
    DAVID G. SWAIM, JUDGE-ADVOCATE-GENERAL v. THE UNITED STATES.
    [No. 16859.
    Decided February 27, 1893.]
    
      On the Proofs.
    
    The Judge-Advocate-General of the Army is charged by a'ciiizen with having defrauded him. A court of inquiry is ordered by the President. On the coming in of its report, charges are formulated and preferred against the officer for “ conduct unbecoming an officer and a gentleman,” and a court-martial is appointed by the President. The court acquits the officer of the charge, but finds him guilty of “conduct prejudicial to good order and military discipline.” The President disapproves the sentence as incommensurate with the offense, and the court imposes a second sentence. The President disapproves the second sentence as not authorized by law, and the court imposes a third, which is severer than the first. The officer waits six years accepting the half pay and suspension from duty prescribed by the sentence and then brings an action for the pay withheld, alleging that the sentence was void.
    I. The constitutional power of the President to command the Army and Navy and of Congress “ to malee rules for the government and regulation of the land and naval forces” are distinct; the President can not by military orders evade the legislative regulations; Congress can not by rules and regulations impair the authority of the President as Commander-in-chief.
    ' H. A power to appoint courts-martial devolved by statute on any officer is shared by the President, though he be not named therein. Since the earliest legislation of our Government it has been understood and intended that powers granted to general officers in regard to courts-martial are thereby granted, to the President.
    
      III. In 1884 the seventy-second article of war did not restrictthe appointment of a court-martial to try charges against the Judge-Advocate-General to the Lieutenant-General, under whose command he was.
    IY. Where a military officer of high rank is charged hy a citizen with fraudulent practices, the Secretary of War is justified in bringing the matter to the personal attention of the President and the President in ordering a court of inquiry, although the citizen adjusts his business difficulties with the officer and withdraws the charges. ,
    -Y. A court-martial may find as a fact that no fraud was practiced or attempted by an officer, and properly acquit him of the charge of “ conduct unbecoming an officer and a gentleman,” yet at the same time convict him of the lesser offense of “ conduct prejudicial to good order and military discipline."
    
    YI. The Articles of War do not define either of these' offenses, nor can courts of law. All that a civil “court can do is to look in to the record and see that the discretion given to the court-martial has not been abused; that the sentence does not rest on suppositious or frivolous pretexts; that the case presents facts which may reasonably be held to sustain the charge, and that the sentence is authorized by law.
    VII.The Articles of War designate many crimes and offenses and then gather up the non-enumerated, indefinable offenses of military life under the titles of “ conduct ■unbecoming an officer and a gentleman,” and “ conduet prejudidial to good oi'der and military discipline.”
    
    VIII.It is well settled that the punishment of military offenses and irregularities termed “ conduct prejudicial to good order and military discipline” is within the discretion of a court-martial, but that this discretion, though unrestricted in terms, must be exercised within reasonable limits — that only minor punishments can be inflicted for minor offenses.
    IX.A commanding officer charged with the duty of reviewing the proceedings of a court-martial, may approve or disapprove or mitigate, but cannot order a new sentence of a more severe character.
    X. The Army Eegulation, 1881, No. 923, authorizes the reviewing officer to reconvene a court so that it may correct or modify its conclusions, but does not authorize him to interfere With the proper discretion of the court.
    XI. Where the President disapproved of a sentence which was within the discretion of the court, on the ground that it was incommensurate with the offense, the case comes within the decision of the Supreme Court in ex parte Beed (100 IT. S.B., 13) that the reviewing officer did not thereby require the court to impose a more severe sentence.
    
      XII. Though an officer, suspended from rank and duty for twelve years with a forfeiture of half his pay, waited six years before bringing an action, it can not be held that he acquiesced in the sentence or , that he is concluded from contesting its legality by accepting the half pay without rendering service.
    
      The Reporters’ statement of tie case:
    The following are tlie facts of this case as found by the court:
    I. On the 21st day of February, 1881, the said David G. Swain was appointed and commissioned by the President of the United States Judge-Advocate-General, with the rank of brigadier-general, in the service of the United States, to rank as such from the 18th day of February, 1881.
    II. At the time of their respective dates the following communications, orders, and reports were sent, issued, or made:
    “WAR DEPARTMENT,
    “ Washington City, April 22, 1884.
    
    
      “ Sir: Oh the 16th instant Mr. A. E. Bateman, of this city, a member of tlie Arm of Bateman & Oo., bankers, addressed to me a letter of which a copy is enclosed, in which he alleged that General D. G. Swaim, the Judge-Advocate-General of the Army, had committed a fraud upon said firm, the nature of which he described as follows:
    • “ ‘ Some two years ago the said D. G. Swaim, having deposited the sum of five thousand dollars, received upon his departure for the West a simple duebill at his request, to have in case an accident should befall him. This amount was checked out subsequent to that date by said D. G. Swaim, for which we have a number of vouchers. After having drawn all the money out, and a settlement being made, he negotiated and transferred the duebill for the full amount with certain parties in this city.’
    “Mr.Bateman further alleged that General Swaim ‘assisted to negotiate with this firm army pay vouchers which he knew to be fraudulent and triplicates of out-standing accounts,’ and asked ‘that a court-martial be ordered for the trial of the said D. G. Swaim on charges preferred.’
    “ On the next day, and before any action was taken on the communication of Mr. Bateman, another communication from him was received by me in the following words:
    “ ‘ The suit against our firm on the duebill mentioned in my charges of yesterday against Gen. D. G. Swaim having been withdrawn and the differences between Gen. Swaim and myself satisfactorily settled, I hereby withdraw the charges contained in my letter of April 16th against said Gen’l D. G. Swaim, be claiming they were made under á misapprehension of facts, which I concede.’*
    “ On the nest day these letters were by me referred to General Swaim, by an endorsement upon the one first received, ‘for such remarks as he may desire to submit upon the allegations made in the within communication, and for any application he may desire to make.’
    “ On the same day General Swaim returned the papers with the following endorsement:
    “ ‘ I had a bank account with Bateman & Có., and besides I loaned them five thousand dollars at 6 per cent interest, for which they gave me an instrument reading :
    “‘Due D. G. Swaim or order five thousand dollars. Value received.
    “‘Bateman & Co.
    ‘“WASHING-TON, D. C., July 15, 1882.’
    
    “‘This is a negotiable promissory note according to all the authorities on the subject and was transferred in due course of business and payment demanded, but refused. Bateman & Co. claimed set-offs to the note, the correctness of which I denied. I endeavored to effect a settlement with them or refer the matter to an arbitrator, but without effect. The note was put in suit, but they now agree to refer the whole subject to an arbitrator, and with that view the suit has been withdrawn. The note (or duebill as it is incorrectly termed) is now in the posession of Bright and Humphrey, the indorsees thereof.
    “‘In regard to the fraudulent pay vouchers the facts are as follows: Lieut. Colonel A. P. Morrow, at the time a member of General Sherman’s staff, a comparative stranger to me at the time, came to my office, in company with another officer, and requested me to advance him several months’ pay pn his pay accounts. I told him I did not do that kind of business, but in a ñüendly way referred him to brokers in the city doing such business, and named Bateman & Co., with others. I may have given him a note of introduction to that firm. I did not know for some time afterwards that Bateman & Co. had advanced money to Col. Morrow on his pay accounts. It will be seen that I had no concern or interest in these pay accounts whatever, and all I did was the friendly act of introducing a brother officer to those who were in the habit of doing what I could not do for him. I have no knowledge of any other pay account transaction with Bateman & Co. The only request I have to make is that this statement may receive the same publicity that the within false accusations received.’
    “ Mr. Bateman thought it proper to give to the press a copy of his first letter, on the day of its date, and tbe grave charges made by him against the Judge-Advocate-General were thus given a wide publicity. His object was apparently to enforce a pecuniary adjustment by'means as offensive as possible; and bis letter of tbe next day shows that, notwithstanding the ■bitterness of his attack, a satisfactory settlement was quickly made, one element of which was his formal withdrawal of his charges with a statement which seems carefully framed to avoid charging himself with having recklessly made false and libellous charges in his previous letter.
    “ Mr. Bateman’s business adventures are not entitled, under any circumstances, to the protection of the War Department; but the integrity and uprightness of the officer of the Army who reports upon every court-martial proceeding which it is the. duty of the Secretary of War to submit to the President for his final action, is a matter of the deepest concern to the President, and to every one of his military subordinates. The law requires that ‘ conduct unbecoming an officer and a gentleman’ shall be followed by a sentence of dismissal from the military service, and the President alone can mitigate the sentence. If there could be any distinction every consideration requires that, more than any other officer of the Army, the Judge-Advocate-General should be free, beyond question, from an imputation of such conduct.
    “It is a matter of deep regret to me, therefore, that when the Judge- Advocate-General was given an opportunity to comment upon the charges in question he, in respect to the first charge, either was not able or did not see fit to make an explicit denial of its essential part, or to give in detail such facts and circumstances as would show the falsity of the charge. Instead of doing so he has contented himself with a statement which contains nothing to which Mr. Bateman’s allegations might not possibly be a truthful supplement.
    “So, in respect to the second charge — assisting to negotiate army pay vouchers with Bateman & Co., which General Swaim knew to be fraudulent, and triplicates of outstanding accounts —General Swaim’s response iails to notice that the charge as made by Mr. Batemafi refers not merely to a negotiation of army pay accounts, but to a negotiation of pay accounts alleged to have been known to General Swaim as fraudulent; and to that element of the charge no allusion is made in his response. It is not overlooked that the final clause of the response, asking for its publication, refers to the accusations as false; but his specific answers to them are evidently intended to be fouud in what has gone before.
    “ If there is no proof to sustain the charges made, or if the circumstances can be explained so as to remove every impression of improper conduct on the part of the officer in question, I am of the opinion that the welfare of the military service requires that the proper steps should be taken for his vindication. It is not a personal but an official and public matter. He has not, in my view, recognized this necessity ; and as he has not done so, I am compelled to recommend to you the appointment of a court of inquiry to examine into the accusations above mentioned., and to report the facts developed by their investigation, and give their opinion thereon.
    “ I have the honor to be, very respectfully, your obedient servant, “Robert T. Lincoln,
    “ Secretary of War.
    
