
    LIEUTENANT KEYES’S CASE.
    Edward L. Keyes v. The United States.
    
      On the Proofs.
    
    
      An officer in the Army in dismissed by the President pursuant to the sentence of court-martial. He insists that Ms dismissal was illegal, decause an office who preferred one of the charges was a member of the court and a witnet for the prosecution.
    
    
      C. Whore an officer on trial, having an opportunity to object to any member of the court-martial, makes no objection to one who preferred one of the charges and will be a witness to establish it, he consents to the court being so made up, and cannot question its jurisdiction for that reason.
    [. Judicial proceedings can be assailed or questioned collaterally only when the court in which they occurred was without jurisdiction.
    
      The Reporters’ statement of tbe case:
    Tbe following- are tbe facts of tliis case as found by tbe court:
    I. On tbe 27th day of July, 1872, tbe claimant was appointed econd lieutenant in tbe Fifth Kegiment of Cavalry, and on tbe Hi day of August, 1872, be accepted said appointment.
    II. At the time of the occurrence of tbe matters hereinafter it forth, Wesley Merritt was colonel of said regiment.
    III. On tbe 1st day of February, 1877, under orders issued by unmand of Brigadier-General Crook, commanding tbe Depart-Lent of tbe Platte, a general court-martial met at Cheyenne, Vyo., and tbe following officers were by said orders detailed ) compose said court, all of whom were present when tbe Dirt met, to wit: Col. John H. King, Ninth Infantry; Col. obn E. Smith, Fourteenth Infantry; Col. Franklin F. Flint, 'ourth Infantry; Col. Wesley Merritt, Fifth Cavalry; Lieut, ol. Luther P. Bradley, Ninth Infantry; Maj. Montgomery ■ryant, Fourteenth Infantry; Maj. Henry G. Thomas, Fourth ifantry; Capt. Andrew S.Burt,Ninth Infantry; Capt. Edwin 1. Coates, Fourth Infantry; First Lieut. Leonard Hay, adjutant ‘inth Infantry, judge-advocate.
    IY. Before tbe said court tbe claimant was put on trial; and aving been called before tbe court, and beard tbe order ap-ointing it read, was asked if be bad any objection to any memer of tbe court present named in tbe order, to which be replied l tbe negative.
    Y. Tbe claimant having no objection to offer to any member f tbe court, tbe court was theii duly sworn by tbe judge-advo-ite, and tbe judge-advocate Avas duly sworn by tbe president f tbe court; all of which oaths were administered in tbe pres-nce of tbe accused.
    YI. Tbe claimant Avas then duly arraigned upon four charges ad specifications; tbe first three of which were preferred by lent. Col. E. A. Carr, Fifth CaAralry, and tbe fourth by tbe lid Col. Wesley Merritt.
    
      VII. On tbe trial tbe accused was, by leave of tbe court, rep resented by counsel of bis own selection.
    VIII. When arraigned, tbe accused pleaded not guilty to al of said charges and specifications.
    IX. Tbe trial then proceeded, and the said Col. Wesley Merritt was sworn as a witness on the part of the government, and gave testimony in support of the charge and specifications preferred by him, but gave no testimony iu regard to the charges and specifications preferred by Lieut. Col. E. A.- Carr.
    X. The day after the accused pleaded not guilty to all the charges and specifications as aforesaid, he asked leave of th< court to withdraw that plea as to the first and second specifications of the second charge, and as to that charge, and to ente] a plea of guilty thereto; and such leave was given him: anc thereupon he entered a plea of guilty accordingly.
    XI. The said Col. Wesley Merritt was not examined furthe: as a witness in the cause then as above stated, but he continued to sit as a member of the court throughout the trial, and par ticipatecl in rendering the final judgment of the court in tin case.
    XII. At the close of the evidence the accused submitted t< the court, in writing, a statement of his defense, which wa¡ read to the court. It contained no objection or reference t< the participation of Col. Wesley Merritt as a member of the cour in the trial, or to his having been sworn and examined as : witness on behalf of the government, as aforesaid.
    XIII. The court found the accused guilty of all the aforesaid charges and specifications, and sentenced him to be dismissed from the service. ,
    XIV. The proceedings, findings, and sentence of the cour were approved by the President of the United States, wh< ordered that the sentence should take effect on the 28th day o April, 1877.
    XV. On the 27th of June, 187.7, the Senate not being in ses sion, the President appointed Henry J. Goldman, of New York to be second lieutenant, Fifth Begiment of Cavalry, and on tb 15th of October, 1877, the President nominated the said Gold man to the Senate for appointment as second, lieutenant h said regiment vice Keyes, dismissed, to date from June 3 5,1877 and the Senate advised and consented to the said appoint ment of said Goldman; and he was accordingly commissioned and still holds the office of such second lieutenant.
    
