
    JOHN SMITH v. THE UNITED STATES.
    [No. 21636.
    Decided April 22, 1901.]
    
      On the defendcmti Demurrer.
    
    The demurrer concedes that on the 26th of May an enlisted man in the Navy was arrested under an order directing that “he he kept in single irons for safe-keeping to await trial by general court-martial;” that it does not appear on the record of the court-martial, or otherwise, that he was ever furnished with a copy of the charges; that it appears, by the log — not by the record — that on the 1st of July the judge-advocate read the specifications to the prisoner; that on the 5th July he was tried and sentenced to a forfeiture of pay to the amount of §200.
    I.The Act 17th July, 1862 (Rev. Stat., p. 283; sec. 1624, article 43), provides that “ the person accused shall he furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; and no other charges them those so furnished shall be urged against him at the trial, ’ ’ except in two specified cases not now involved. To hold that an officer or seaman in the Navy can be arrested and kept in close confinement a long time without charges being preferred against him, and be first informed of the alleged offense when the charges are read during the proceedings of the court-martial, would be to hold that the above statute means nothing. The history of the act shows that its provisions were intended to be jurisdictional, and the decisions of the Supreme Court, that jurisdictional requisites must appear on the record.
    II.Sailors, being beyond the reach of the writ of habeas corpus and generally without legal advice, have always been subjects of protective legislation and jurisprudence.
    III. In civil life a man can not be deprived of life, liberty, or property except by due process of law. In the Army and Navy the proceedings are different, the safe-guards are less assured, but the principle is the same.
    IV, An entry on the log is not notice to a prisoner; he has not access-to the log.
    V.Where the petition sets forth a good cause of action for the recovery of a seaman’s wages, it is for the defendants, who have the record of a court-martial in their possession, to produce it if it will establish a legal forfeiture of pay.
    
      The M&porters1 statement of the case:
    The vital question involved in this case was whether the sentence of a court-martial was legal, if the. record failed to-show that the accused had been furnished with a copy of the charges and specifications. A number of other questions were presented and argued by the counsel for the claimant, but the decision, as will be seen, is confined to the principal question.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney- General Pradt) for the demurrer.
    The material allegation in the petition in this cause, which is admitted by" our demurrer, is that the claimant was not furnished a copy of the charges upon which he was tried at the time he was put under arrest, as prescribed in article 43 of the Articles for the Government of the Navy.' (Rev. Stat., Chap. X, Title XY.)
    Our contention is that the failure of the Government to comply with the provisions of said article 43 was at most an error of procedure, and therefore not such an error as would have affected the jurisdiction of the court. The claimant was an enlisted fireman in the United States Navy at the time of his arrest and trial, and the offense charged against him was a military offense; therefore the court had jurisdiction of the case and of the person to be tried.
    This court can not take jurisdiction of the claim presented in the petition unless it should appear that the court-martial exceeded its jurisdiction, and this is not shown by any allegation of the petition. It is not alleged that the claimant had no information of the charges and specifications presented against him at any time before his trial. It is not alleged that he made any request to be furnished a copy of the charges and specifications before he went to trial.
    This court will take judicial notice of the rules which are prescribed for the proceedings of general naval courts-martial.
    Under the “General United States Naval Regulations for Courts-Martial” (Regulations for the Government of the Navy, Chaps. XLI-XLII) it appears by section 1856 that it is the duty of the judge-advocate, “ upon, being notified that a court is to convene, and having been furnished with such papers and instructions as shall be considered necessary for his guidance,” to ascertain “that the accused has received a true copy of the charges and specifications preferred against him. ” The presumption is that the judge-advocate performed this duty.
    