    “ The President.”
    ■“ Executive Mansion, April 22,1884.
    
    “ Respectfully returned to the Secretary of War with the direction to appoint a court of inquiry, as within recommended.
    “ By direction of the President:
    “ Fred J. Phillips,
    “ Private Secretary.
    
    “ War DEPARTMENT, April 22,1884.
    
    “By direction of the President of the United States a court of inquiry is hereby appointed to examine into the accusations against Brigadier-General David G. Swaim, Judge-Advocate-General United States Army, contained in a letter addressed by A. E. Bateman to the Secretary of War, bearing date April 16, 1884.
    “ The court will- make a full and thorough investigation of all matters embraced in the letter of Mr. Bateman, and will report the facts developed by its investigation and give an opinion thereon.
    “Detail for the court: Major-General John Pope, U. S. Army; Brigadier-General Christopher O. Augur, U. S. Army; Brigadier-General Delos B. Sackett, senior inspector-general, U. S. Army.
    “Major Robert N. Scott, 3rd artillery, will act as judge-advocate and recorder of the court.
    “The court will meet in the city of Washington, D. 0., on Monday, the 5th day of May, 1884.
    “Robert T. Lincoln,
    “ Secretary of War.”
    
    The court of inquiry found as follows:
    About October 15th,. 1881, Mr. J. Stanley Brown entered as . a partner into the firm of Bateman & Go., bankers and stock brokers doing business in the cities of New York and Washington. In May, 1882, Mr. Brown, to increase his interest in the firm, borrowed $5,000 from Brig. Gen. David G. Swaim, for which Gen. Swaim was to receive 6 per cent interest and 10 per cent of the profits accruing to Mr. Brown while holding that money.
    In July, 1882, Mr. Brown determined to withdraw from the firm, and on the 15th of that month, in notifying Gen. Swaim of that fact, Mr. Brown announced his wish to repay the money borrowed and expressed regret that his action would put Gen. Swaim to tbe inconvenience of a reinvestment. Gen. Swaim, Mr. A. E. Bateman, and Mr. Brown thereupon had some discussion upon the transfer and reinvestment of that loan. This discussion was, however, inconclusive, and Mr. Bateman, for the firm of Bateman & Co., gave to Gen. Swaim, at his request, what is known in this case as the “due-bill,” a copy of which is appended to this record as Exhibit L. This due-bill appears to have been an acknowledgment of the indebtedness of Bate-man & Co. to Gen. Swaim on account of the deposit with them of the $5,000 repaid by Mr. Brown.
    During and after Mr. Brown’s connection with the firm of Bateman & Co. Gen. Swaim bought and sold stocks on margins through its agency, the usual accounts being kept by the firm. During all his dealings with Bateman & Co. Gen. Swaim kept but one account with them, which included all those stock transactions and such other monetary dealings as he had with them.
    Disagreements about accounts, or a failure on the part of Gen. Swaim to understand them, occurred, and on several occasions the bank statements were furnished him and offers made to explain such items as he did not understand. In November, 1883, a consolidated statement of his accounts was furnished, to Gen. Swaim by the bank, showing a balance in his favor of $33.89. Gen. Swaim caused statements of his accounts with the bank to be prepared, but as these omitted some transactions they were incomplete. A Mr. Terry, professing to be an expert accountant, was sent with one of these statements (prepared by himself) to the bank, by Gen. Swaim, to get some explanations and to complete the statement by reference to the books. The books were shown to him and all the information asked for at the bank was given.
    In the consolidated statement furnisliedby Bateman & Co. to Gen. Swaim he is credited under date of July 20,1882, with the $5,000 deposited by Mr. Brown upon leaving the firm. As against this and other credits Gen. Swaim is charged with checks drawn upon the bank, all debits arising from his stock operations, etc.
    About February 15, 1884, Gen. Swaim assigned the ufiue-bill, by indorsement, to Bright, Humphrey & Co. (builders) to collect and credit to him on his account with them,, Mr. Humphrey testified that Gen. Swaim told him to collect 'whatever was due on the duebill and credit him with whatever the amount might be. Mr. Beall, the cashier of Bateman & Go., testified that Mr. Humphrey presented the duebill to him as representative of the firm, and demanded payment of the nominal face value, principal and interest. Bateman & Co. refused payment and thereupon Gen. Swaim directed Bright, Humphrey & Co. to bring suit, he promising to defray the expenses of litigation. Suit was brought for $5,00.0.00, with interest and costs.’
    
      Gen. Swaim maintains that be only brought that suit to determine the difference of a few hundred dollars between him and Bateman & Co , but that statement does not appear to have been known to Mr. Bateman until after he had preferred charges against Gen. Swaim.
    On the 16th of April, the day after the suit had been instituted,' Mr. Bateman preferred his charges against Gen. Swaim and iurnished copies of them to the public press. On the next day, these charges having appeared in the newspapers, Mr. M. M. Parker, who appears as the Mend to both parties to the controversy, brought them together at his office for the purpose of reconciling or arranging their difficulties. That meeting resulted in an understanding, the record evidence of which appeared in the guarantee of Gen. Swaim for surrender of the duebill to Mr. Parker and the agreement of Gen. Swaim and Mr. Bateman to submit their business differences to the arbitratiqn of Hon. Benj. Butterworth.
    In the conversation leading to these arrangements reference was made only to so much of Mr. Bateman’s charges as related to the duebill suit. Mr. Bateman denies that the due-bill was to be submitted to arbitration, but both Gen. Swaim and Mr. Parker testifying that such was their understanding of the agreement. The agreement having been made Mr. Bateman addressed his second letter to the Secretary of War, withdrawing his charges and conceding that they had been made under a misapprehension of facts. The Secretary of War, however, on the 18th of April, transmitted both Mr. Bateman’s letter to Gen. Swaim by an endorsement, calling for a report of explanation upon the subject. Gen. Swaim’s reply was returned the same day.
    After the publication of Gen. Swaim’s reply to the Secretary of War Mr. Bateman, in a personal interview with Gen. Swaim, charged that that reply was untrue and declared that it had put an end to the agreement between them. Meanwhile the Secretary of War, not being satisfied with Gen. Swaim’s explanations, reported the matter to the President, recommending a court of inquiry.
    “ADJUTANT GENERAL’S OEPTCE,
    “Washington, June 30,1884.
    
    “ Respectfully referred to Major R. N. Scott, 3rd U. S. Artillery, who will prepare charges and specifications against Brigadier General David G. Swaim, Judge-Advocate-General, If. S. Army, and Lieut. Colonel A. P. Morrow, 6th TJ. S. Cavalry, based upon the information contained in the within record.
    “By order of the Secretary of War.
    “ 0. MoKeever,
    
      “Acting Adjutant-General.”
    
