
    JOHN SMITH v. THE UNITED STATES.
    [No. 21636.
    Decided February 2, 1903.]
    
      On the Proofs.
    
    This is the same ease that was decided upon demurrer in 36 C. Cls. R., 304. It now appears that the prisoner admitted in the presence of the court-martial that he had received a copy of the charge and specifications four days before he was brought to trial. The question now before the court is whether a naval court-martial has jurisdiction where the person accused was not furnished with a copy of the charge and specifications at the time when he was put under arrest but was furnished with them four days before the trial and raised no objection to the jurisdiction of the court or to proceeding to trial.
    I.In the Navy a man may be arrested and confined without an assigned reason being given; but this confinement is limited by statute to “not exceeding ten days.” (Rev. Stat., 281, art. 24.)
    II.A longer confinement than ten days can be imposed on a man in the Navy only by sentence of a court-martial; but there may be further “ confinement, with or without irons, single or double,” when “necessary, in the case of a prisoner to be tried by court-martial.” (Ibid.)
    III.The power of indefinite confinement does not deprive a man in the Navy of any legal right or personal safeguard. The intent of the law is that he shall have a fair trial, and not be deprived of any of the means of establishing his innocence.
    
      IV. The provision that “the person accused shall he furnished with a true copy of the charges, with specifications, at the time he is put under arrest, and no other charges than those so furnished shall he urged against him at the trial,” can have but one meaning, and that meaning can not be expressed in plainer or simpler or more positive language than that of the statute. (Bev. Stat., p. 283, art. 43.)
    V. The initial sentence of the articles (Bev. Stat., 275) declares that “the Navy of the United States shall be governed by the following articles,” and there is nothing in the forty-third article which indicates that it is directory and not mandatory.
    VI.A court-martial is not invested with power to grant time to persons accused. All that it can do is to report the facts to the officer who convened the court and it will be a matter of discretion with him to grant or refuse further time to a prisoner who was not furnished with a copy of the charges at the time of his arrest. This is not equivalent to the safeguard given by the forty-third article, which is one of the rights contemplated by the Supreme Court when it said they 1 ‘ can neither he exposed to danger, nor subjected to the uncontrolled will of any man.”
    
    VII.Where the accused was not furnished with a true copy of the charges, • with.the specifications, at the time of his arrest or perhaps within ten days thereafter, the sentence of a naval court-martial forfeiting his pay was contrary to law and void. (Peelle, J., dissenting.)
    
      The Rej)orte)'s> statement of the case:
    The following are the facts of this case as found by the court:
    I. On the 20th of November, 1897, the claimant enlisted in the United States Navy as a’ fireman of the second class, to serve for three years from that date unless sooner discharged by proper authority. He served as such until discharged as hereinafter shown; and there remains due to him pay amounting to $376, uuless the same was legally forfeited to the defendants by the sentence of the court-martial, hereinafter set forth.
    II. On May 26, 1899, he was serving under said enlistment as a fireman of the first class, attached to and on board the U. S. S. Yorktown, a vessel of the United States naval force at that time on the Asiatic Station, the Yorktown being then at anchor in Iloilo Harbor, P. 1. On the same day he was reported by his superior officer to the commanding officer of the vessel as having refused to do duty, and that commanding officer awarded him the following punishment, namely: Put him under sentries as. a prisoner in single irons for safe-keeping, to await trial by general court-martial; and he was continuously held as a prisoner thereafter until July 5, 1899, when he ivas sent in the custody of a chief master at arms to appear for trial before a general court-martial then convened on board the U. S. S. Princeton, at Cavite, P. X.
    III. June 30, 1899, a charge in writing of “refusing to obey the lawful order of a superior officer” was preferred against claimant by Rear-Admiral Watson, the commander in chief of the United States naval force on the Asiatic Station, which specified the said offense; and on the same day, by order of the said commanding officer of the said U. S. S. Yorktown, the claimant, with other enlisted men of he"r crew, was ordered in double irons for safe-keeping.
    IY. Also on the same day, June 30, 1899, the said commander in chief appointed a general court-martial and ordered it to convene on Monday, July 3, 1899, on board the U. S. S. Monadnock, at Cavite, Ik I., for the trial of such persons as might legally be brought before it.
    V. At 10.30 a. m. July 1,1899, the claimant received a copjT of the charge and specifications so preferred against him; and on the same day an extra watch was ordered to stand guard over him and other prisoners then held for trial by-general court-martial.
    VI. On Wednesday, July 5, 1899, pursuant to an adjournment of Monday, July 3, the said general court-martial met on board the U. S. S. Princeton at Cavite, P. I., for the tidal of the claimant, and he was brought before the court at 10 o’clock a. m., in charge of the chief master at arms of the U. S. S. Yorktown.
    VII. The following is a true and complete copy of the record and the proceedings of the said general court-martial in the case of the claimant:
    “ Record of the proceedings of a general court-martial, convened onboard the O. S. A. Princeton, by virtue of a precept signed bp Bear-Admiral John C. Watson, U. S. Navy, commander in chief United States naval force on Asiatic station, a certified copy of which is appended, marked ‘A.’
    “U. S. S. PriNCetoN, Cavite, P. I.,
    “ 10.00 a. m., Wednesday, July 5,1899.
    