      Section 1857 provides that the same officer “shall critically examine the charges and specifications in order that, prior to the arraignment, he may advise the court of any technical inaccuracies that he may discover,” and section 1858 provides that “he shall call upon the accused for a list of the witnesses he wishes summoned for his defense, and shall at the same time furnish him a list of the witnesses who are to appear against him.”
    By section 1872 it appears that “when a general court-martial assembles the person to be tried shall be introduced and the order convening the court shall be read by the judge-advocate in his presence, and in each and every case tried a copy of the order convening the court shall be read by the judge-advocate, and the original charges and specifications shall then be read by the judge-advocate and be appended to the record.”
    Section 1873 makes it the duty of the judge-advocate to ask the accused if he objects to any member of the court, and section 1877 provides that if either of the parties should desire a postponement of the trial a motion shall be made- before the arraignment if possible. This section gives the prisoner an opportunity to obtain a postponement of the trial for any reasonable cause — for instance, that he had not been furnished a copy of the charges and specifications before he heard them read by the judge-advocate. It is not alleged in the petition that the claimant in this case made an application for a postponement of the trial for this or any other reason.
    Section 1878 secures to the accused the right of counsel.
    Section 1879 requires the judge-advocate to place upon the table several copies of the charges and specifications for the convenience of the court.
    Section 1880 shows how the charges and specifications maj" be amended even at that stage of the proceedings, and how objections can then be made to the charges and specifications. All this occurs before the arraignment of the accused.
    Section 1881 provides that when the court has been regularly organized, the judge-advocate, after reading aloud in open coui’t the charges and specifications against the accused, shall address him by name and designation and ask him if he is guilty or not guilty of the charges and specifications just read; and further, that “the questions constituting the arraignment, and the answers to them, if any be given, must be distinctly recorded.”
    It is unnecessary to go into all the details of the proceedings of general naval courts-martial. It is sufficient to say here that the rules prescribed therefor give ample protection to the prisoner at every stage of the proceedings; in fact, much greater protection than is given to prisoners in grave criminal cases in the State and Federal courts.
    Our position is that the error complained of, namely, “that the prisoner was not furnished a copy of the charges and specifications at the time he was placed under arrest for the offense of which he was convicted” is merely a slight error of procedure which could have been taken advantage of at the time he appeared before the court for trial or prior to that time, and therefore that the alleged failure to furnish him a copy of the charges at the time of arrest can in no sense be regarded as affecting the jurisdiction of the court.
    The error complained of was distinctly an error of procedure, and even though the error had not been waived by the prisoner, the court-martial would have had full jurisdiction ■to try him. The case is similar to the much more serious one provided for in section 1033 of the Revised Statutes in respect to “criminal procedure” in the United States courts. That section provides that when anyone is indicted of a capital offense a “ copy of- the indictment and a list of the jurors and witnesses shall be delivered to him at least two entire days before the trial.”
    We have for the first time in our professional experience heard learned counsel with the attorney for claimant seriously contend that in such a criminal case the court would have no jurisdiction to try the prisoner if a copy of the indictment had not been furnished him at the time prescribed in that section, “at least two entire days before trial.” There can be no answering such an argument except to say that any appellate court of competent jurisdiction would hold that the error was simply one of procedure, and that it would correct the error if it had not been waived and justice required such action. But this court has no jurisdiction to correct any errors of- procedure which may occur in court-martial cases; and therefore our demurrer should be sustained.
    
      
      Mr. George F. Ormsby opposed.
    The general principle on which this petition is based is stated by the Supreme Court thus:
    1. Expa/rte Bam. (121 U. S., 13): “It is of no avail under
    such circumstances to say that the court still has jurisdiction of the person and of the crime; for though it has possession of the person, and would have jurisdiction of the crime if it were properly presented * * * the jurisdiction of the offense is gone. ”
    2. hire Bonner (151 U. S., 256): “In all cases where liberty is affected by its proceedings, the court must keep strictly within the limits of the law authorizing it to take jurisdiction and to try the case and render judgment * * * (p. 259). The law of our country takes care, or should take care, that not the weight of a judge’s finger shall fall upon anyone except as specifically authorized.”
    3. Hardens. Gordon (2 Mason, 550): “Beyond this is the great public policy of preserving this important class of citizens for the maritime defense of the nation. Every act of legislation which secures their' comforts, binds them more strongly to the country, encourages seamen to engage in perilous voyages with more promptitude and at lower wages, urges seamen to encounter hazards from -which they might otherwise be disposed to withdraw. ”
    Suppose Admiral Dewey was, “in the same manner” as the humble John Smith, seized by the Secretary of the Navy and put in jail in the District of Columbia. He is not told, “You are hereby placed in arrest,” nor given any account of the charge against him. After lingering, like John Smith, from May 26 to June 26, in single or double irons, he applies for a writ of habeas corpus on the ground that he is not confined on any charge. The Navy Department answers that article 24 allows the confining of subordinates, such as Dewey and Farragut, for such period as is necessary to bring them to trial; that article 43 means that no charges shall be furnished in the meanwhile until the Secretary has determined what they should be; and that article 43 is the only requirement by Congress as to disclosures of charges. Admiral Dewey contends that the probable charge against him is “wanting to be President,” and that such is not among the acts made punishable by naval statute. He says that if the charge against him were shown to be in law no charge, he would, of course, be released, and be asks how can he be confined when there is admittedly' no charge? Would the Supreme Court permit this “person accused” to be imprisoned on indefinitely without an “exhibition of charges?” Has Congress enacted such an absurdity? If so, why did they do it? It certainly was a most successful device for ‘depriving the innocent of means of preserving his defense.
    In 1165 the British Parliament, mindful of magna charta, declarations of rights, etc., passed article 19 of the mutiny act, to‘preserve discipline, (q. v.)
    