    III. Lieut. Gen. Sheridan was the commanding general of claimant at the time said charges were preferred upon which claimant was put on trial, and said Gen. Slieridan did not prefer said charges nor cause nor direct the preferring thereof and was not the accuser or prosecutor of claimant in the trial had thereunder.
    IV. On the 25th day of July, 1884, the following communication was addressed to said Gen. Swaim:
    “WAR DEPARTMENT,
    
      “Washington Oity, July 22,1884,
    
    
      u Brigadier-General David G. Swaim, Judge-Advocate-General,
    
    
      Ú. S. Army, Washington, I). G.:
    
    “Sir: By direction of the President you will consider yourself in arrest — your limits being the District of Columbia— and, on the 10th of September, 1884, will report in person to the president of the general court-martial appointed to meet on that day in this city (by special orders, No. 151, Headquarters of the Army, dated June 30,1884), for trial on charges a copy of which is herewith transmitted to you.
    “Very respectfully,
    “Bobert T. Lincoln,
    “ Secretary of War A
    
    V. At the trial before the general court-martial claimant, through his counsel, presented the following motion:
    “ In the matter of the charges and specifications pending against Brigadier General David G. Swaim, Judge-Advocate General of the United States Army, before the general court-martial appointed to meet in the City of Washington, D. 0., by special orders No. 151, Headquarters of the Army, dated June 30,1884. The said David G. Swaim in the above matter, not thereby assenting to the jurisdiction of the said court, in the matter of the charges preferred against him on the accusation of Bobert N. Scott, major of the 3rd Artillery, and brevet lieut. colonel of the United States Army, and now pending before such court, and coming only for the purpose of excepting to such jurisdiction of the said court, as stated, to try such charges, by this motion now comes and most respectfully submits this motion, to wit: That the court dismiss the said charges and prosecution thereof for want of jurisdiction in the court to entertain, hear, consider, try, or decide upon such charges and specifications, or either of them, and for ground of such motion assigns the following:
    “It appears on the face of the said charges and specifications that the accused, David G. Swaim, was, at the convening of the said court, and now is, an officer of the Army of the United States, and Judge-Advocate-General of such Army, and being such, this court is judicially made cognizant of the tact that the accused is an officer of such Army, of the rank of brigadier-general, and that Ms commander is the Lieutenant-General of the Army, and the records of the court show that such Lieutenant-General of the Army, to wit, General Philip H. Sheridan, is not the accuser of the said David G. Swain in this case.
    “It further appears by the records of this court that this court was appointed by the President on the 30th of June, 1884, by special orders No. 151, and that, by the order of the President, through the Secretary of War, on the date of July 25th, 1884, the Said accused was put in arrest and directed to report to the said court so convened by the President tor trial on said charges.
    “Wherefore, and from the facts so appearing to this court, it is shown of record that in the said pending case and charges the commander of the said accused is not the'accuser of David G. Swaim, and that by the statute in such case made and provided, being article 72 of the Articles of War, the accused can only be tried before a court-martial appointed as this court is by the President, when the commander of the accused is his accuser; and therefore this court has no jurisdiction to hear, try, or decide on the said charges so pending, and the accused now moves that the charges aforesaid be dismissed for such want of jurisdiction.
    “Charles H. Grosvenor,
    “ Shellabarg-er & Wilson,
    “ Counsel and Attorneys for David G. Swaim.”
    
    YI. On the day of their respective dates the following orders issued:
    “WAR DEPARTMENT,
    “ Washington, June 30,1884.
    
    “By direction of the President a general court-martial is appointed to meet in this city at 11 o’clock a. m. on Wednesday, the 10th day of September, 1884, or as soon thereafter as practicable, for the trial of such persons as may be brought before it.
    “Detail for the court: Major-General John M. Schofield; Brigadier-General Alfred H. Terry; Brigadier-General William B..Rochester, paymaster-general; Brigadier-General SamuelB. Holabird, quartermaster-general; Brigadier-General Robert Murray, surgeon-general; Brigadier-General John Newton, Chief of Engineers; Colonel Charles H. Smith, 19th infantry; Colonel George L. Andrews, 25th infantry; Colonel John R. Brooke, 3d infantry; Colonel Luther P. Bradley, 13thinfantry; Colonel Romeyn B. Ayers, 2d artillery; Colonel El well S. Otis, 20th infantry; Colonel Henry M. Black, 23d infantry; Major Asa B. Gardiner, judge-advocate.
    “The court is empowered to proceed with the business before it with any number of members present not less than the minimum prescribed by law.
    
      ‘‘Upon tie final adjournment of tbe court the members will return to their proper stations.
    “ Robert T. Lincoln,
    
      Secretary of War.
    
    “Special Orders,) “Headquarters oe the Army,
    “No.201. j “Adjutant-General’s Oeeice,
    Washington, August 27,1884.
    
    “1. With the approval of the President, and by direction of the Secretary of War, the meeting of the general court-martial, instituted by paragraph 'i, special orders, No. 151, June 30, 1884, from this office, to assemble in this city on Wednesday, the 10th day of September, 1884, is postponed until 11 o’clock- a. m. on Saturday, the 15th day of November, 1884, or as soon theraffcer as practicable.
    #**##»*#
    “By command of Lieutenant-General Sheridan:
    “ Chauncey McKeever,
    “ Acting Adjutant-General?
    
    “War Department,
    “ Washington; September 27,1884.
    
    “By direction of the President, Brigadier-General Nelson A. Miles is detailed as a member of the general court-martial appointed to meet in this city by an older from the War Department, dated June 30,1884, published in special orders, No. 151, June 30,1884, from the headquarters of the Army, vice Colonel Elwell S. Otis, 20th infantry, hereby relieved.
    “Robert T. Lincoln,
    “ Secretary of War?
    
    “Rooms oe the General Court-martial,
    “40 and 41 Corcoran Building,
    “ Washington, I). G., Wovember 15,1884.
    
    “The court met pursuant to the foregoing orders at 11 o’clock a. m.
    “Present: (1) Major-General John M. Schofield, U. S. A.; (2) Brigadier-General Alfred H. Terry, U. S. A.; (3) Brigadier-General Nelson A. Miles, U. S. A.; (4) Brigadier-General William B. Rochester, paymaster-general; (5) Brigadier-General Samuel B. Holabird, quartermaster-general; (6) Brigadier-General Robert Murray, surgeon-general; (7) Brigadier-general John Newton, Chief of Engineers; (8) Col. Charles H. Smith, 19th infantry; (9) Col. George L. Andrews, 25th infantry; (10) Col. John R. Brooke, 3rd infantry; (11) Col. Luther P. Bradley, 13th infantry; (12) Col. Romeyn B. Ayers, 2nd artillery; (13) Col. Henry M. Black, 23rd infantry, and Judge-Advocate Asa Bird Gardiner, judge-advocate of the court.
    
      “The court then proceeded to the trial of Brigadier-General David G. Swaim, Judge-Advocate-Gen eral United States Army, who thereupon came before the court, and, having heard the foregoing orders convening the court read, was asked if he had any objection to any member present named in such orders, to which he replied as follows:
    “General Swaim: I desire to introduce a motion asking the authority or right of a court-martial convened by the President of the United States, by his order, to proceed with the trial of these charges, inasmuch as 1 am not accused by my commanding officer. I also desire to introduce to the court Judge Shellabarger, who will represent me in this matter. My counsel in the case will be Messrs. Shellabarger and Wilson and Gen’l Charles H. Grosvenor, of Ohio. Gen’l Gros-venor will not be able to be present, however, to-day.
    General Court-martial)
    Orders, Wo. 19. 3
    “ Headquarters oe the Army,
    “Adjutant General’s Oeeice,
    “Washing-ton, February 24,1885.
    