    “The court met pursuant to the adjournment of Moncky, July 3rd, and proceeded with the trial of John Smith, fireman, first class, U. S. Navy.
    
      “ Present: Commander Clifford H. West, U. S. Navy; Commander Charles C. Cornwell, U. S. Navy; Lieutenant-Commander Alexander McCracldn, U. S. Navy; Lieutenant Simon Cook, U. S. Navy; Lieutenant Albert N. Wood, U. S. Navy; Captain Charles G. Long, U. S. Marine Corps; First Lieutenant Smedley D. Butler, U. S. Marine Corps, members, and First Lieutenant Dion Williams, U. S. Marine Corps, judge-advocate.
    “The accused, John Smith, fireman, first class, U. S. N., appeared before the court, and, in reply to a question by the judge-advocate, stated that he did not desire counsel.
    “The precept and letter ordering the court to meet on board the U. S. S. Princeton, certified copies of which are appended, marked respectively ‘A’ and ‘A b,’ were read to the accused by the judge-advocate.
    “The accused was asked if he objected to any member present, and replied that he did not.
    “The judge-advocate was duly sworn by the president, and the members were severally duly sworn by the judge-advocate; all of which oaths were administered according to law, and in the presence of the accused.
    “In reply to an inquiry by the judge-advocate, the accused stated that he had received a copy of the charge and specifications preferred against him, 10.30 a. m. July 1st, 1890.
    “The court was cleared to examine the charge and specifications (original appended, marked 4O’) and to consider all matters preliminary to the trial.
    “The doors being opened, the judge-advocate and the accused entered, and it was- announced by the president that the court found the specifications in due form and technically correct.
    “In reply to an inquiry by the judge-advocate, the accused said that he was ready for trial.
    “All witnesses were directed to withdraw.
    “The judge-advocate read aloud a letter addressed to him, transmitting the charge and specifications preferred against John Smith, fireman, first class, U. S. N., original appended, marked 4 B.’
    . “The judge-advocate read aloud in the presence of the accused the charge and specifications of charge preferred against him, and arraigned the accused, as follows:
    '“Q. John Smith, fireman, first class, U. S. N., you have heard the charge and specifications of charge preferred against you; how say you, to the specification of the charge, ‘Guilty or not guilty?’
    " A. 'Not guilty.'
    " Q. To the charge, ' Guilty or n
    " A. ' Not guilty.'
    