    The Bastile of France, with its system of imprisonment on “lettres cle cachet,” was overthrown July 11, 1789. Ten years later, April 23, 1800, when the power that had risen on the ruins of the Bastile was at its shining height, our American Congress passed what it supposed would demolish anything like a Bastile in the Navy, the thirty-eighth of the articles for the government of the Navy. The identity of pur-purpose and the near identity of language between this and the British statute are too obvious to need comment. The British “account in writing of the crime charged” is the American “copy of the charges and specifications;” — the copy of that “report” of the law “charged” to be violated and the “particulars” held to constitute that violation, described in the regulations of to-day^ (1896) in articles 1035, 1037, 1039, and which are now given only to “officers,” article 1039. In the Massachusetts “Declaration of rights” of 1780 it is laid down that “No person shall be held to answer for anjr crime or offense until the same is fully, plainly, substantially, and formally described to him.” This principle, reverberating from State legislatures here and there, found its echo twenty-years later in the naval article 38 of 1800.
    In 1800 our little Navy consisted of ships at sea. When a sailor on a vessel was placed under arrest for being irritatingly disrespectful, say, the captain, having his cabin, writing materials, and clerk or writer always at hand, could easily cause to be written out the charges and specifications on which he intended to apply for a court-martial, and furnish to the accused what he afterwards exhibited to the squadron chief. The wrong addition of a profane expletive or scurrilous epithet in the specifications, if hidden, might make a serious difference in the sentence after other witnesses had forgotten. Articles 1036 and 1037 show that the brief report of the charge and specification is expected to be made out at once, while recollection of the facts is fresh. What possible excuse can there be for not furnishing- the accused a copy of such ?
    The vast majority of offenses in a seagoing navy occur on shipboard, where pen, ink, and paper are always at hand to furnish the accused with specific written information as to the cause of his arrest and future trial. Congress had these in mind in enacting a statute that comprised all arrests. There was obviously no hardship'in such a requirement, which but conformed to the usual rule. That such must be its meaning-is obvious when we reflect. Had it been proposed to Congress to enact a statute expressly saying that information of the charges might be withheld from the prisoner until the superior official, thousands of miles away, had time and saw fit to order a court, is there any doubt that the proposal would be rejected? * * * *
    Let the court put itself in the position of the Senate hiaval Affairs Committee of 1862, when it modified article 38 of 1800 into the present article 43. With the remarks of Senator McDougal (q. v.) ringing in its ears, that committee considered what it could do to prevent an arrest in the Navy like Secretary Stanton’s.
    If the now enactment was to be an instrument of tyranny, why was it that no Democrat, no critic of the Administration, no member of the Committee on Naval Affairs who discussed it, protested against its wickedness in public ? Yet some question must have been asked in the House and Senate Committee rooms by some captious critic as to the reason of the change, and it must have been answered. If the answer was that Congress intended thereby to conceal from prisoners charges which had previously been furnished, is it possible that not a single objector in House or Senate would have been found? Not a single hostile speech or remark appears in the Congressional Globe of that day. Or if the temper of the committee and Congress was in favor of arrests on lettres de cachet and Bastilles, why did they then enact the very restrictive article, now 24, which then first appeared on the statute book, to put an end to arbitrary arrests so far as length of time and cause were concerned? Article 43 was evidently assumed already to prevent arrests without cause shown.
    Article 43 is an affirmative form of the universally accepted negative proposition that no one can bo punished twice for the same offense. The modern Navy Department has ruled that for a ship’s captain to place one of his subordinates under suspension or arrest for six days without furnishing him with that notice of trial which article 43 requires is punishment, and that it can not try him on the charges withheld during that time. (G. C. M. O. 18 of 1897.) In this construction its two exceptions protect the sailor with really beautiful ingenuity and harmony with established principles and justice. For example, in the case (21644) argued before three members of this court last June, Knut Lagerval was tried on three allied, merging, and cloudy charges — “absence without leave,” “absence after his leave had expired,” and “conduct to the prejudice of good order and discipline.” Were it not for article 43, Lagerval’s captain might say, after a ten-day arrest subsequent to the misconduct so described (an arrest without service of charges or notice of trial), “I punished him for only ‘absence without leave.’ That was my secret intention. . tío I can have him tried on the other charges, notwithstanding I was aware of them all, and concealed them from him in such. a way as to take him unawares. ” According to article 43 he can not say that. If he “had intelligence” or knew of the other charges ; if they were supported by sufficient evidence or “material witnesses” for the captain to credit them, they must be considered to have been expiated by the ten-day punishment if they were not held in suspense by prompt notice of trial and furnishing of such charges as exactly measured the coming jeopardy.
    Article 24 was a later addition to the acts of Congress than article 43 — sixty-two years later. It was as though Congress said, “Since we have only required you to furnish charges indefinitely at or about the time of the arrest, and since you may abuse the privilege by pretenses that ‘at the timé,’ under the circumstances of the case, meant several days off, we will, as in the Army, fix a precise limit when the arrest shall cease and no trial be had, whatever your excuse. We do not, however, by this mean to excuse you from furnishing charges ‘at the time of the arrest’so nearly as the possibility of writing them out intelligently might permit of.” Section 123 of the Navy Regulations of 1870 concerns itself only with the arrest of an officer, who alone has a sword to deliver up. The deferred arrest (and therefore presumably' the deferred charges) applied only to officers, whose commission was security against their running awaj', and who were left at liberty, on parole, while the enlisted men, who alone were menaced with the penitentiary, and as to whom penitentiary was certain, wore alone confined. Hence under the ruling of paragraph 1203, N. R., I860, they had to be furnished with charges before.
