Ex parte Reed

Decision Date01 October 1879
PartiesEX PARTE REED
CourtU.S. Supreme Court

MR. GEORGE S. BOUTWELL presented the following petition of Alvin R. Reed for a writ of habeas corpus:——

'To the Supreme Court of the United States:

'The petition of Alvin R. Reed, of Medford, in the county of Middlesex and State of Massachusetts, respectfully shows,——

'First, That on or about the twenty-sixth day of June, A.D. 1878, your petitioner was ordered to appear before a naval general court-martial convened by Rear-Admiral Ed. T. Nichols, on board the U. S. ship 'Essex,' then stationed in the waters of Rio Janeiro, South America, to answer to certain charges and specifications of malfeasance in the discharge of his official duties as clerk to George L. Davis, then a paymaster in the navy of the United States.

'Secondly, That in obedience to said order your petitioner appeared before said court-martial, and on the fifth day of July A.D. 1878, pleaded not guilty to the several charges and specifications then made and read to him; and that thereupon, from day to day, the trial proceeded until the sixteenth day of July, A.D. 1878, when the said court-martial found him guilty of certain of the charges and specifications.

'Thirdly, That on the said sixteenth day of July, A.D. 1878, the court passed sentence upon your petitioner, made a record thereof in their proceedings, and transmitted the sentence to Rear-Admiral Nichols after the members of the court had affixed their signatures thereto.

'Fourthly, That on the nineteenth day of July, A.D. 1878, Rear-Admiral Nichols returned the said sentence to the president of the court-martial, with a communication in writing, in which the admiral says that the finding is in accordance with the evidence, but regrets to be compelled to differ with the court as to the adequacy of the sentence.

'Fifthly, That on the twentieth day of July, A.D. 1878, the court-martial proceeded to revise the sentence so returned, and adopted an order that the following sentence be placed on the record in substitution of the former sentence, which is hereby revoked:——

"That the said Alvin R. Reed, paymaster's clerk, U. S. Navy, be imprisoned in such place as the honorable Secretary of the Navy may designate for the term of two years; to lose all pay which may become due him during such confinement, excepting the sum of $10 per month, this loss amounting to $1,960; to be fined in the sum of $500, which fine must be paid before or at the end of the term of confinement. Should such fine not be paid at end of term of confinement, to be detained in confinement without pay until such fine be paid, and at the expiration of term of confinement to be dishonorably dismissed from the naval service of the United States.

"W. S. SCHLEY, Commander U. S. N., President of Court.

H. T. STANCLIFF, Past Assistant Paymaster and member.

'CHAS. H. BLACK, Lieutenant and member.

E. S. HOUSTON, Lieutenant and member.

ASA WALKER, Lieutenant and member.

W. P. DAY, Lieutenant and member.

ROBERT L. MEAD, Captain U. S. M. C., Judge Advocate.'

'Sixthly, That the second sentence, so imposed, was more severe upon your petitioner than the sentence passed upon him on the sixteenth day of July, A.D. 1878, and revoked by the court-martial as aforesaid.

'Seventhly, And your petitioner further represents, that in his capacity as paymaster's clerk, as aforesaid, he was not amenable to trial by court-martial, nor subject to the jurisdiction of said court.

'Eighthly, That under said second sentence your petitioner has been for a long time, and now is confined on the U. S. ship 'Wabash,' at the navy yard, Boston, Mass., and under the custody of Capt. S. L. Breese, commander of said ship.

'Ninthly, That on or about the twelfth day of April, A.D. 1879, your petitioner presented his petition to the Hon. John Lowell, Circuit Judge of the United States in the first circuit, praying for a writ of habeas corpus; that a hearing thereupon was had before the Hon. Thomas L. Nelson, Judge of the District Court, sitting in the said Circuit Court, and such proceedings were thereon had that on the twelfth day of June, A.D. 1879, the said Circuit Court, to which said writ was returnable, remanded your petitioner and discharged said writ.

'And your petitioner now is, and ever since the said twelfth day of June, A.D. 1879, has been, a prisoner confined on said ship, at the navy yard, at said Boston, in the custody of said S. L. Breese, under the said illegal sentence pronounced on him on the said twentieth day of July, A.D. 1878, and restrained of his liberty in violation of the Constitution of the United States and of the laws of the country.