      “The prosecution began here.
    “ George-T. Brownridge, chief machinist, U. S. Navy, appeared as a witness for the prosecution, and was duly sworn by the president in the presence of the accused.
    “1. Question. What is jmur name, rate, and present station ?
    “A. George T. Brownridge, chief machinist, U. S. Navy, U. S. S. Yorktown.
    “2. Q. Do you recognize the accused; if so, as whom?
    “A. Yes; as First-Class Fireman Smith.
    “3. Q. What duty were jrou performing on the twenty-sixth day of May, this year?
    “A. Chief machinist, U. S. S. Yorktown, at Iloilo.
    “4. Q. Did you detail the accused for any duty that day?
    “A. Yes, sir.
    “5. Q. What duty was it?
    “A. To stand watch.
    “6. Q. During which watch?
    “A. From twelve to four p. m.
    “7. Q. Did you tell the accused personally that he was detailed?
    “A. Yes, sir.
    “Cross-examined by the accused:
    “8. Q. In how many watches were the firemen standing?
    “A. In four, I think.
    “ 9; Q. When did I come off duty on the twenty-sixth day of May ?
    “A. At eight o’clock a. m.
    “10. Q. Then, why was I detailed to stand the twelve to four watch if the firemen were in watch in four?
    “A. By order, of the chief engineer a man going on liberty was second relief, you were to relieve him.
    “11. Q. What dut}’' did I perform on that day from eight a. m. until noon?
    “A.- Cleaning stations and bilges.
    “12. Q. Who was the man going on liberty in the second relief?
    “A. I don’t remember.
    “13. Q. Who was the chief engineer at this time?
    “A. Chief Engineer Cleever; I beg pardon, that’s a mistake, Mister Washington was chief engineer.
    “ 14. Q. Was I the next man for duty when I was detailed?
    “A. Yes; according to my orders.
    “Redirect examination by the judge-advocate:
    “15. Q. Did Mister Washington in giving you this order to detail the accused mention the name of the accused?
    “A. I had orders from Chief Engineer Cleever to appoint a second relief for a man going on liberty to take his watch. On this particular day Mister Cleever was not on duty. I told Mister Washington my orders, and he agreed -with them— made no alterations.
    “ 16. Q. Was the detail of the accused a regular one'!
    “A. Yes, sir; according to mv orders.
    “The accused had no further questions to ask this witness.
    “The court had no questions to ask this witness.
    “There being no further questions to ask this witness, his testimony was read aloud to him and by him pronounced to be correct, and having been cautioned by the president not to discuss matters pertaining to the trial, he withdrew.
    “The court then took a recess until 1 p. m.
    “The court reassembled at the expiration of the recess. Present, all the members, the judge-advocate, and the accused.
    “Pope Washington, assistant engineer, U. S. Navy, appeared as a witness for the prosecution, and was duly sworn by the president in the presence of the accused.
    “Examination in chief by the judge-advocate:
    “1. Question. What is your name, rank, and present station ?
    “A. Pope Washington; assistant engineer, U. S. Navy; attached to and serving on board the U. S. S. Yorktown.
    “2. Q. Do you recognize the accused? If so, as whom?
    “A. I do; as J. Smith, fireman, serving on board the Yorktown.
    “3. Q. What duty were you performing on the twenty-sixth day of May ?
    “A. Officer of the deck of the U. S. S. Yorktown, at anchor in Iloilo Harbor; also senior engineer officer on duty.
    “1. Q. Was the accused detailed for any duty on that da}r?
    “A. Yes; he was detailed to take the watch in the fire room from meridian to four p. m.
    “5. Q. Did he take the watch?
    “A. No.
    “6. Q. Why not?
    “A. He refused positively to do so.
    “ 7. Q. Was the accused ordered to take the watch, or not?
    “A. He was.
    “8. Q. By whom?
    “A. By the chief machinist on duty, and by myself.
    “9. Q. Was the accused regularly attached to the U. S. S. Yorktown at this time?
    “A. Yes.
    “The accused had no questions to ask this witness.
    “The court had no questions to ask this witness.
    “There being no further questions to ask this witness, his testimony was read aloud to him and bj^ him pronounced to be correct, and having been cautioned by the president not to discuss matter’s pertaining- to the trial, he withdrew.
    “The prosecution closes here.
    “The accused did not desire to call any witnesses, but submitted a written statement.
    “The court was cleared to examine it. The judge-advocate and the accused withdrew.
    “ When opened, the judge-advocate and the accused entered and the accused was informed that the court was ready to hear his statement, and it was read bj7 the judge-advocate and is appended, marked ‘1.’
    “The defense closed here.
    “The judge-advocate submitted the case to the court without remark.
    “The trial was finished.
    “The judge-advocate at this point invited the attention of the court to the article of the U. S. Navy Regulations relating to the introduction of evidence of previous convictions, and requested that in case the court found the accused guilty of the charge, or guilty in a less degree than charged, the court be opened to receive evidence of previous trials and convictions, if such exist.
    “The court was cleared for deliberation, all the parties to the trial, the judge-advocate withdrawing, and, after maturely considering the evidence adduced, called the judge-advocate before it and directed him to record that the court finds in the foregoing case of John Smith, fireman, first class, U. S. Navy, as follows:
    “The specification of the charge, ‘Proved.’
    “And that the accused, John .Smith, fireman, first class, United States Navy, is of the charge ‘ Guilty.’
    “The court was opened and the accused entered, and the president announced that the court was ready to receive evidence of previous convictions, as required by the U. S. Navy Regulations.
    “The judge-advocate then read aloud from the enlistment record of the accused two items, showing that the accused had been tried and convicted by summary court-martial. A copjT of this much of the said enlistment record is appended, marked ‘2.’
    “The court was then cleared to delibei’ate upon the sentence, the judge-advocate and the accused withdrawing, and after mature deliberation the judge-advocate was called before the court and directed to record the sentence of the court, as follows:
    “‘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 pajr 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 twenty dollars to be paid him at the expiration of his term of confinement, when he shall be dishonorably discharged from the United States Navy. Total loss of pay amounting to three hundred and seventy-six dollars ($376)'.’
    “C. H. West,
    “ Commander, U. S. Navy, President of the Court.
    