    Article 1037, Nary Regulations, describes “charges and specifications,” which, as appears from article 1039, are required to be “furnished at the time” of the making of the accusation (and the arrest upon it) to officers. That this does describe the charges and specifications against the person accused is ruled by no less an authority than the President himself. The “Revenue-Cutter Service Regulations for 1894,” under the identical title of “Administration and discipline,” contains almost exact quotations of the naval regulations of 1893 and 189(5 under that head. Paragraph 687 of the Treasury Regulations reads, instead of the phraseology adopted in article 1037 of the Navy Regulations: “The commanding officer shall transmit to the Secretary a report embracing the charges and specifications relating to the case.” The Treasury paragraph 689 is the counterpart of the Navy article 1039, except that the Treasury candidly admits that it is “charges” they are talking about, and that they are furnished to “officers accused at the time.” This Treasury interpretation of the naval regulations was approved by the President himself (see p. 3, Revenue-Cutter Regulations). Thus the Commander in Chief of the Navjr rules that charges and specifications exist at the time of the imprisonment’s beginning.
    Section 106, R. A. J., directs that where not only an “ officer” but any other “person in the Navy” is accuséd of misconduct grave enough, perhaps, to warrant demanding of a court-martial, the complainant shall furnish “ a written statement of the case.” What is this but the charges and specifications mentioned in article 38 of 1800? It coincides with the time of making them and furnishing them. The statement “contains” them, like the letter or report of Captain Porter in the Kennon court-martial in 1824 or Captain Levy’s charges against Hooe in 1839. Section 107 requires the captain to call upon the person accused for a “counter statement ” to the written statement of the charges and specifications. How can the accused give this without receiving a copy of such charges? Thus again those R. A. J. impty and require that a true cop}1- of the primary arrangement of the charges and specifications shall be furnished the accused approximately at the time of his arrest. The Navy Regulations of 1896, bjr copying these sections 106 and 107 intact in article 1035, do the same, going still further, if that were necessary, by pointing out in article 1035 that these are “charges;” and the President has expressly ruled that article 1037 describes “specifications.” Thus not only the statutes but the regulations require that furnishing which the claimant demands.
    For, startling and paradoxical as it may have seemed, what the claimant asks is that the court will not disagree with, but affirm, the President’s rulings. So far as the President has given his own personal knowledge to the matter, he has given judgment for claimant. Nowhere can a regulation be found, signed by him, that these abuses shall exist which we have shown. In Lieutenant Hooe’s case (in 1839) the President ruled that charges and specifications came into being upon first accusing the offender, and that such were the sort that • •should be given on arrest. In 1894, in the Revenue-Cutter Service Regulations, page 135, paragraphs 687, 689, he rules' that article 1037, Navy Regulations, describes charges and specifications. In Article 1039, Navy Regulations, he directs that such shall be given to officers not merely when they are put in arrest, but whenever they are accused, so that it can not be said to be a regulation that enlisted men shall not have them when in arrest. And in article 1778 of 1896 and in article 1839 of 1900 he actually commands that when a person not an officer is put in confinement he shall receive charges, etc. In General Court-Martial Order 18 of 1897 he declares that article 43 is nothing more than a statutory prohibition against two punishments for the same offense; while in article 1819, 1782 Navy Regulations, he rules that charges may be amended at any time, and that therefore there is no excuse for reserving the furnishing until the Admiral of the fleet drafts the ultimate preparation of them. It majr be very obvious that some official is hiding the true construction of the statute as far as he dares, but only as far as he dares. There is no positive regulation that seamen shall not have what article 43 requires them to have when put under arrest. It certainly seems incredible that the President of the United States, elected by the American people, should, were he sitting on this bench, vote that a most important class of the citizens of the United States should be dissuaded from helping to.protect this country in its time of need by a threat, uttered from the bench, of liability to arrest and trial by superiors publicly recorded as approvingly retaining in the Navy malignant and “horribly cruel” commanders, and at the same time of liability to loss of all possible chance of acquittal by them, by being debarred from both help of counsel and notice of' accusations. (G. O. 148 of 1869; G. C. M. O. 29 of 1890.)
    Corroborative proof that the naval articles and the seventy-first article of war are identical in their requirements as to the time of furnishing charges is found in that confession or ruling of the present Navy Department which constitutes article 1036, Navy Regulations. This reads: * * *
    Now the time limit for an arrest for punishment is ten days. So that this article 1036 really reads, the captain “shall take ” the ‘ ‘ action ” described therein within ten days. Within ten days he shall, so it commands, decide whether the arrest is (and has been) for trial or punishment. If for trial, charges are due. Thus there are not two successive arrests, one nondescript, followed by one for trial, but the character of any arrest is left undetermined for a short interval, within ten days, and when the decision is made the then determined title of the arrest relates back to the beginning, after the manner indicated in the seventy-first article of war for the Army. No judge-advocate of the Army has ever pretended that that seventy-first article means that charges are to be withheld from an army man until eight daj^s after some general has determined to bring him to trial and has rearrested him for' that purpose — to make the .time of furnishing charges suit the eight days. (G. C. M. O. 86, Dept, of Va., Aug. 17, 1865; Wmthrop Mil. Law (1896), p. 167.)
    