    “Before a general court-martial which convened in Washington, District of Columbia, pursuant to special orders, No. 151, dated June 30, 1884; No. 201, dated August 27,1884; and No. 227, dated September 27, 1884, from these headquarters, and of which Major-General John M. Schofield is president, and Brigadier-Generals Nelson A. Miles; Samuel B. Hola-bird, quartermaster-general; Robert Murray, surgeon-general; John Newton, Chief of Engineers; and Colonels Charles H. Smith, 19th infantry; George L. Andrews, 25th infantry; John R. Brooke, 3d infantry; Luther P. Bradley, 13th infantry; Romeyn B. Ayres, 2d artillery; and Henry M. Black, 23d infantry, are members, was arraigned and tried—
    “Brigadier General David G. Swaim, Judge-Advocate-General U. S. Army, on the following charges and specifications :
    “Charge I. ‘Conduct unbecoming an officer and a gentleman, in violation of the 61st article of war.’
    “ Specification 1st. In that he, Brigadier-General David G. Swaim, Judge-Advocate-General U. S. Army, having, on or about the 15th day of July, 1882, deposited the nominal sum of five thousand dollars with the firm of Bateman & Co., bankers and brokers, of Washington, D. 0., of which said nominal sum one thousand dollars was represented by his, Swaim’s, own check for that amount upon said firm, for which deposit he received an acknowledgment in writing, in words and figures as follows:
    , “ ‘ Due D. G. Swaim, or order, five thousand dollars, for value received.
    •“ ‘'Bateman & Co.
    
      “ ‘ Washington, D. C., July 15th, 1882.
    
    “ Ten per. cent and interest 6 per cent.’ ”
    which said acknowledgment was given by Bateman & Co., and received by the said Swaim upon the understanding between the said parties that it was to serve as a mere memorandum of the deposit aforesaid, and the said Swaim having, in the course of his business transactions with that firm, reduced the balance remaining to his credit therewith to the amount of $33.89, and the said Swaim having subsequently duly received a statement of his accounts from said firm of Bateman & Co., showing there had been credited to him the said deposit of $5,GOO, and that there was then due him only such balance of $33.89, he, the said Swaim, did, nevertheless, thereafter, on or about February 15, 1884, duly assign and transfer the aforesaid written 'acknowledgment of July 15, 1882, by his indorsement thereon, in words and figures as follows:
    
      “ Pay to Bright, Humphrey & Co., or order.
    “ ‘D. G. Swaim.’”
    to the firm of Bright, Humphrey & Co., builders, etc., of Washington, D. C., and did thereupon knowingly and fraudulently seek through the said last-named firm to'obtain from and compel payment by the said firm of Bateman & Co. of the amount of their said acknowledgment of July 15, 1882, thus attempting to commit a fraud upon the said Bateman & Co. This in Washington, in the District of Columbia.
    “ Specification 2d. (Buled out on demurrer.)
    “ Specification 3d. ‘ In that he, Brigadier-General David G. Swaim, Judge-Advocate-General U. S. Army, having received by reference from the Secretary of War, at or about three o’clock p. m. of April 18,1884, the following letters, dated, respectively, April 16 and 17, 1884, in words and figures as follows:
    “1411 F. Street, Bateman & Co., Bankers,
    “ Washington, D. 0., April 16th, 1884.
    
    “To the Hon. Secretary oe War:
    “Dear Sir: It becomes my duty to prefer charges against Brigadier Gen. D. G. Swaim, at the head of the Bureau of Military Justice of the United States Army, for fraud and for conduct unbecoming an officer and gentleman.
    “I stand ready to prove that the said D. G. Swaim has committed a fraud, to all intents and purposes, upon the banking house of Bateman & Co., of which I am a member.
    “ Some two years ago the said D. G. Swaim, having deposited the sum of five thousand dollars, received, upon his departure for the West, a simple duebill, at his request, to have in case an accident should befall him.
    
      “This amount was checked out subsequent to that date by said D. GL Swaim, for which we have a number of vouchers.
    “After having drawn all the money out and a settlement being made, he negotiated and transferred the duebill for the full amount with certain parties in this city.
    “ I am further ready to prove the said D. G-. Swaim assisted to negotiate with this firm army pay vouchers which he knew to be fraudulent and'triplicates of outstanding accounts.
    “I ask that a court-martial be ordered for the trial of the said D. G. Swaim on charges preferred. I desire, when ordered, to amend this by presenting other charges under the head of conduct unbecoming an officer and a gentleman.
    “I am, sir, very respectfully,
    “A. E. Bateman.”
    “1411 F Street, Bateman & Co., Bankers,
    “ Washington, D. 0., April 17th, 1884.
    
    “To the Hon. Secretary oe War:
    “Dear Sir: The suit against our firm on the duebill mentioned in my charges of yesterday against Gen. D. G. Swaim having been withdrawn and the differences between Gen. Swaim and myself satisfactorily settled, I hereby withdraw the charges contained in my letter of April 16th against said Gen. D. G. Swaim, he claiming they were made under a misapprehension of facts, which I concede.
    “Yery truly yours, A. E. Bateman.”
    said reference being contained in the following indorsement placed upon the above-quoted letter of April 16th, in words and figures as follows:
    “War Department, April 18,1884.
    
    “Respectfully referred to the Judge-Advocate-General for such remarks as he may desire to submit upon the allegations made in the within communication, and for any application he may desire to make.
    “Robert T. Lincoln,
    “ Secretary of War.”
    
    did return the said letter above described to the Secretary of War at about four o’clock p. m. of the same day, viz, April 18, 1884, with an indorsement in words and figures as follows:
    “Bureau oe Military Justice, April 18,1884.
    