    “CHARLES C. CORNWELL,
    “ Commander, TJ. 8. Navy, and Member.
    
    “Alex. McCrackin,
    “lieutenant- Commander, TJ. 8. Nmy, and Member.
    
    “SlMON Cooic,
    
      “lieutenant, TJ. 8. Navy, and Member.
    
    “A. N. Wood,
    
      “Ldeutenant, TJ. 8. Navy, and Member.
    
    “Chas. Gr. LoNG,
    “ Captain, TJ. S. Marine Corps, and Member.
    
    “Smedley D. Butler,
    
      “First Lieutenant, TJ. 8. Marine Corps, and Member.
    
    “DioN Williams,
    
      “First Lieutenant, TJ. 8. Marine Corps, Judge-Advocate.
    
    “ The court then proceeded with the trial of John Skerry, corporal, U. S. Marine Corps.
    “C. H. West,
    “ Commander, TJ. 8. Navy, Coresident of the Court.
    
    “DioN Williams,
    
      “First Lieutenant, TJ. 8. Marine Corps, Judge-Advocate.
    
    “Flagship Baltimore,
    “Manila, I\ I., July 7th, 1899.
    
    “The proceedings, findings, and sentence in the foregoing-case of John Smith, fireman, first class, United States Navy, are approved.
    “The U. S. S. Yorktown is designated as the place of confinement until an opportunity offers for sending him to the United States in a public conveyance.
    “J. C. WatsoN,
    
      Rear-Admiral, United States Navy, Commander in “ Chief United States Naval Force on Asiatic Station.
    
    
      “United States Natal Fob.ce ON
    ‘ ‘ Asiatic StatioN, U. S. F. S. Baltimobe,
    “Manila, P. /., June 30th, 1899.
    
    “To Commander Clieeobd H. West, U. S. Navy,
    “ Commanding TI. B. 8. Princeton, Omite, P.I.:
    
    “By virtue of the authority vested in meas contained in article 38, section 1624, Title XV, chapter 10, of the Revised Statutes of the United States, a general court-martial is hereby ordered to convene on board the U. S. S. Monadnock, at Cavite, P. I., at 10 o’clock a. m. on Monday, July 3, 1899, or as soon thereafter as practicable, for the trial of John James Reggarty, coal passer, U. S. Navy, and of such other persons as may legally be brought before it.
    “The court is composed of the following members, any five of whom are empowered to act, viz: Commander Charles C. Coi’nwell, U. S. Navy; Lieutenant-Commander Alexander McCrackin, U. S. Navy; Lieutenant Simon Cook, U. S. Navy; Lieutenant Albert N.' Wood, U. S. Navy; Captain Charles G. Long, U. S. Marine Corps; First Lieutenant Smedley D. Butler, U. S. Marine Corps, and of First Lieutenant Dion Williams, U. S. Marine Corps, as judge-advocate.
    “No other officers can be summoned without manifest injury to the service.
    “ J. C. Watson,
    
      Pear-Admiral, United States Nary, Commander in
    
    “ Chief U. 8. Naval Force on Asiatic Station.
    
    “ I certify the above to be a true copy.
    “Dion Williams,
    
      ulst. It., U. 8. M. O., J. A.
    