      Every fraction of article 43 is admitted even by the present regulations to have the construction claimed by petitioner. That “any person in the Navy” may be “put under arrest,” and before trial is ordered (i. e., before the events mentioned in article 1778) is admitted or ruled in articles 1056 and 1060, which last states that if the Admiral decides not to try “any person” who has been under arrest awaiting trial, and directs his release and entire discharge from prosecution, his previous arrest shall be regarded as punishment and therefore a full expiation of the offense and an ousting of further jurisdiction over it. That there was no rearrest in claimant’s case, even if the law required so idle a ceremony, so empty of use, is shown from article 1058, which provides that “the date of every arrest and restoration to duty are entered upon the log. ” (See extracts in claimant’s case, art. 414, and G. C. M. 0.18 of 1897.) That the charges on which claimant was tried existed on his original arrest is admitted in articles 1034,1035, and on p. 496, Navy Regulations, (“Reports * * * containing charges”). That specifications were “with ” them is admitted in articles 1037, 1748, 1755. That copies of such could have been furnished is admitted in article 1039. That determination as to whether the arrest of an offender is for trial or punishment must be made in ten days at all events, is declared in article 1036; that it must be made if possible within twenty-four hours is declared in article 1052. That trial is prohibited on charges other than those furnished as above described, altered charges in which the “facts” first recited are “changed” or which “weaken”the “legal responsibilities” of the “ person demanding the court,” is maintained in articles 1785 and 1819. That furnishing of charges is a necessity and right is admitted in article 1039; that the necessity is much stronger in the case of enlisted men than officers is pointed out in articles 226 and 1045, which show the very large liberty and opportunity given to officers to prepare for trial, while seamen are not “confined in any other spaces” (art. 1055) than “cells 6 feet long and feet broad” (art. 1054). Moreover, while officers may be intelligently quick to. understand the charges against them, illiterate sailors are slow to grasp the exact situation, and the greater, their ignorance the more they need a written memorandum to dwell upon, to think over, and to have their friends and fellows look at and advise them about, for they may be able to get no other counsel — are not entitled to any as a matter of right (art. 1817). That “original charges and specifications” against them, “signed” by the reporting officer and “approved” by the captain of the ship or the next higher superior, are in existence at the time they are first accused and arrested, should be furnished, and are material to the legality of the trial, appears by the rule which requires them to be “appended to the record.” (Art. 1811, N. E.; sec. 185, E. A.. J.)
    The naval article 8, section 1624, Eevised Statutes, subjects to judgment by naval court “refusing to bring to punishment all offenders.” Suppose a charge is urged,“ Eefusing to bring to punishment all innocent persons.” Has a court-martial jurisdiction to adjudge punishment upon such charge? If not, why? Not because it is expressly prohibited by any article, for it is not. How much less authorized is a court-martial to try a charge described by statute as expressljT prohibited from being “urged against” the accused. Section 1624, Eevised Statutes, allows a court to try a violation of article 4 only when it is charged as required b}^ article 43.
    Not only was the punishment in this case forbidden by law (art. 43)' — not onty did the court-martial have no jurisdiction over the charges urged, but it had no jurisdiction over the person. A court-martial in one sense has, or rather may have, jurisdiction over all persons in the Navy, just as the supreme court of the District of Columbia has, or may have, jurisdiction over all persons in private life. But if counsel for the defendant should walk from here into that supreme court, and the judge, on seeing him, should at once sentence him to be hung, would he not cry out against the lack of jurisdiction which he now denies to the sailor? It Is not every civil “pers'on” who walks or is dragged into the physical confines of a United States court room that the latter has jurisdiction over. Just as little is every naval “person” who walks-or is dragged before a United States naval court-martial subject to the latter’s edicts. In both cases the person must be reached over the steps over which judicial process must travel. In the civil court the person must be brought before it on charges found by a grand jury; in the naval court the person must be brought before it on charges furnished when, at the most, ten days of arrest have to that extent impaired the prisoner’s chances of acquittal. 121 U. S., 13; 30 Mich., 138; 1 Blatchf. (U. S.), 487.
    The argument may be summarized as follows:
    1. A seaman imprisoned by a competent superior is entitled to claim that he must be regarded as put under arrest for trial at the time his arrest continues beyond ten days. This, at least, he has a right to claim, whateyer may be the rights arising on events within ten days — which are not here discussed.
    2. Whether or not a copy of the accusations is due him approximately at the time of the original beginning of the arrest, or at the time his superior has admitted that he is under arrest for trial, it is at least due him when that arrest has continued longer than ten days, thus giving two days more for furnishing charges than the corresponding seventy-first article of war.
    3. He is entitled to a trial on these only (their ideas, not their words merely), unless subsequent to them he committed a “new” offense or is discovered, by evidence not before at hand, to have committed an offense (concealed by him) not theretofore known.
    4. Officers who order naval courts were intended by the Congress of 1862 to be brought within the restrictions of article 38, chapter 33, of the act of April 23, 1800, but the rights of American naval seamen were not intended to be lessened from what they weré before July 17, 1862.
    o. It is the duty of the superior officers who constitute the court-martial, not their ignorant subordinate, to see that the statute is complied with, and the record must show that they have done so. The seaman is not presumed to be an able lawyer — rather the reverse; and neither the acts of Congress nor the regulations nor even naval practice secure to him professional aid when tried on the high seas or under the usual nautical conditions. Not a single court-martial ruling in War and Navjr Departments make it a condition precedent to the setting aside of an illegal sentence that the accused soldier or sailor objected thereto. (.Kilpatrick v. Byrne, 25 Miss., 571: “Whei’e a statute makes no exceptions the court can make none.”)
    6. Article 43 is a mandate that no one shall be twice punished for the same offense and a definition of what shall be considered an arrest for punishment. (G. C. M. O. 18 of 1897.) An arrest for an appreciable time secretly intended as an arrest for trial, but without notification to the offender of the charge pending, is, in effect, an arrest for punishment, and must be regarded as an expiation of the offenses on which it was predicated and an extinction of jurisdiction over the charges pending. To use the language of . Great Britain’s War Manual, “A court-martial has no jurisdiction to try a person for any offense for which he has been already punished” (p. 45). Such an arrest is punishment, even though it has an excrescence of illegal excess, or has in some particulars a lack o'f due warrant, or though the superior deny that it was punishment, that he ever admitted it or intended it to be so. It is the experience of the sufferer, when imposed by competent authorit}7, that constitutes an expiation of the offense, not what is said about it. (G., C. M. 0. 18 of 1897; G. O. 152 of 1870.)
   Nott, Ch. J.,