    “Respectfully returned to the Secretary of War. I had a bank account with Bateman & Co., and, besides, I loaned them five thousand dollars, at 6 per cent, interest, for which they gave me an instrument reading: Glue D. G. Swaim, or order, five thousand dollars, value received. Bateman & Co., Washington, D. C., July 15,1882.’ This is a negotiable promissory note, according to all the authorities on the subject, and waS transferred in due course of business and payment demanded, but refused. Bateman & Co. claimed set-offs to the note, the correctness of which I denied. I endeavored to effect a settlement with them or refer the matter to an arbitrator, but without effect. The note was put in suit, but they now agree to refer the whole subject to an arbitrator, and with that view the suit has been withdrawn. The note (or duebill, as it is incorrectly termed) is now in the possession of Bright and Humphrey, the endorsees thereof.
    “In regard to the fraudulent pay vouchers, the facts are as as follows: Lieutenant-Colonel A. P. Morrow, at the time a member of General Sherman’s staff, a comparative stranger to me at the time, came to my office, in company with another officer, and requested .me to advance him several months’ pay on his pay accounts. I told him I did not do that kind of business, but in a friendly way referred him to the brokers in the city doing such business, and named Bateman & Co., with others. I may have given, him a note of introduction to that firm. I did not know for some time afterwards that Bateman and Co. had advanced money to Colonel Morrow on his pay accounts..
    “It will be seen that I had no concern or interest in these pay accounts whatever, and all 1 did was the friendly act of introducing a brother officer to those who were in the habit of doing what I could not do for him. I have no other knowledge of any other pay-account transaction with Bateman & Co. The only request I have to make' is that this statement may receive the same publicity that the within false accusations received.
    “D. G. Swaim,
    “ Judge-Advocate- General.”
    which said endorsement, by the said Swaim, was evasive, un-candid, and false, and calculated and intended to deceive the Secretary of War, especially in the following particulars:
    “First. In stating that he, Swaim, had a bank account with Bateman and Company and besides had loaned them five thousand dollars at 6 per cent, interest, whereas in truth and in fact' he, the said Swaim, had had but one account with said firm, had not loaned them five thousand dollars, but had deposited what purported to be that amount, but which sum was actually but four thousand dollars, and lie, the said Swaim, well knew at the time of making this statement in his said in-dorsement that said deposit had been credited to him in his said account and actually drawn against by him, the said Swaim.
    “ Secondly. In that the said indorsement insufficiently and incorrectly described tbe said instrument of July 15, 1882, acknowledging said deposit, by omitting a material portion thereof, viz, the following words and figures: •' Ten per cent and interest 6 per cent,’ so. as to make said instrument appear to be a negotiable promissory note.
    “Thirdly. In that the said indorsement alleges that said instrument of July 15,1882, was transferred in due course of business, whereas in truth and in fact he, the said Swaim, did only informally transfer the said instrument to the said firm of Bright, Humphrey and Company for the purpose of enforcing payment thereof, with the understanding that all ex-peuses of collection or legal expenses incurred therein should be paid by him, the said Swaim.
    “ Fourthly. In that the said indorsement states that ‘Bate-man and Company claimed set-offs to the note, the correctness of which I (Swaim) denied,’ the fact being that the said Swaim had never presented and well knew he, Swaim, had never presented the said note or duebill for payment to the said firm of Bateman & Co., and that no set-off had been claimed against it until it had been transferred to Bright, Humphrey & Co., and payment thereof demanded by them.
    “Fifthly. In that the said indorsement states ‘I (Swaim) endeavored to effect a settlement with them or refer the matter to an arbitrator, but without effect,’ whereas, in truth and in fact, he, the said Swaim, never presented said note or due-bill to said Bateman & Co. for payment or settlement, nor had he, Swaim, ever endeavored or requested to have it referred to arbitration.
    “ Sixthly. In that the said indorsement states that ‘thenote (or duebill as it is incorrectly termed) is now in the possession of Bright, Humphrey & Co., the indorsees thereof,’ whereas, in truth and in fact, the said note or duebill at the time of said indorsement was, and by the said Swaim well known to be, in the possession of Mr. Myron M. Parker, of Washington, D. 0., in pursuance of a guarantee to that effect entered into and signed by the said Swaim on the previous day, viz., on April 17, 1884.
    “Seventhly. In that, referring to the application of Lieutenant-Colonel Albert P. Morrow for an advance of money upon his pay accounts, the said Swaim states in the said in-dorsement that ‘I (Swaim) told him that I did not do that kind of business,’ whereas, in truth and in fact, the reason actually given by the said Swaim to the said Morrow for not advancing him the money upon the security suggested was that he, the said Swaim, in consequence of other calls upon his pecuniary resources, had not then .the money to spare. This at Washington, D. C.
    “Specification 4th. ‘In that he, Brigadier-General David G. Swaim, Judge-Advocate-General U. S. Army, being cognizant of an arrangement or specific agreement by which certain bankers and brokers were to bereimbarsed by Lieutenant-Colonel Albert P. Morrow, 6th U. S. Cavalry, for moneys advanced by them to the said Morrow, on certain fraudulent monthly pay accounts for sums pretended to be due said Morrow from the United States for his services as an officer of the Army, of which fraudulent pay accounts for the same months had been sold by the said Morrow to said certain bankers and brokers, and the value of said arrangement or speciñc agreement depending upon the said Morrow’s escaping trial by general court-martial and punishment for the utterance of said fraudulent pay accounts, he, the said Swaim, on duty by virtue of his office and regardless of his peculiar relations to the administration of justice in the Army, did threaten to use his official position and his knowledge of the said fraudulent utterance of pay accounts and transactions hereinbefore mentioned so as to cause the dismissal of said Morrow from the Army, or to otherwise impair the value of the securities given by the said Morrow to said bankers and brokers in furtherance with their arrangement with him to recover the sums advanced by them unless they, the said bankers and brokers, made provision for the payment of a claim held by him, the said Swaim, against the said Morrow for the sum of one hundred and fifteen dollars, this threat being made to Mr. A. B. Bateman, one of the parties in interest, and in the presence of Mr. Myron M. Parker, at the office of the said Parker, in the city of Washington, D. C., on or about August 1,1884.’
    “Charge II. ‘Beglectof duty, in violation of the 62d arti-cicle of war/
    “Specification. ‘In that he, Brigadier-Gen eral David G. Swaim, Judge-Advocate-General U. S. Army, having, by his introduction of Lieutenant-Colonel Albert P. Morrow, 6th U. S. Cavalry, to the firm of Bateman and Company, bankers and brokers, and by his personal representations to them, induced said firm to purchase certain pay accounts from the said Morrow for pretended sums due the said Morrow from the United States for his services as an officer of the Army, and the said Swaim having been notified by Mr. A. E. Bateman, of said firm, that said pay accounts were fraudulent, in that they were duplicates or triplicates of pay accounts then outstanding, he, the said Swaim, being on duty by virtue of his office of Judge-Advocate-General of the Army, did, nevertheless, fail to report the facts in the case to the proper authorities. This at Washington, D. C., on or about March 15,1883.’
    “To which charges and specifications the accused, Brigadier-General David G. Swaim, Judge Advocate General U. S. Army, pleaded ‘not guilty.’
    
      “ Finding.
    
    “The court, having maturely considered the evidence adduced, finds the accused, Brigadier-General David G. Swaim, Judge-Advocate-General U. S. Army, as follows:
    “Charge I. Of the 1st specification, ‘Guilty, except, the words ‘'upon the understanding between the said parties that it was to serve,’ and the word ‘mere’ and the words ‘to the amount of thirty-three and dollars,’ and the word ‘such,’ after the word ‘only,’ substituting for said word ‘such’ the word ‘a;’ and except also the words ‘and fraudulently,’ and substituting the word, ‘a’ between the words ‘compel’ and ‘payment-and except the words ‘of the amount of,’ substituting therefor the word ‘on;’ a.nd except the word ‘fraud,’ substituting therefor the word ‘wrong,’ and of the excepted words not guilty.
    “ Of th e 3d specification, ‘ Guilty, except the words ‘ and false,’ and in the first subdivision of said specification except the word ‘ had, ’ substituting therefor the words ‘ at the time,’ so th at it shall read, where amended, as follows, viz: ‘ He, the said Swaim, had at the time but one account; ’ and, in the second subdivision, except the word ‘ material ’ and the words ‘ so as to make said instrument appear to be a negotiable promissory note; ’ and, except the words of the third subdivision, to wit: ‘ Thirdly. In that the said indorsement alleges that said instrument of July 15, 1882, was' transferred in due course of business, whereas, in truth and in fact, he, the said Swaim, did only informally transfer the said instrument to the said firm of Bright, Humphrey and Company for the purpose of enforcing payment thereof, with the understanding that all expenses of collection or legal expenses incurred therein should be paid by him, the said Swaim, and, in the fourth subdivision, except the words ‘until it had been transferred to Bright, Humphrey a,nd Company and payment thereof demanded by them;’ and, except the words of the sixth subdivision, to wit: ‘Sixthly. In that the said indorsement states that ‘the note (or duebill, as it is incorrectly termed) is now in the possession of Bright, Humphrey and Company, the in-dorsees thereof; ’ whereas, in truth and in fact, the said note or duebill, at the time of said indorsement, was, and by the said Swaim well known to be, in the possession of Mr. Myron M. Barker, of Washington, D. C., in pursuance of a guarantee to that effect entered into and signed by the said Swaim on the previous day, viz, on April 17, 1884;’ and, except the words of the seventh subdivision, to wit: ‘Seventhly. In that, referring to the application of Lieutenant Colonel Albert P. Morrow for an advance of money upon his pay account, the said Swaim states, in the said indorsement, that ‘I (Swaim) told him I did not do that kind of business;’ whereas, in truth and in fact, tbe reason actually given by tbe said Swaim to tbe said Morrow for not advancing bim money upon tbe security suggested was that be, tbe said Swaim, in consequence of other calls upon bis pecuniary resources, bad not then the money to spare;’ and of tbe excepted words not guilty.”
    “ Of tbe 4th specification, ‘Not guilty.’”
    “ Of charge, ‘Not guilty; but guilty of conduct to the prejudice of good order and military discipline, in violation of tbe 62d article of war.’”
    “ Charge II. Of tbe specification, ‘ Not guilty.’ Of tbe charge, ‘Not guilty.’”
    “These findings leave tbe accused convicted of offenses described as follows:
    “ Charge. Conduct to tbe prejudice of good order and military discipline, in violation of the 62d article of war.
    “ Specification 1st. In that be, Brigadier-General David G. Swaim, Judge Advocaté-General, TJ. S. Army, having on or about tbe 15th day of July, 1882, deposited the nominal sum of $5,000 with tbe firm. of Bateman and Company, bankers and brokers, of Washington, D. C., of which said nominal sum one thousand dollars was represented by bis, Swaim’s, own check for that amount upon said firm, for which deposit be received an acknowledgment in writing in words and figures as follows:
    “‘Due D. G. Swaim, or order, five thousand dollars, for value received.
    ‘“Bateman & Co.
    ‘“Washington, D. C., July 15th, 1882.
    
    “ ‘ Ten per cent and interest 6 per cent.’
    which said acknowledgment was given by Bateman and Company and received by said Swaim as a memorandum of the deposit aforesaid, and the said Swaim having in the course of his business transactions with that firm reduced the balance remaining to his credit therewith, and the said Swaim having subsequently duly received a statement of his accounts from said firm of Bateman and Company showing there had been credited to him the said deposit of five thousand dollars and that there was then due him only a balance of thirty-three dollars, he, the said Swaim, did, nevertheless, thereafter, on or about February 15,1884, duly assign and transfer the aforesaid written acknowledgment of July 15,1882, by his indorsement thereon in words and figures as follows:
    “‘Pay to Bright, Humphrey & Co., or order.
    “‘D. G. Swaim.’”
    to the firm of Bright, Humphrey and Company, builders, etc., of Washington, D. C., and did thereupon knowingly seek, through the said last-named firm, to obtain from and compel a payment by the said firm of Bateman & Company on their said acknowledgment of July 15,1882, thus attempting to commit a wrong upon the said Bateman and Company. This in Washington, in the District of Columbia.
    “ Specification 3d. In that he, Brigadier-General David G. Swaim, Judge-Advocate General, U. S. Army, having received by reference from the Secretary of War, at about three o’clock p. m. of April 18, 1884, the following letters, dated, respectively, April 16 and 17,1884, in words and figures as follows:
    “1411 F Street, Bateman & Co., Bankers,
    Washington, B. C., April 16th 1884.
    