      
      Mr. J. Coleman for tlie claimant:
    It is well settled that courts-martial are courts of limited and pecial jurisdiction, and it is essential to their validity that it hould be affirmatively shown that they acted upon a case learly within their jurisdiction and that their proceedings were trictly regular. No presumption can be indulged in favor of he validity of the judgment of such a court, and its judgment s everywhere treated as a nullity, unless the record affirm a-ively shows both jurisdiction and regularity of proceeding. G-reenl. Ev., vol. 3, § 470; Duffield v. Smith and others, 3 S. & Í., 589; Brooks v. Adams, 11 Pick., 440; Mills v. Martin, 11 Johns., 7; Brooks v. Davis, 17 Johns., 148; Jones v. Craio-brd, 1 Johns. Gas., 20, and cases cited; Opinion of Attorney-xeneral Bush, Opins., vol. 1,177; Sheldon v. Sill, 4 How., 441; State v. Gaeheiibemier, 30 Ind., 63; Ohio, <&e., B. B. Co. v. Shultz, 31 Ind., 150; State v. My, 43 Ala., 568.)
    It is well settled that courts-martial and every other statutory ¡ourt, or courts of limited and special jurisdiction, must observe ill the principles of the common law, except in so far as special statutes have imposed a different rule for such courts. (G-reenl. 3v. vol. 3, § 469; Note 3 to same; see also Adye on Courts-Vlartial, 45; Benet on Courts-Martail, 244; De Hart’s Military Daw, 322; see also Mustratt’s Case, 2 MacA., 158; Simmons m Conrts-Martial, 485-487.)
    There is certainly no statute or regulation which provides 3hat an officer preferring charges, and being the only witness :o establish the same, may sit as a judge for the trial of such jharges and pass upon the weight and effect of his own testimony. If, therefore, it can be shown that such fact, in a common-law court, vitiate the proceedings, it must follow that these proceedings are void.
    Hickman’s Law and Practice of Naval Courts-Martial, p. 246, says: “ Officers who have been called upon to give evidence are not permitted to sit at trials.” (De Hart’s Military Law, 122, 123; see also Harwood on Naval Courts-Martial, 21; Benet on Military Law and Courts-Martial, 19; see also Scott’s Digest Military Law, § 634; Simmons’ Practice Courts-Martial, 222.)
    Hickman on Courts-Martial (ch. 1, p. 18) says: “That no man can be a judge in his own cause, is such a rule of justice that Lord Hobart asserts it to be more binding than eren an act of Parliament.”
    Tbe proceedings of a court composed of judges or magistrates either one. of whom is interested in the result, directly or remotely, either by preferring charges against the accused or by appearing as a witness against Mm, is improperly constituted, and any order or sentence made by them is void, and it is no answer that a majority were in favor of the finding, or that the judge testifying did not testify upon the charges that were sustained.
    Lord Denman, chief justice, in The Queen v. The Justices oj Hertfordshire, 6 Ad. & E., 753, says: “We must take care that interested parties do not join in deciding cases.” And Paterson, justice, in same case, says: “ I think that it is very dangerous to allow an interested person to join, whether the majority turn on his vote or not. The magistrates discuss the question among themselves, and it is impossible to say what effect that discussion may have on the decision. The real question is, has an interested person taken any part at all?” And the court held: “If any one of the magistrates hearing a case at sessions be interested in the result, the court is improperly constituted.”; Br. L. M., 4th ed., 119-122; Stockioell v. White-Lake, 22 Mich., 341; 3 Chit. G-. P., 9; Sigourney et al. v. Sibley et al. 21 Pick., 101; see also David Cottle, Appellant, &e., 5 Pick., 482; Coffin v. Cottle, 9 Pick., 287.)
    In Brooks v. Adams, 11 Pick., 440, objection was made that the court-martial was not legally organized and authorized to act as a court-martial, because the judge-advocate was not legally appointed, and the court said: “Had the individual assuming to act as judge-advocate any legal right to perform the duties of that office? If not, there was no legal tribunal, and the whole proceedings Avere coram nonjudice.” (See also Brooks v. Davis, 11 Pick., 149.)
    It is claimed that “It was the privilege of the accused to object to any member of the court.” Yes, it was his prmlege; but his omission to exercise it conferred no jurisdiction upon the court. If the court, as constituted, was an improper court to pass upon the whole case, neither the silence of the respondent nor his written waiver or consent could confer jurisdiction or cure a defect in the organization of the court. A defendant in any criminal proceeding, either before a court-martial or com-non-law court, may remain silent tinring the trial, and subse-luently raise any objection, well founded in law, to the judgment rendered against him or to the jurisdiction of the tribunal by ¡vhieh he was tried. It is a proposition that may be laid down without qualification, that consent cannot confer jurisdiction. Mordecai r. Lindsay, 19 How., 199; Montgomery v. Anderson, 21 b., 386 ; 'Walker x. Kynett, 32 Iowa, 524; Bice x. State, 3 Banks, Kans., 142; Lindsay v. McClelland, 1 Bibb, 262; Bents x. 9-raves, (3 McCord, 280; Folby v. People, Breóse, 31; Fallcen-rnrgh y. Cramer, Coxe, 31; Parker v. Mmday, ib., 70; Balance v. Forsyth, 21 How., 389; Jackson x. Ashton, 8 Pet., 148; 8. B. Co. x. Nelson, 62 Mo., 585; State v. Judge, &c., 21 La. Ami., 258; People x. Cancemi, 7 Abb. Pr., 271.)
    Jurisdiction, when not conferred by law, cannot be acquired ly consent of parties. (Dobson x. Scaggs, 47 Mo., 285; Coves x. Ward, 47 Mo., 289; Nazro x. Cragin, 3 Dillon, 474; Sedg. 3tat. Const. L., 109; Coffin x. Tracy, 3 Crain, 129; Pudley x. 1layhew, 3 Com., 12; sec also Pavis x. Packard, 7 Pet., 275.)
    In Oaldey x. Aspinwall, 3 Com., 547, which was a case where >ne of the judges of the court of appeals of the State of New fork was of consanguinity to one of the parties, and sat on the leaning of the case in court by the consent of the parties, it was held that the court had not jurisdiction, and the judgment was vacated. (See also Low x. Bice, 8 Johns., 409; Clayton x. Perdun, 13 Johns., 218; Edwards x. Bussell, 21 Wend., 63; 21 Pick., 101.)
    It is impossible to determine from this record upon what par-icular charge the sentence rested. Therefore, if the court as ionstituted was incompetent to hear and determine any one harge made, it must follow that the sentence which rests upon he general conviction upon all the charges cannot be sustained. Ill the officers constituting the court must be presumed to have «inferred together in regard to the judgment to be rendered rad the sentence to be pronounced. (Queen x. The Justices of Hertfordshire, 6 Ad. & E., 753, and other cases before cited.)
    It cannot be known whether a majority of the court would lave consented to the sentence of dismissal without conviction ipon the charges and specification preferred by Colonel Merritt. They entered into the case upon which the court passed sentence )f dismissal. And if the court as constituted was incompetent ;o convict upon those charges, then sentence which rested tbereon, as well as upon the other charges, must be held to be void. (Winsor v. McVeigh, 93 U. S., 274, ex parte Seed, U. S.)
    Notwithstanding the accused confessed his guilt and pleaded guilty, he is not estopped from now controverting the jurisdiction the court before whom he was tried. (Duffield v. Smith and others, 3 8. & K., 589; 1 Sannd., 73; 4 Dal., 11; 2 Wils., 385; IFreem., 322; 2 Mod., 29; Bull. N. P., 83; 10 Co., 51; The Marshalsea Case.; see also Oaldey v. Aspinwall, 3 Comst., 547, and cases cited.)
    