delivered the opinion of the court.

This case presents the question whether an enlisted fireman in the Navy has bee.n lawfully deprived of his lawful pay by the sentence of a court-martial. Questions of military law, or the proceedings of military courts, rarely come before civil courts for review or as subjects of adjudication, but there are some general principles applicable to all cases which it is always well, when a court is passing upon the action of a court-martial, to keep prominently in view.

In Dinsman v. Wilkes (12 Howard R., 390, 403) the Supreme Court said:

“ It must bo borne in mind that the nation would be equally dishonored if it permitted the humblest individual in its service to be oppressed and injured by his commanding officer from malice or ill-will or the wantonness of power.”

And the Supreme Court said, in Dynes v. Hoover (20 Howard R., 65, 81):

“Persons, then, belonging to the Army and the Navy are not subject to illegal or irresponsible courts-martial, when the law for convening them and directing their proceedings of organization and for trial have been disregarded. In such cases everything which may be done is void — not voidable, but void — and civil courts have never failed, upon a proper suit, to give a party redress who has been injured by a void process or void judgment. In England it has been done by the civil courts ever since the passage of the 1 Mutiny Act of William and Mary, ch. 5, 3d April, 1689. And it must have been with a direct reference to what the law was in England that this court said, in Wise v. Withers (3 Cr., 337), that in such a case ‘the court and the officers are all trespassers.’ When we speak of proceedings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistaken rulings in respect to evidence or law, but of a disregard of the esseoitials required Toy the statute under which the court has Toeen convened to Pry cmd to punish aoi offender for an imputed violation of the laxo.'1'1

The Supreme Court again said, in Runkle v. United States (122 U. S. R., 513, 555, 558):

“A court-martial organized under the laws of the United States is a court of special and limited jurisdiction. It is called into existence for a special purpose and to perform a particular duty. When the object of its creation-has been accomplished it is dissolved. (3 Greenl. Ev., sec. 470; Brooks v. Adams, 11 Pick., 141, 442; Mills v. Martin, supra; Duffield v. Smith, 3 S. & R., 590, 599.) Such, also, is the effect of the decision of this court in Wise v. Withers (3 Cranch, 331), which, according to the interpretation given it by Chief Justice Marshall in Ex pa/rte Watkins (3 Pet., 193, 207), ranked a court-martial as ‘one of those inferior courts of limited jurisdiction wiiose judgments may be questioned collaterally.’ To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had loeen complied xoith, and that its sentence was comformable to law. (Dynes v. Hoover, 20 How., 65, 80; Mills v. Martin, 19 Johns., 33.) There are no presumptions in its favor so far as these matters are concerned. As to them, the rule announced by Chief Justice Marshall in Brown v. Keene (8 Pet., 112, 115) in respect to averments of jurisdiction in the courts of the United States applies. His language is: ‘ The decisions of this court require that averment of jurisdiction shall be positive — that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred, argumentative!}7, from its averments.’ All this is equally true of the proceedings of courts-martial. Their authority is statutory, and the statute under which they proceed must be ■followed throughout. The facts necessary to show their jurisdiction and that their sentences were conformable to law must be stated positively, and it is not,enough that they be inferred argumentatively.
“Undoubtedly the President, in passing upon the sentence of a court-m.artial and giving to it the approval without which it can not be executed, acts judicially. The whole proceeding from its inception is judicial. The trial, finding, and sentence are the solemn acts of a court organized and conducted under the authority of and according to the prescribed forms 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 nafrare of things, can neither be exposed to da/nger nor subjected to the xmcontrolled-will of a/ny man, but which must be adjudged according to law.”

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 safety.’ 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, and clearly 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 ei’iminal.
“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 dutj'' of the officer by whose orders 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 days 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, broader and more imperative in terms. It has since found its way into the Revised Statutes with no substantial change of phraseology, where it stands 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 was 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.” (Rev. Stat., 1624, art. 43, p. 283.)

This statutory provision, moreover, is a revision in 1862 of .one of the original rules and regulations for the government of the Navy, in these words:

“All charges on which an application for a general court-martial is founded shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; nor shall any other charge or charges than those so exhibited bo urged against the person to be tried before the court unless it appear to the court that intelligence of such charge had not reached the person demanding the court when the person so to be tried was put under arrest,' or that some witness material to the support of such charge, who was at that time absent, can be produced; in which case reasonable time shall be given to the person to be tried to make his defense against such new charge.” (Act 23d April, 1800, 2 Stat. L., pp. 50-51, art. 38.)