    “U. S. Naval Foboe on Asiatic StatioN, “Flagship Baltimobe,
    
      “Manila, P. A, July 3, 1901.
    
    “SiR: The general court-martial of which you are president will hold its further session on board the U. S. S. Princeton at Cavite, P. I.
    “Very respectfully,
    “J. C. Watson,
    
      “Pear-Admiral, U. 8. Navy, Commander in Chief _
    _ “ U. 8. Naval Force on Asiatic Station.
    
    “ Commander C. H. West,
    “ U. 8. Nmy, U. 8. 8. Princeton, Cavite, P. 1.
    
    “I certify that this is a true copy.
    “Dion Williams,
    
      “First Lieut., U. 8. M. C., J. A.
    
    
      “ U. S. Naval Force on Asiatic Station, “Flagship Baltimore,
    
      “Manila, P. I., Jume SO, 1890.
    
    “Sir: I transmit herewith charge, with specification, against John Smith, fireman, first class, U. S. Navy, who will be tried before the general court-martial of which you are judge advocate, ordered to convene on board the U. S. S. Monadnock, Cavite, P. I., July 3, 1899.
    “You will summon such witnesses as may be required for his defense.
    “Veiy respectfulN,
    “J. C. Watson,_
    “Bear-Admiral, U. S. Mm/, Commander in Chief “U. S. Naval Force on Asiatic Station.
    
    “First Lieutenant Dion Williams,
    
      “US. Marine Corps,
    
    “ U. S. F. S. Baltimore, Mamila, P. I.
    
    “Asiatic Station, Flagship Baltimore,
    “ Manila, P. I., June SO, 1899.
    
    “Charges and specifications of charges preferred by Bear-Admiral John C. Watson, United States -Navy, commanding United States naval force on Asiatic Station, against John Smith, fireman, first class, United States Naiy.
    “ Charge.- — ’Refusing to obey the lawful order of his superior officer.
    “ Specification.- — In that the said John Smith, a fireman, first class, in the United States Navy, attached to and serving-on board the United States steamer Yorktown, at Iloilo, Philippine Islands, having, on the twenty-sixth day of May, eighteen hundred and ninety-nine, been ordered by Assistant Engineer Pope Washington, United States Naiy, the officer of the deck, to go on duty in the fire room of said vessel from noon until four hours post meridian of the said day, he having been previously detailed for this duty, did refuse to obey, and did willfully disobejr, the said lawful order of his superior officer, the said Assistant Engineer Pope Washington, United States Navy, who was then and there in the execution of the duties of his office.
    “ J. C. Watson,
    
      “Rear-Admiral, U. S. Navy, Commander in Chief _
    _ “US. Naval Force on Asiatic Station.
    
    “Witnesses: Lieutenant C. Thomas, U. S. N.; Assistant Engineer Pope Washington, U. S. N.; Chief Machinist Gf. T. Brownndge, U. S. N.
    
      “I certify that the accused received a true copy of this charge and specification at 10.30 a. m., July 1, 1899.
    “DioN Williams,
    
      “First Lieut. U. S. M. 61, J. A.
    
    “ statement’ oe ti-ie accused.
    “ To the President and Members of the Gourt:
    
    “ I respectfully state that when I was ordered to take the watch in question, from noon to four p. m., on May 26th, 1899, 1 felt that it was an injustice to me, and that I should not be required to perform more than my common share of the fire-room wTork.
    “I had come off watch at 8 a. m.; had worked hard from 8 a. m. until noon in the bilges under hot boilers, and also had my regular watch from 8 p. m. to midnight on that day.
    “ It was my intention, when I refused to take the watch, to see the commanding officer and protest against what I considered this injustice to me, but I became excited and said more than I intended. I realized, afterwards that I should have obeyed the order first and then appealed to the commanding officer.
    “ I beg the court, in adjudging my case, to take into consideration the excitement under which 1 was at the time, and the extra amount of work required of me.
    “ Very respectfully,
    “John Smith,
    
      “Fireman, First Glass, U. É. W.
    