      Mr. George 0. Wing (with whom was the Assistant Attorney-General, for the defendants:
    Defendants contend that it is not essential in order to fully defend this action to go into the question of the legality or illegality of the court-martial proceedings, for—
    Even if the order of dismissal was not in itself efficient, it became so by the President’s appointment of his successor, with the advice and consent of the Senate.
    If claimant’s conduct had never been the subject of charges, and a court-martial had never been convened, he would still have been dismissed from the service June 15,1877, because the President appointed, with the advice and consent of the Senate, and commissioned another to the office claimant held. This removed him. (McMratWs Case, 12 C. Cls. B.)
    This Constitutional right to appoint cannot be restrained, because the effect of exercising it would conflict with a statute against removal.
    But defendants further maintain that claimant was dismissed in pursuance and in execution of a sentence of a legally constituted tribunal having jurisdiction of the subject-matter. The judgment of such a court is final and absolute, and cannot be impeached in a collateral proceeding. (Opinion of Attorney-General Devens, dated January 19, 1878, in this same case.)
    The objection is as to what took place after the court was rightly organized and jurisdiction was complete. This at most can be regarded as an irregularity which could only be corrected at the time or in the subsequent proceedings in the nature of an appeal. It can be raised in no manner after the approval of the sentence by the final revisory authority, the President, for this renders the case res ailjudieata.
    