'Wherefore your petitioner prays that a writ of habeas corpus issue directed to the said S. L. Breese, commander of the said ship 'Wabash,' commanding him to produce your petitioner before this honorable court, at the city of Washington, at such time as the court shall direct, and that he then and there show the cause of your petitioner's detention, to the end that your petitioner may be discharged from custody.

'And your petitioner also prays that a writ of certiorari may issue to John G. Stetson, clerk of the U. S. Circuit Court for the District of Massachusetts, commanding him to certify to your honorable court the petition of your petitioner before referred to, the return thereto, and all the records of said court respecting the same, and the adjudication thereon, to the end that the errors therein may be corrected by this honorable court.

'And your petitioner will ever pray.

'ALVIN R. REED.

'Dated BOSTON, Sept. 3, 1879.'- The petition was duly verified, and the facts therein stated were set forth with more fulness and particularity in an agreed statement filed therewith.

Mr. George S. Boutwell for the petitioner.

I.

The prisoner is now held by order of the Circuit Court, whereby he was remanded into the custody of Captain Breese, and this proceeding is in the nature of an appeal, in which is included the power of revision in the exercise by this court of its appellate jurisdiction. Ex parte Yerger, 8 Wall. 85; Ex parte Vallandigham, 1 id. 243.

Courts-martial are exceptional in their organization, jurisdiction, modes of procedure, and the rules by which findings are made or judgments pronounced. In an ordinary judicial tribunal, nothing, therefore, is to be presumed in their favor. Brooks v. Adams, 11 Pick. (Mass.) 442; Dynes v. Hoover, 20 How. 65.

Paymasters' clerks are only recognized indirectly in the chapter on the organization of the navy. By sects. 1386, 1387, 1388, Rev. Stat., paymasters and assistant paymasters are, under certain circumstances, allowed clerks. By sect. 1556 their pay is fixed. For the same reason, by sect. 1367, the admiral and vice-admiral are each allowed a secretary to aid in the discharge of their respective duties. Sect. 1366 provides that 'the active list of the pay corps of the navy shall consist of thirteen pay directors, thirteen pay inspectors, fifty paymasters, thirty passed assistant paymasters, and twenty assistant paymasters.' Sect. 1383 requires every paymaster, passed assistant paymaster, and assistant paymaster to give bonds for the faithful performance of his duties. No such obligation is laid upon paymasters' clerks, nor are they officers holding either commissions or warrants, nor are they deemed petty officers. Sect. 1410.

If a reasonable doubt exists whether paymasters' clerks are of the naval force and subject to the jurisdiction of a court-martial, the petitioner is entitled to the writ.

II.

1. There is no common law of the United States. Wheaton v. Peters, 8 Pet. 591. As the existence, jurisdiction, and powers of courts-martial are exceptional, with stronger reason it can be maintained that such courts have no common law, and hence any reference to the usages or laws of Great Britain is inapplicable to this case. In one particular, by the statute of 1799 (1 Stat. 715), the common law of nations, which was the law of Great Britain, was incorporated in our naval code. The statute was in these words: 'All faults, disorders, and misdemeanors which shall be committed on board any ship belonging to the United States, and which are not herein mentioned, shall be punished according to the laws and customs in such cases at sea.' It was superseded by art. 22, sect. 1624, Rev. Stat., which provides that 'all offences ommitted by persons belonging to the navy which are not specified in the foregoing articles shall be punished as a court-martial may direct.'

The adoption, however, of one common-law rule by statute excludes the idea that, by virtue of the Constitution, the naval usages and laws of Great Britain became a part of our naval code.

As Reed was tried upon the charge of malfeasance and misdemeanors prohibited specifically in the rules and articles for the government of the navy, his case did not fall under art. 22.

2. Sect. 1624, Rev. Stat., provides a system for the organization and conduct of naval courts-martial, and their proceedings are valid only when the statutes are followed and obeyed.

3. As the case of the government is now understood by the counsel for the petitioner, the act of Rear-Admiral Nichols, in sending the sentence of the 17th of July to the court for revision, is justified under art. 54 of sect. 1624 of the Revised Statutes, which declares that 'every officer who is authorized to convene a court-martial shall have power, on revision of its proceedings, to remit or mitigate, but not to commute, the sentence of any such court which he is authorized to approve and confirm;' and by sect. 262 of the rules and regulations for the administration of law and justice in the navy, as authorized or confirmed by sect. 1547 of the Revised Statutes, which provides that 'the authority who ordered the court is competent to direct it to reconsider its proceedings and sentence, for the purpose of correcting any mistake which may have been...

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