    “To the Hon. Secretary oe War:
    “Dear Sir: It becomes my duty to prefer charges against Brigadier-General D. G. Swaim, at the head of the Bureau of Military Justice of the United States Army, for fraud and for conduct unbecoming an officer and gentleman. I stand ready . to prove that the said D. G. Swaim has committed a fraud, to all intents and purposes, upon the banking house of Bateman & Co., of which I am a member.
    “Some two years ago the said D. G. Swaim, having deposited the sum of five thousand dollars, received, upon his departure for the West, a simple duebill, at his request, to have in case an accident should befall him.
    “This amount was checked out subsequent to that date by said D. G. Swaim, for which we have a number of vouchers.
    “After having drawn all the money out and a settlement being made, he negotiated and transferred the duebill for the full amount with certain parties in this city.
    “I am further ready to prove that said D. G. Swain assisted to negotiate with this firm army pay vouchers which he knew to be fraudulent and triplicates of outstanding accounts.
    “I ask that a court-martial be ordered for the trial of the said D. G. Swain on charges preferred. I desire, when ordered, to amend this by presenting other charges under the head of conduct unbecoming an officer and a gentleman.
    “I am, sir, very respectfully, A. E. BATEMAN.
    “ 1411 F Street, Bateman & Co., BANKERS,
    “ Washington, D. G., April 17th, 1884.
    
    “To the Hon. Secretary oe War :
    “ Dear Sir : The suit against our firm, on the duebill mentioned in my charges of yesterday against General D. G. Swaim, having been withdrawn and the differences between General Swaim and myself satisfactorily settled, I hereby withdraw the charges contained in my letter of April 16th, against said General D. G. Swaim, be claiming they were made under a misapprehension of facts, which I concede.
    “Very truly, yours, “A. E. BATEMAN.”
    said reference being contained in. the following indorsement placed upon the above-quoted letter of April 16th, in words and figures as follows:
    “War Department, April 18th, 1884.
    
    “Respectfully referred to the Judge-Advocate-General for such remarks as he may desire,to submit upon the allegations, made in the within communication, and for any application he may desire to make.
    “Robert T. Lincoln,
    “ Secretary of War.”
    
    did return the said letter above described to the Secretary of War at about four o’clock p. m. of the same day, viz., April 18, • 1881, with an indorsement in words and figures as follows:
    “ Bureau oe Military Justice, April 18th, 1884.
    
    “Respectfully returned to the Secretary of War. I had a bank account with Bateman & Co., and, besides I loaned them five thousand dollars at 6 per cent interest, for which they gave me an instrument reading: “Due D. G. Swaim, or order, five thousand dollars, value received. Bateman & Co. Washington, D. C., July 15th, 1882.” This is a negotiable promissory note, according to all the authorities on the subject, and was transferred in due course of business and payment demanded, but refused. Bateman & Co. claimed set-offs to the note, the correctness of which I denied. I endeavored to effect a settlement with them or refer the matter to an arbitrator, but without effect. The note was put in suit, but they now agree to refer the whole subject to an arbitrator, and with that view the suit has been withdrawn. ' The note (or duebill as it is incorrectly termed) is now in the possession of Bright and Humphrey, the indorsers thereof.
    “ In regard to the fraudulent pay voucher, the facts are as follows: Lieutenant-Colonel A. P.Morrow, at the time a member of General Sherman’s staff, a comparative stranger to me at the time, came to my office in company with another officer, and requested me to advance him several months’ pay on his pay accounts. I told him I did not do that kind of business, but in a friendly way referred him to brokers in the city doing such business, and named Bateman & Co., with others. I may have given him a note of introduction to that firm. I did not know for some time afterwards that Bateman and Co. had advanced money to Colonel Morrow on his pay accounts.
    “It will be seen that I had no concern or interest in these pay accounts whatever, and all I did was the friendly act of introducing a brother officer to those who were in the habit of doing what I could not do for him. I have no knowledge of any other pay-account transaction with Bateman & Co. The only request I have to make is that this statement may receive the same publicity that the within false accusations received. “D. G. Swaim,
    
      “Judge Advocate General.
    
    which said indorsement, by the said Swaim, was evasive, un-eandid, and calculated and intended to deceive the Secretary of War, especially in the following particulars:
    “First. In stating that he, Swaim, had a bank account with Bateman & Company, and besides had loaned them $5,000 at 6 per cent, interest, whereas, in truth and in fact, he, the said Swaim, had at the time but one account with said firm, had not loaned them $5,000, but had deposited what had purported to bethat amount, but which sum was actually but $4,000 and he, the said Swaim, well knew at the time of making this statement in his said indorsement that said deposit had been credited to him in his said account and actually drawn against by him, the said Swaim.
    “ Secondly. In that the said indorsement insufficiently and incorrectly described the said instrument of July 15, 1882, acknowledging said deposit, by omitting a portion thereof, viz., the following words and figures: “Ten per cent, and interest 6 per cent.”
    “Fourthly. In that the said indorsement states that “Bate-man & Company claimed set-offs to the note, the correctness of which I (Swaim) denied,” the fact being that the said Swaim had never presented and well knew he, Swaim, had never presented the said note or due-bill for payment to the said firm of Bateman & Company, and that no set-off had been claimed against it.
    “Fifthly. In that the said indorsement states “I (Swaim) endeavored to effect a settlement with them or refer the matter to an arbitrator, but without effect,” whereas, in truth and in fact, he, the said Swaim, never presented said note or due-bill to said Bateman & Co. for payment or settlement, nor had he, Swaim, ever endeavored or requested to have it referred to arbitration.
    “ The court sentenced the accused ‘ to be suspended from rank, duty, and pay for the period of three years. ”
    The foregoing findings and sentence having been considered by the President, the record of proceedings was returned to the court with the following remarks:
    
      Executive Mansion, February 11,1885.
    
    “Tbe record in tbe foregoing case of Brigadier-General David G. Swaim, Jndge-Advocate-General U. S. A.-, is hereby returned to tbe general court-martial before wbicb tbe proceedings were bad, for reconsideration as to the findings upon tbe first charge only, and as to tbe sentence, neither of wbicb are believed to be commensurate with tbe offenses as found by tbe court in tbe first and third specifications under tbe first charge. Tbe attention of tbe court is invited to tbe accompanying communication of tbe Attorney-General, under date of the 10th instant, whose views upon tbe matter submitted for reconsideration have my concurrence.
    “ Chester A. Arthur.”
    Tbe communication of tbe Attorney-General was as follows:
    “DEPARTMENT oe JUSTICE, February 10,1885.
    