    
      Tlie conclusive effect of such a judgment is expressed by Attorney-General Nelson (4 Opins., 275).
    The authorities cited by claimant go no further than to authorize an inspection upon collateral proceedings as to the jurisdiction of the special court. Such a right is unquestioned.
    Even if this court should determine that the judgment of dismissal rendered and executed in this case does not in itself conclude, defendants assert that the conduct of Colonel Merritt, which is the only subject of complaint here, was not only not against the law and practice governing court-martial proceedings, but required by them.
    Greenleaf, § 487, says: “ The rules in regard to the competency of witnesses are the same in courts-martial as the courts of common law. Hence, as we have seen, the prosecutor is admissible as a witness, as also are the members of the court.”
    And that this practice should prevail in courts-martial is necessary to prevent a failure or delay in justice, because the court by its constitution is both judge and jury, and the number of officers is limited.
    So it is recognized by all the commentators upon courts-martial.
    “In many situations general courts-martial are with difficulty assembled, and it would be often next to, if not absolutely, impossible to furnish a different set of officers on collateral trials” (Simmons, p. 228).
    Again:
    “ It does not seem incompatible that such a member (who sits in the united capacity of judge and juror) be sworn in open court, and, after having given his testimony to the matter of fact at issue, that at court-martial, upon the same principle as a juror, he may resume his seat as a member of the court.” (2 McA., 89; Maltby, 48; 2 Hawk., oh. 46, § 17; Kennedy, 109; Hughes, 63; Tyler, 270; Simmons, 304; Macomb, § 129.)
    Claimant must have been dismissed if there had been no other ' charge than the first, and it was not discretionary with the judges whether they should inflict dismissal, but only whether, in view of his offense under the 2d and 3d charges, they should not add to the sentence they were obliged to pronounce upon the 1st charge. When, therefore, they inflicted only what the law required, their consultation must have been favorable to claimant, since, as far as they had power or discretion, they spared him punishment.
    
      The defendant was asked before trial if be bad any objection to. any of tbe members of tbe court, and be replied in tbe negative ; be was present with counsel during tbe trial and made no objection, nor did be signify any objection, either to tbe commanding general, for whose approval tbe findings and sentence were to be submitted, or to tbe President, tbe final reviewing authority.
    If a possible defense was waived or neglected, it must be held to have occurred with full knowledge that that was tbe only opportunity be could have, and that be could reserve no advantage to be indirectly taken in another court which bad not authority to bear and determine accusations against tbe articles of war.
   Drake, Cb. J.,

delivered tbe opinion of tbe court:

Tbe claimant’s demand rests upon tbe assumption that ever since tbe 2Sth of April, 1877, be has been, and still is, a second lieutenant in tbe Fifth Kegiment of Cavalry, in tbe United States Army, and is entitled to pay as such from that day to tbe present time.

On that day, pursuant to tbe sentence of a court-martial approved by tbe President, be was dismissed from tbe service. He claims that bis dismissal was a nulbty, because tbe court-martial bad no jurisdiction to try him, and therefore that its sentence was void and did not authorize bis dismissal.

He bases this position not on any illegality in tbe convening of tbe court, nor upon tbe omission of any act or proceeding legally necessary to its due constitution as a court-martial, but upon tbe fact that Colonel Merritt, who bad preferred tbe fourth charge and specifications against him, and was sworn as a witness on tbe part of tbe government to sustain that charge, sat throughout tbe trial and participated in tbe judgment of tbe court. '

Tbe whole record of tbe court-martial is before us, and there is therefore no room for dispute as to tbe facts.

From that record it appears that before tbe members of tbe court were sworn in as such, tbe claimant beard tbe order convening it read, and was asked if be bad any objection to any member of the court, to which be replied in tbe negative. This was a consent on bis part to tbe participation of Colonel Merritt in. tbe trial, and it is too late now for tbe claimant to insist — if, indeed, be could ever do so successfully — tbat tbe jurisdiction of tbe court was lost by tbe presence of tbat officer as one of its members. Tbe case is analogous to a consent given by a defendant to be tried by a judge wbo is of kin to tbe opposite party, or by a jury, one of whom, when examined as to bis qualifications as a juror, declared tbat be bad formed and expressed an opinion tbat tbe defendant was guilty. In neither sucb case could it be effectively claimed tbat tbe jurisdiction of tbe court was lost.

If, then, tbe jurisdiction of tbe court-martial was not lost by tbe presence of Colonel Merritt as one of its members, its proceedings cannot in any way be impeached in this court; for-no doctrine is better settled than tbat judicial proceedings can be assailed or questioned collaterally only when tbe court in which they occurred was without jurisdiction to take them. (Thompson v. Tolmie, 2 Pet. 157; Voorhees v. Bank United States., 10 ib, 449.)

Tbe claimant’s petition must be dismissed.

Nott, J.,

concurring:

I am of tbe opinion tbat when an officer has been removed and bis successor appointed and confirmed, this court cannot inquire into tbe legality or regularity of bis removal.  