    “ [Enlistment Record.]
    “U. S. S. Yorktown, 3d rate.
    “Enlistments, 1897.
    “Serial Number 30.
    “Enlistment record of Smith, John, rate, fireman, 2d class; enlisted November 12, 1897, at sea, to serve three years from this date. f
    - “ Previous naval service about 3 years. First enlisted Sept. 26, 1891, as F. 2 cl. Served apprenticeship, no; seaman gunner, no: last discharge Nov. 11, 1897, from the U. S. S. Yorktown, as fireman; holds C. S. C. No. F. D. 12981, and * * * good-conduct medals. Trade, fireman; citizenship, U. S.
    (Signed) “HeebeRT Winslow,
    
      “Lieut. Gomdr. U. 8. JV., Recruiting Officer.
    
    “Approved:
    “C. H. StocetoN,
    “ Gommanider U. 8. W,
    “ Commanding U. 8. 8. Yorhton, 3d Rate.
    
    “(The above to be executed and signed at the rendezvous or on board the vessel where the man is enlisted.)
    * * * * *
    “After the said trial of claimant the following order was issued:
    “General Court-Martial, ) “Navt Department,
    “Order No. 75. f “ Washington, September6,1899.
    
    *x- *
    “V. John Smith, fireman,'first class, U. S. Navy, having' been tried by general court-martial on board the U. S. S. Princeton and found guilty of ‘ refusing to obey the lawful order of his superior officer ’ was sentenced ‘ to be confined in 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 twenty dollars to be paid him at the expiration of his term of confinement, when he shall be dishonorably discharged from the United States Navy, total loss of pay amounting to three hundred and seventy-six dollars ($376).’
    “The sentence was approved by Rear-Admiral Watson, who convened the court. The prison at the navy-yard, Mare Island, has been designated as the place of confinement, the period thereof to take effect from July 7, 1899, the date of approval of the sentence.
    * * -X- *
    “Chas. H. Allen,
    
      “Acting Secretary.” .
    
      Mr. George F. Ormsly for the claimant.
    
      Mr. Felix Brannigan (with whom was. Mr. Assistant Attorney- General Fradt) for the defendants.
   Nott, Oh. J.,

delivered the opinion of the court:

When this case came before the court upon the demurrer (80 C. Cls. R., 304) it was understood that the petition fully and correctly set forth all the material facts of the case, and the court accordingly gave to the case all of the care and consideration which it could command in the belief that the decision would be final. The defendants, however, have come in and the case has gone to trial. The facts now found vary from those upon which the case was previously considered.

The principal question then before the court, and the only question upon which the court passed, was whether a person in the Navy, imprisoned on board a ship, could be brought to trial without having been “furnished with a true copjr of the charges, with the specifications” (Rev. Stat., p. 283, sec. 1624, art. 43), and without knowing specifically what the}1' were until he heard them read before the court on the trial. The petition contained an extract from the logbook, by which it appears that on the 1st of Jul3r, the accused being in confinement, the judge-advocate of the coming court-martial read the specifications to him. But in the case as now presented it appears by the record of the proceedings of the general court-martial that, “in reply to an inquiry by the judge-advocate, the accused stated that he had received a copy of the charge and specifications preferred against him, 10.30 a. m., July 1, 1899."

Two questions are now before the court: First, whether this recital in the proceedings of the court-martial is sufficient evidence — it not being a part of the judgment of the court — of the admission of the accused that he had received a copy of the charge and specifications preferred against him at a certain time; and, second, whether furnishing a man with a copy of the charge and specifications on the 1st July, who had been in close confinement for an offense committed'on the same ship, but at another place, since the 26th day of May, was a sufficient compliance with the statute which requires 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; and no other charges than those so furnished shall be urged against him at the trial.” (Art. 43.)

As oil the former bearing, the court confined its judgment to the first clause of the statute, “the person accused shall be furnished with a true copy of the charges, with the specifications,” so, on the present hearing, the court will confine its decision to the second clause, “at the time he is put under arrest.” That is to say, we are considering only the question whether a seaman arrested on board his ship at Iloilb, P. I., on the 26th day of May can be kept in close confinement and carried to Cavite, P. I., and not be made acquainted with the charges preferred against him until the 1st of July following.

For the purpose of this inquiry we assume that the recital before quoted in the proceedings of the court-martial is sufficient evidence of the fact that the charge and specifications were furnished to the prisoner on the 1st of Julju But it is not to be understood that the court so decides. That question is one which is by no means free from doubt. The recital is not a part of the findings of the court, of its judgment, of anything which the court did, but a part of the proceedings written up by the prosecuting officer; and the recital is not a statement of a fact, but merely an admission of a- fact on the part of the accused. He did not write the admission; ho did not dictate it; he did not sign it; he may not have understood it. All that we have is the judge-advocate’s understanding of what the prisoner admitted.