    “Sir: Section 923 of tbe Regulations of tbe Army of tbe United States,under tbe title ‘Oourts-martial,’ provides that:
    “ When a court-martial appears to have erred in any respect, tbe reviewing authority may reconvene the court for a consideration of its action, with suggestions for its guidance. Tbe court may thereupon, should it concur in tbe views submitted, proceed to remedy the errors pointed out, and may modify or completely change its findings. Tbe object of reconvening tbe court in such a caséis to afford it an opportunity to reconsider tbe record, for tbe purpose of correcting or modifying any conclusions thereupon, and, also, to make any amendments of tbe record necessary to perfect it.
    “Tbe record óf tbe court-martial, including the finding and sentence of tbe court, in tbe case of Brigadier-General David G. Swaim, Judge-Advocate-General U. S. A., has been transmitted to tbe President, for bis action thereon, as provided by law.
    “ General Swaim was tried upon two charges.
    “ 1st. ‘ Conduct unbecoming an officer and a gentleman, in violation of tbe 61st article of war.
    “ 2nd. ‘Neglect of duty in violation of tbe 62d article of war.’
    “ Of tbe second charge tbe court has found tbe accused not guilty.
    ‘ ‘ Tbe first charge is accompanied by four specification s. Tbe second of these specifications was ruled out on 'demurrer, and of tbe offenses set out in the fourth specification tbe court has found tbe accused not guilty. Of tbe offenses set out in the first and third specifications tbe court has (omitting certain phrases in tbe third, which were ruled out on demurrer) found the accused guilty, except as to certain words, phrases, and paragraphs wbicb are stricken out, and with tbe substitution of certain other words and phrases intended to restrict and qualify tbe finding; and, in lien of tbe charge ‘ conduct unbecoming an officer and a gentleman, in violation of the 61st article of war,’ which these specifications were intended to support, the court has inserted the following : ‘ Conduct to the prejudice of good order and military discipline, in violation of the 62d article of war.’ ”
    “ That the court had a legal right to make such a finding is, I think, not open to doubt. (13th Attorney-General’s Opinions, 460. Digest Opinions, Judge-Advocate-General, 264, 266. De Hart’s Courts-martial, 180-’5. Ives’ Military Law, 155. Benét’s Military Law and Courts-martial, 130,132. Harwood’s Naval Courts-martial, 23, 224.)
    “ But whether, in view of the specific facts actually found by •the court, it acted advisedly in thus refusing to find the defendant guilty of ‘ conduct unbecoming an officer and a gentleman ’ and in substituting therefor the words ‘ conduct to the prejudice of good order and military discipline ’ seems to admit of very serious doubt.
    “ The first specification of charge I contains a substantial allegation of an attempted fraud by the accused upon the banking firm of Bateman & Co., in the transfer by Swaim to a third party for the purposes of suit of a certain memorandum of deposit given by Bateman & Co. to Swaim on the 15th of July, 1882, said transfer being made after Swaim had, in the course of his business, withdrawn nearly the entire sum covered by the memorandum of deposit from said banking-house,
    ‘ thus attempting to commit a fraud upon said Bateman & Co.’ The court has found all the material facts as alleged in this specification, but in the clause last quoted has substituted the word ‘ wrong ’ for ‘ fraud,’ so that in the findings of the court the clause reads: ‘thus attempting to commit a wrong upon said Bateman & Co.;’ and the finding further states in substance that what the accused did in this respect he did ‘ knowingly.’
    “If, as the court finds, the defendant did deliberately and. with a knowledge of the facts seek, in the manner described, to perpetrate a ‘wrong’ upon Bateman & Co., the line of distinction between the ‘wrong’ which the court finds he sought to commit and the ‘fraud’ which he was charged with seeking to commit is an exceedingly narrow one. Such a ‘wrong’ deliberately planned and perpetrated would involve the same moral turpitude whether it were designated as a fraud or as a wrong, and in either event the offense would seem to fall much more naturally and appropriately under the classificatibn .of ‘conduct unbecoming an officer and a gentleman’ than in the category of offenses to the ‘ prejudice of good order and military discipline.’ The evidence adduced upon this point may or may not satisfy the court of the immorality or dishonest intent of the accused in the particular acts described in this specification. If the court has reached the latter conclusion, then the accused is entitled to such a finding or verdict upon the specification as will indicate the absence of immoral or dishonest purpose, which the present finding does not. But, on the other hand, if the court is satisfied of such immoral or dishonest purpose, then it is difficult to understand why the facts should be glossed oyer by the use of the ambiguous word ‘ wrong ’ or why the original charge of ‘ conduct unbecoming an officer and a gentleman ’ should not be sustained.
    “The third specification charges the accused in substance with having prepared and forwarded to his official superior, the Secretary of War, a written statement in regard to the transactions referred to in the first specification in regard to certain facts set out in two letters from A. E. Bateman to the Secretary of War, which statement by the said Swaim is charged to have been ‘ evasive, uncandid, and false, and calculated and intended to deceive the Secretary of War.’ Then follows an enumeration of seven particulars wherein the said statement was false, evasive, and intended to deceive.
    “Of the substance of this specification the court has also found accused guilty. After reciting at length the letters of Bateman, their reference by the Secretary of War to Swaim, and the official indorsement thereon of the latter, the finding further proceeds: ‘ which said indorsement by the said Swaim was evasive, uncandid, and calculated and intended to deceive the Secretary of War, especially in the following particulars.’
    “In the succeeding enumeration of the particulars one has been found by the court exactly as charged, three have been found substantially as charged, and as to the remainder the accused has been found not guilty.
    “In the first branch of the finding upon the third specification above quoted it will be observed that the words ‘ and false,’ as contained in the original specifications, are stricken out. In the enumeration of particulars, however, certain of the statements made by the accused in the indorsement in controversy are expressly found to have been false, as he, Swaim, ^well knew,’ so that there is apparently no ground to assume that in striking out the words ‘and false’ the court intended to acquit the accused of having made a false indorsement. The only inference I can derive from this action is that by striking out these words as applied to the indorsement as a whole and yet finding in terms certain specific falsehoods contained in said indorsement the court simply meant to negative the implication that the indorsement was false in every particular while at the samo time indicating that, being a mixture of truth and falsehood, it was as a whole calculated and intended to deceive the Secretary of War.
    “However this maybe, the court has in fact found the accused guilty of having presented to the Secretary of War a written indorsement containing certain specific statements which the accused! knew to be false, and of having made such statements for the purpose and with, the intention of deceiving the Secretary of W ar.
    “The finding of the court upon the specifications plainly shows this. Yet, at the same time, taten as a whole, in connection with the finding upon the charge, it would seem to indicate that in the opinion of the members of the court the ofiense thus established is not one which can properly be classified as ‘unbecoming an officer and a gentleman.’
    “I find it difficult to reconcile this conclusion with any recognized standard of either officer-like or gentleman-like conduct; and it can. only be so reconciled by annexing to the words ‘conduct unbecoming an officer and.a gentleman,’ a narrow and very limited significance, in my judgment wholly incommensurate with the proper and reasonable import of those words.
    “It is not improbable that the argument upon this point of the learned and able counsel for the accused may have produced more than an ordinary impression upon the minds of the court. That argument was apparently intended to support the proposition that the charge of ‘ conduct unbecoming an officer and a gentleman,’ under the Gist article of war, properly embraced only offenses of the grossest and basest character, of such a nature as to render the guilty party a moral and social outlaw. While it may be true that the position of the learned counsel has not been without some countenance I do not think it should receive the official sanction of the President of the United States. It should not be necessary to prove that an individual is a moral monstrosity in order to demonstrate his unfitness to be a trusted officer of the army.
    “Undoubtedly charges of mere indecorum should not be (and I believe they never are) made the basis of prosecution under the 61st article of war. The punishment annexed to a conviction under that article clearly indicates that prosecutions under it should be limited to the more serious class of offenses. But between the grossest offenses of which an officer may be guilty and which are not specially enumerated in the articles of war and those of a character simply prejudicial to ‘good order and military discipline,’ such as are apparently contemplated by the 62d article of war, there are intervening grades of offenses, many of which are in every proper sense of the wo.rds ‘unbecoming an officer and a gentleman,’ and the commission of which by any person is a sure indication that he is unfitted to hold an office of trust and honor in the military service.
    “The objection to the finding of the court in General Swaim’s case is therefore based upon the obvious inconsistency between the findings of fact as contained in the specifications and the graduatioil of the offense in the substituted charge The action of the court as a whole seems to involve a serious lowering of tbat bigli standard of honor which from the earliest days has been the pride and the glory of our military service, and which was expressed on a memorable occasion bythe great commander in chief of onr Revolutionary armies, when reluctantly compelled to reprimand a brother officer, in these words: ‘Our profession is the chastest of all; even the shadow of a fault tarnishes the luster of our finest achievements.’
    “ The court in the present case has found the accused guilty of making certain false statements to the Secretary of War for the purpose of deceiving that officer. The President, as commander in chief of the army, should not concede that this offense is one either trivial in its nature or against good order and military discipline alone, nor as (in any sense of the words) other than as an offense ‘unbecoming an officer and a gentleman.’ If the evidence before the court-martial does not establish the facts in question beyond a reasonable doubt (upon which no opinion is here intended to be expressed) then General Swaim is clearly entitled to an acquittal upon this branch of the case. If, on the other hand, the evidence does establish these facts, then he is clearly shown to have committed an offense ‘unbecoming an officer and a gentleman.’
    “In 1851 Brevet Brigadier-General George Talcott, at the head of the Ordnance Bureau in the War Department, was tried by a court-martial upon three charges, the third being a charge of ‘conduct unbecoming an officer aud a gentleman.’ Under this charge the specifications set forth, inter alia, the fact that the accused had made a written report and also verbal statements to the Secretary of War in regard to a certain transaction which ‘ were false in fact and intent, and were made with designs to deceive the said Secretary of War.’ This was the burden of the charge. The accused was found guilty, sentenced to be dismissed the service, and was dismissed. 1 recall this case merely to indicate the fact that untruthful statements made by a high military officer to the official head of the War Department have not been regarded in the past — as I think they should not be regarded in the future — as any less of an offense than one ‘unbecoming an officer and a gentleman.’
    “I think the record in the case of Brigadier-General David G. Swaim, U. S. A., may with propriety be referred back to the court-martial, with suggestions in the line above indicated, for further consideration and revision.
    “I have not undertaken to criticise in detail the great mass of testimony presented by the record in this case nor the propriety of the conclusions of the court as to the specifications established by it. Indeed it would be impracticable to do so intelligently without devoting many weeks’ time to the examination to more than thirty volumes of the manuscript record. Moreover, the court which heard the witnesses was best qualified to scrutinize and balance their testimony, possessing as it did the advantage of personal contact and observation, so essential in reaching a just conclusion from lengthy and conflicting statements. "After the deliberate consideration given to the case by the court it is not unreasonable to assume that the specific facts found represent the truth of the case so far as it is ascertainable.
    “ If the President should decide to approve the findings and sentence of the court as they now stand, I see no objection to the mere form of sentence. Article 101 of section 1342 of the Eevised Statutes refers in express terms to suspension of pay, and it is apparently well settled (Digest Op. Judge Adv. Gen., 470) that such suspension of pay for a given period signifies its absolute forfeiture and not simply the temporary withholding thereof.
    “I am, sir, with great respect, '
    “Benjahin Harris Brewster,
    “ Attorney- General.
    