The imperative words hero are that “ the person demanding the court shall take care that the person accused be furnished with a true copj'- of the charges,” not that the court-martial shall take care. Moreover, the Attorney-General had decided in 1845, in the case of Captain Yoorhees (4 Opins., pp. 410-414), that this provision of law applied only to cases where charges were preferred by one person against another. The language that the charges ‘1 shall be exhibited in writing to the proper officer,” i. e., the officer who had power to order the court-martial, and that “ the person demanding the court shall take care that the person accused be furnished with a true copy of the charges,” fully sustains the construction given to it by the Attorney-General. In a word, while General Stone’s arrest was receiving legislative attention and inquiry, Congress determined to change and reenact the navy article of 1800, and that change at that time must have been founded upon a legislative purpose.

In the present case it does not appear either bjr the record or dehors the record that the claimant was ever furnished with a copy of the charges. The nearest approach to furnishing him with a copy of the charges was, as appears by the logbook, that on the 1st of July the judge-advocate of the coming court-martial read specifications to J. Smith. The prisoner had then been in close confinement since the 26th of May, under an order directing- that “he be kept in single irons for safe-keeping- to await trial by general court-martial.”

The claimant has set up a good cause of action, that the defendants are indebted to him for wages in the amount of $200,- and the defendants by their demurrer have confessed that much. The.petition sets forth what are probably all the material facts of the case, and the defendants have confessed, those facts so far as properly pleaded, likewise by their demurrer. If the record of the court-martial contains anjTthing which will avail the defendants as a defense in this suit it vTas in their possession, and it was for them to bring it in and set it up as a defense to the claimant’s cause of action. They not having done so, we must infer one substantial fact to be conceded, namely, that the claimant, who was arrested on the 26th of May and tried on the 5th of July, was never furnished with a copy of the charges and specifications upon which he was tried.

The question therefore presented to the court by this case is whether the act of 1862 — that is to say, article 43, Revised Statutes — is mandatory or directory; whether the requirement “that the person accused shall be furnished with a true copy of the charges,” and that “no other charges than those so furnished shall be urged against him at the trial,” is jurisdictional.

The Supreme Court, in the case of Dynes v. Hoover, (20 How. R., 65-79), seems impliedly to have answered that question. The plaintiff’s case there rested upon his alleged want of jurisdiction in the court-martial. The Supreme Court held that the court-martial had jurisdiction, and its opinion enumerates the statutory requisites. Among these is placed the thirty-eighth article of 1800, which, says the court, provides, “that charges shall be made in writing, which was done in this case. The court was lawfully constituted, the charge made in writing, and D3rnes appeared and pleaded to the charge.”

When so careful and learned a judge as Mr. Justice Wayne, after stating the law, is careful twice to state the fact that the charge was made in writing and that the prisoner “appeared and pleaded to the charge,” it is plain that the Supreme Court regarded the charges and specifications prescribed by the statute as analogous to an indictment in an ordinary criminal case.

The act of 1800, as has been stated, was neither so broad nor so imperative as the provision in the Revised Statutes. With this decision of the Supreme Court before us, concerning the narrower and weaker statute, it is impossible for this court to hold that the provision in the Revised Statutes realty means nothing at all. For, to say now in the face of that statute that an officer or seaman in the Navy can be arrested by his commanding officer; that he can be kept in close confinement for as long a time as General Stone was, without charges being preferred against him; that he can be carried to the other side of the world from the spot where the alleged offense was committed, and be first informed of it when the charges against him are read during the proceedings of the court-martial, would be to say that Congress had made no provision whatever for preserving the personal rights and liberties of the officers and men in the American Navy.

Mariners, whether in the merchant service or in the Navy, are, in the words of Story (1 Eq. Juris., 332), “a strangely improvident class of men, who seem to have mixed up in their character qualities of very opposite natures, and who seem, from their habits, to require guardianship during the whole course of their lives, having at the same time great generosity, credulity, extravagance, heedlessness, and bravely.” “ Courts of equity,” he adds, “are always supposed to take an indulgent consideration of their interests and to treat them in the same light with which young heirs and'expectants are regarded. Hence it is that contracts of seamen'respecting their wages and prize money are watched with great jealousy, are generally relievable whenever any inequality appears in the bargain, or any undue advantage has been taken.” Lord Stowell, in the leading case of the Juliana (2 Dodson, 504), held that they should be relieved from the consequences of • their own act, that of signing shipping articles whereby their wages might be inequitably forfeited.

And there is good reason for this; for sailors when on shipboard are beyond the reach of a writ of habeas corpus; are without legal advice, and in the preparation of a defense without professional assistance, and on trial they come very near to being practically defenseless; for judge-advocates, like other men, can not well serve two masters. In courts of equity and in courts of admiralty and in legislative halls sailors have always been more or less subjects of protective jurisprudence or protective legislation, and to deprive a seaman of his wages one must proceed according to law and equity. In civil life a man can not be deprived of life, liberty, or property except by due process of law. In the Army and Navy the proceedings are different, the safeguards are less assured, but the principle is the same. Neither Congress nor the courts have ever sanctioned arbitrary arrests or illegal imprisonment or the deprivation of a statutory right. And among the statutory rights which the military or naval prisoner has is that of being promptly informed of the offense whereof he stands accused. An entry on the log is not' notice to the prisoner, for ho has not access to the log. In the present case the seaman has been deprived of his wages — that is to say, of his property — and this court can not sair that it has been done according to the plain and just purpose of the statute, which was intended to guard the personal rights of officers and men in the Navy.