For a clearer comprehension of the points involved in this case we must examine the law regulating arrest and confinement.

In the Návy, as in the Army, a man may be arrested by the captain of his ship or the colonel of his regiment and placed m confinement for trivial offences without an assigned reason being given. But here the law comes in and provides that this confinement shall not exceed ten da}^ (Rev. Stat., p. 281, aft. 24). A longer confinement for a greater offence can only be imposed upon him by the sentence of a court-martial. The words of the statute are:

“Confinement, with or without irons, single or double, not exceeding ten days, unless further confinement be necessary, in the case of a prisoner to be tried by court-martial.”

At the end of ten days one of two things manifestly should happen: Either the prisoner should be released or it should appear in some way that he is held to be tried by court-martial. This power to hold a man is unlimited; he may be confined with or without irons, single or double, until he is brought to trial.

But this power of indefinite confinement does not necessarily deprive a man of any legal right or personal safeguard. The law intends that when “confinement be necessary” he may be confined; that he may be rigorously confined “with or without irons, single or double;” that he may be thus kept in confinement until brought to trial; but it does not intend that he shall not have a fair trial or be deprived of a^1; of the means of establishing his innocence.

In the early days of the Navy the original rules and regulations for its government contemplated that some one other than the commanding officer would prefer charges and that they should be “exhibited in writing to the proper officer” and that “ the person demanding the court shall take care that the person accused be furnished with a true copjr of the charges, with the specifications, at the time he is put under arrest.” The statute then inhibits the court-martial from trying the accused upon any other charges, making, however, provision to prevent a multiplicity of trials for newly discovered offenses, but positively declaring that in such cases of subsequent charges “reasonable time shall be given to the person to be tried to make his defenses against such new charge." (Act %3d April, 1800, 22 Stat. L., pp. 50, 51, art. 38.)

In like manner article 43 of the Revised Statutes (p. 283) guards against a multiplicity o~f trials. It is in these words:

“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 ivas 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.”

To the court it seems evident that the statute means what it says. The provision 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” can have but one meaning, and that meaning can-not be expressed in plainer or simpler or more positive language than that used in the statute. That n'o other charges “shall be urged against him at the trial” is decisive of the intent. The person accused can not waive the nonfurnishing of the charges because he can not be called upon to plead to them. To hold the accused in confinement that he- may be brought to trial upon charges; to bring him into court for trial upon them; to read them to him and call upon him to plead to them is to “urge” them, and to urge them is the only wa3r in which charges against an accused person can be urged.

It has been suggested that the statute is directory and not mandatory. But the initial sentence of the Articles (p. 271) declares that “the Navy of the United States shall be GOVERNED by the following articles.” There is nothing in the for y-third article which indicates that it was framed for the guidance of courts-martial or which implies that thejT may disregard its injunctions. “The.person accused” is the subject of the article and every line is manifestly for his protection.

It has been suggested that time to prepare for trial is all that the statute accords to the person accused and that if sufficient time be granted to prepare his defense the terms of the statute will be satisfied; but to this there are two answers:

First. The statute contemplates the giving of reasonable time, and invests courts-martial with that power, and enjoins upon them that duty, but limits the authority to grant reasonable time to the “new” charges. There are two rules prescribed by the statute: As to the original charges upon which he was arrested, a true cop}r is to be furnished to the accused at the time he is put under arrest; as to the new charges not furnished to the accused at the time he was put under arrest, “ reasonable time shall be given to the accused to make his defense.” Expressio unites, exclusio alterius.

