dominion or sovereignty of the
United States over territory beyond the seas and far removed from
the seat of government, but contemplated waters within the United
States in the stricter and popular sense of the term. Looking to
the language used, in the light of the surrounding circumstances
and the purpose which it was intended to accomplish,
Platt v.
Union Pacific R. Co., 99 U. S. 64, it
is, we think, manifest that the prohibition against the convocation
by the commander of a fleet or squadron of a general court-martial
without the previous authorization of the President was intended to
be operative only when the fleet or squadron was in a home port, as
above defined. That is to say, that Congress contemplated the
necessity of an order from the President when the circumstances
supposed to require the convening of the court-martial could be
with facility submitted to the President for his action in the
premises. To give a broad meaning to the expression "waters of the
United States," as employed in Article 38, by construing those
words as referring, not only to the home waters, but to far distant
waters, would, we think, defeat the plain purposes of Congress, and
seriously impair, if not destroy, an important power vested in the
commander of a fleet or squadron when at distant stations, remote
from the home country. Certainly, if the remoteness from the
continental limits of the United States is immaterial, and the
restriction of Article 38 is applicable to the commander when his
fleet or squadron is within waters thousands of miles removed from
the boundaries of the United States, in the restricted sense of
that term, no good reason is apparent why the commander of a fleet
or squadron should not have been forbidden, without the leave of
the President, to convoke a general court-martial irrespective of
where his fleet or squadron might be situated.
Judgment reversed.