Other important questions were presented to the court by the counsel for the claimant on the argument, but the decision is confined to the question of jurisdiction above considered.

The judgment of the court is that the demurrer of the defendants be overruled, and that the claimant recover the amount conceded to be due, $200.

With leave, nevertheless, to the defendants to plead to the petition within thirty days, in which case the judgment now entered will be vacated and set aside.

Peelle, J.,

dissents:

I dissent from the conclusion of the majority of the court, though I heartily concur in all that is said in the opinion concerning the sacredness of the rights of seamen and of their exemption from illegal or irresponsible courts-martial, but I do not believe that the failure to furnish the claimant with a copy of the charges on which he was tried is jurisdictional. He went to trial without objection, and by doing so waived his right to such copy. (Lisle v. State, 6 Mo., 426; Smith v. State, 8 Ohio, 294; State v. Johnson, Walk. (Miss.), 392; Loper v. State, 3 How. (Miss.), 429.)

In the case of Dynes v. Hoover (20 How., 65, 82), the court, in speaking about the law for convening and directing the proceedings of courts-martial, say: “When we speak of proceedings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistake in rulings in respect to evidence or law, but of a disregard of the essentials required by the statute under which the court has been convened to try and to punish an offender for an imputed violation of law.”

Again, in the case of Ex parte Reed (100 U. S. R., 13), where the court had jurisdiction of the subject-matter and the person of the defendant, the court said: “Having had such jurisdiction, its proceedings can not be collaterally impeached for any more error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conclusivenoss to the judgments of other legal tribunals, including as well the lowest as the highest under like circumstances. The exercise of discretion within authorized limits can not be assigned for error and made the subject of review by an appellate court.” See also In re McVey (23 Fed. Rep., 878); Dynes v. Hoover (supra).

Nor has any court the right to interfere with courts-martial in the performance of their duty. (Wales v. Whitney, 114 U. S. R., 564, 570.) In that same case it was said: “ The civil courts can relieve a person from imprisonment under order of such court only by writ of hcibeas corpus, and then only when it is made apparent that it proceeds without jurisdiction. ” See also Keys v. The United States (109 U. S. R., 336).

If, therefore, the court had jurisdiction of the subject-matter and of the person of the defendant, and complied with the rules prescribed by law for the exercise of its functions, its judgments can not be reviewed by this court.

The Congress is authorized by Article I, section 8,.of the Constitution “ to make rules for the government and regulation of the land and naval forces;” and by the fifth amendment to the Constitution it is provided that “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service or in time of war or public danger.” * * *

By virtue of those provisions the Congress have authorized courts-martial for the purpose of administering justice through military channels, and when the. defendant enlisted in tbe Navy he not only thereby surrendered his right to be tried by the civil courts, but subjected himself to the .jurisdiction of courts-martial.

The record of the proceedings of the court-martial is not made part of the petition, and under the rule that where a pleading is ambiguous or susceptible of different interpretations that construction shall be adopted which is most unfavorable to the party pleading.

There is no averment that the court was illegally convened or any facts disclosed which would warrant such a conclusion, or that the court had not jurisdiction of the subject-matter. There is no averment that the charges against the accused were not in writing properly set forth in the court’s proceedings. On the contrary, the log book of the vessel shows that the judge-advocate read to the accused the specifications as stated in the court’s opinion (ante, p. —). It appears from the aver-ments that the claimant was arrested for “refusing to do duty,” while it is averred that he was tried for “refusing to obey the lawful order of his superior officer,” but the charges are the same in substance, only being stated in different language. The accused could not have been guilty of “refusing to do duty” except in disobedience of his superior officer, who had the right to command him, and hence no question of jurisdiction can be assigned for mere matter of form.

In the opinion of the majority of the court it is said:- ‘ ‘ Other important questions were presented to the court by the counsel for the claimant on the argument, but the decision is confined to the question of jurisdiction above considered.” That is to say, the question of jurisdiction arising from the failure to furnish the accused with a copy of the charges and specifications against him as provided by article 43, Revised Statutes, section 1624.

That article provides in substance that such copy shall be furnished the accused at the time of his arrest; and the logic of the court’s opinion is that if not so furnished the court is without jurisdiction of the person of the accused, although he went to trial without objection.

That same article (43, supra), however, also provides that the accused may be tried on a charge other than the one on which he was arrested if 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 was 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,” thus showing that the only purpose of the statute was to give the accused reasonable time within which to prepare his defense; and such reasonable time is a question within the discretion of the court, and can not be made jurisdictional.

The averments in the petition are somewhat confusing, but from the opinion of the majority of the court the question of jurisdiction arises under article 43 (supra;) for failure to furnish the accused with a copy of the charges against him at the time of his arrest, and upon that theory I have considered the case and reached the conclusion that the demurrer should be sustained and the petition dismissed.  