Swaim v. United States, 33

• Decision Date: 01 March 1897
• Docket Number: No. 33,33
• Citation: 165 U.S. 553,17 S.Ct. 448,41 L.Ed. 823
• Parties: SWAIM v. UNITED STATES
• Court: U.S. Supreme Court

165 U.S. 553

17 S.Ct. 448

41 L.Ed. 823

SWAIM

v UNITED STATES.

No. 33.

March 1, 1897.

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 12 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.

Benj. Butterworth and J. H. Gillpatrick, for appellant.

Atty. Gen. Harmon, for the United States.

Mr. Justice SHIRAS delivered the opinion of the court.

The theory of the claimant's petition was that the sentence 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 courtsmartial 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. U. S., 109 U. S. 336, 3 Sup. Ct. 202, 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 courtmartial, 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, 6 Sup. Ct. 570, 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 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 offense is himself the accuser or prosecutor, and that as, in the present case, Gen. 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 millitary 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 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 com- mittee is advised that the president of the United States has at all times, when, in his opinion, it was expedient, constituted general courtsmartial.

'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 Maj. R. N. Scott, with directions to prepare charges and specifications against Gen. Swaim; and on June 30, 1884, the president...