Second. A court-martial is not invested with power or authority to grant time to persons accused. It is convened to try such persons as maj7 be brought before it, and “the court is enjoined to sit from day to day, Sundays excepted, until sentence is given, unless temporarily adjourned by the authority which convened it” (art. 45). 411 that a court-martial

could do would be to report the facts to the officer who convened the court, and it would be a matter of discretion with him to allow or not allow an adjournment. Assuredly the law never intended that the personal rights and safeguards of anjT person accused of crime, of crime which might involve property, or liberty, or life itself, should be dependent upon the discretion of a commanding officer. ■

This forty-third article was first enacted in its present form during the civil war. The history of its enactment throws some light upon the intent of Congress. It is thus sketched in the preceding opinion on the demurrer in this case:

“ On the 17th July, 1862, Congress passed two statutes (12 Stat. L., p. 594; ib., pp. 600-604, art. 15), the one relating to the arrest and imprisonment of officers in the Army, the other to the arrest and imprisonment of persons in the Navy.
“These statutes were passed in the midst of a great war, and concerning the circumstances which surrounded the former statute and led to its enactment Mr. Blaine has said:
“ ‘In answer to the call upon the President for information, Mr. Lincoln sent a message to the Senate on the 1st of May, saying, “ General Stone was arrested and imprisoned under my general authority, and upon evidence which, whether he be guilty or innocent, required, as appears to me, such proceedings to be had against him for the public safetjr. ” The President deemed it “ incompatible with the public interest, and perhaps unjust to General Stone, to make a particular statement of the evidence.” After saying that General Stone had not been tried because the officers to constitute a court-martial could not be withdrawn from duty without serious injury to the service, the President gave this public assurance: “ He will be allowed a trial without unnecessary delay. The charges and specifications will be furnished him in due season, and every facility for his defense will be afforded him by the War Department.” This message on its face bears evidence that it was prepared at the War Department, and that Mr. Lincoln acted upon assurances furnished by Mr. Stanton. The arrest was made upon his “general” authority, andclearty not from any specific information he possessed. But the effect of the message was to preclude any further attempt at intervention by Congress. Indeed, the assurance that General Stone should be tried “ without unnecessary delay ” was all that could be asked. But the promise made to the ear was broken to the hope, and General Stone was left to languish without a word of intelligence as to his alleged offense, and without the slightest opportunity to meet the accusers who, in the dark, had convicted him without trial, subjected him to cruel punishment, and exposed him to the judgment of the world as a degraded criminal.
“ ‘Release from imprisonment came at last by the action of Congress, coercing the Executive Department to the trial or discharge of General Stone. In the act of July 17, 1862, “defining the pay and emolument of certain officers,” a section was inserted declaring that “whenever an officer shall be put under arrest, except at remote military posts, it shall be the duty of the officer by whose order he is arrested to see that a copy of the charges shall be served upon him within eight days thereafter, and that he shall be brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty daj^s after the expiration of said ten days, or the arrest shall cease.”’ (Twenty Years of Congress, vol. 1, p. 390.)
“The statute relating to the Navy is without qualification, broaJer and more imperative in terms. It has since found its way into the Revised Statutes with no substantial change of phraseology.”

It is needless to advert to the manjr decisions of the Supreme Court holding that statutory regulations governing the proceedings of a courhmartial must be complied with. They are summed up in a sentence or two in the case of Brown v. Keene (8 Pet., 112):

“The trial, finding, and sentence are the solemn acts of a court organized and conducted under the authority of and according to the prescribed foi’ms of law. It sits to pass upon the most sacred questions of human rights that are ever placed on trial in a court of justice; rights which, in the very nature of things, can neither be exposed to danger nor subjected to the uncontrolled will of any man, but which must be adjudged according to law.”

And are reiterated in Runkle v. United States (122 U. S., 543).

Finally, it has been said that the statement of the accused-set forth in the proceedings of the court-martial is substantially a confession, and that no wrong can be done to a man who is thus self-convicted.

But concerning this so-called “confession” thqre are two 'things to be said: First, it did not constitute the only evidence before the court-martial; and, second, the statement shows that a man who had worked hard for four hours “in the bilges under hot boilers, and also had had his regular watch from. 8 p. m. to midnight,” and being ordered by an assistant engineer to go on duty from noon to tl p. m., thought that injustice was done to him and “became excited and said more than he intended. ” It is impossible for this court to believe that upon that statement alone, due regard being given to every part of it, a court-martial would have sentenced a man “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 to him during such confinement, except the sum of $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, total loss of pay amounting to $376.”

The judgment of the court is that the claimant recover all of the pay withheld from him under and by authority of the sentence of the court-martial, amounting to $376.

Peelle, J.,

dissenting:

I dissent from the foregoing opinion for the reasons set forth in my dissenting opinion when the case was submitted upon demurrer (36 C. Cls. R., 325).  