    “ The President.”
    The court, having reconsidered its previous action, adhered to its finding upon the first charge, remarking thereon as follows “The court, upon mature reconsideration, has not found the accused guilty of such degree of wrongful or deceitful conduct as to justify a finding of guilty of conduct unbecoming au officer and a gentleman, and has therefore respectfully adhered to its findings upon the first charge,” but adjudged the following sentence:
    “To be suspended from rank and duty for one year, with forfeiture of all pay for the same period, and at the end of that period to be reduced to the grade of judge-advocate with the rank of major in the Judge-Advocate-General’s Department.”
    The record of proceedings, having been submitted to the President, was again returned to the court for reasons set forth in the following indorsement placed thereon:
    Executive Mansion, February 14th, 1885. '
    
    “ The record in the foregoing case of Brigadier-General David G. Swaim, Judge-Advocate-General United States Army, is hereby again returned to the general court-martial before which the proceedings have been had for a reconsideration of the amended sentence as set forth in the proceedings had upon reconsideration of the original findings and sentence.
    “ It is apparent from the terms of the amended sentence that it was the intention of the court to award a punishment of greater severity and more nearly commensurate with the offenses of which the accused has been found guilty than was the penalty adjudged in the original proceedings; and if the terms of the amended sentence were such as could be legally Carried out, tbe purposes of tbe court in that regard would have been accomplished. Tbe provision, however, that tbe accused shall, after a suspension for tbe period of one year from rank and duty in tbe office now held by him, be placed in another office of lower rank in tbe department of which tbe office now held by him is a part, is one impossible of enforcement by tbe Executive alone. That office of lower rank can only be filled in tbe method pointed out by tbe Constitution, namely, nomination by tbe President and confirmation by tbe Senate, and then only in case of an existing vacancy. Tbe amended sentence, in effect, creates an office and fills it, thus at once embodying tbe exercise of legislative and executive functions, and tbe approving power of tbe. Senate.
    “ It is a necessary element of sentences of courts-martial that they shall, on approval of the appointing power, be capable of ■enforcement by tbe executive authority charged with that duty. So much of the amended sentence as relates to changing tbe accused from one office to another is not of that character. At tbe termination of tbe period of suspension indicated tbe accused could only be put into tbe office of a judge-advocate in tbe manner hereinbefore indicated, and by a new commission, which he might accept or decline; but if there should be no vacancy, be could not be put into it at all, and bis present office could nob be filled until after it should have been vacated.
    “ Tbe constitutional power of tbe Executive in filling vacancies can not be restricted to individuals; and while tbe 62d article of war authorizes tbe court to exercise its discretion in awarding punishment, tbe discretion exercised must at least be bounded by tbe possibility of tbe sentence proposed being-carried into effect without dependence on chance or change in tbe laws.
    “Chester A. Arthur.”
    Tbe court thereupon revoked its former sentence and adjudged as follows:
    “ To be suspended from rank and duty for twelve years and to forfeit one-half bis monthly pay every month for tbe same period.”
    Tbe record of proceedings having been submitted to tbe President, tbe following are bis orders indorsed thereon:
    “Executive Mansion, February 24,1885.
    
    “Tbe opinion of tbe President as to the proper consequence of tbe findings of fact made by tbe court in tbe within record has already been given, and no further comment will be made upon tbe final sentence than to say that it is difficult to understand bow tbe court could be willing to have tbe officer tried retained as a pensioner upon tbe Army register while it expressed its sense of bis unfitness to perform tbe duties of bis important office by tbe imposition of two different sentences, under either of which he would be deprived permanently of his functions. The idea that an office like that of Judge-Advocate-General should remain vacant in effect for twelve years, merely to save a part of its emoluments to its incumbent under such circumstances, would seem to come from an inversion of the proper relation of public offices and those holding them, and is an idea not suited to our institutions.
    
      u While holding the views now and heretofore expressed, it is-deemed to be for the public interest that the proceedings in this case be not without result, and therefore the proceedings, findings, and sentence in the foregoing case of Brigadier-General David G. Swaim, Judge-Advocate-General United States Army, are approved, and the sentence will be duly executed.
    “ Ohesteu A. Arthur.”
    And the court, upon the claimant’s request, finds the following additional facts:
    VII. A majority of the court-martial, as organized for the trial of claimant, was composed of colonels who were inferior in rank to him. A condition of peace existed at the time. The following were the general officers of the United States Army, with their stations:
    
      Officers who held the ran To of brigadier-general or higher rank in the U. S. Army on June SO, 1884, with their stations and status at that time as shown by the records of the Adjutant- General’s Office:
    
      
    
    
      VIII. The claimant challenged the competency of a member of the court to sit on the trial for the cause stated, that claimant had severely criticised, officially injured, and animadverted upon the conduct of such challenged member in official reports. The challenge to such member was overruled, and he sat upon the trial as the president of the court.
    IX. The judge advocate introduced and the court admitted a member of the bar to act as associate counsel to the judge advocate to assist in the prosecution of claimant before said court-martial without the sanction or authority of the convening officer of the court, and such person acted in all respects as the official judge, advocate in presenting the case for the prosecution.
    X. Oral and secondary evidence of an account was received for the prosecution, when the boohs of original entries were at hand and available for the purpose..
    XI. In the trial of claimant upon said charges and specifications set out in said general court-martial orders No. 19 the prosecution introduced evidence tending to charge and convict him of the crimes of receiving commutation of quarters and forage for horses to which he was not entitled, and that he signed false certificates in drawing said commutation money for quarters and in making requisition for the said forage.
    XII. Claimant was not permitted to show the bad character of the principal witness for the prosecution.
    XIII. The court-martial refused to hear the testimony of a material witness for the defense on the ground that such witness neither believed nor disbelieved in the existence of a supreme being; the testimony of such witness only being received in excluding him.
    XIV. The court-martial, having reached a finding and having thereupon sentenced claimant upon the charges promulgated in said general court-martial orders No. 19, and the reviewing officer having referred ... .lie court for trial another set of charges, alleging fraud and conduct unbecoming an officer and a gentleman, under the sixtieth and sixty-first articles of war, as promulgated in general court-martial orders No. 20 of 1885; and the court-martial having heard all the evidence for the prosecution therein (except an absent witness, but with a statement as to what such witness would testify to), thus making a prima facie case against claimant, and he not having present a defense, tbe reviewing authority returned the ease promulgated in said court-martial orders 19 to the court for reconsideration and a more severe sentence, with an opinion of the Attorney-General hereinbefore set forth, which proceedings were with closed doors, and of which claimant had no notice at the time.
    XY. One half of claimant’s pay and all his allowances are retained and withheld from him under and in pursuance of the third and last sentence adjudged against him, as hereinbefore set forth.
    
      The Claimant in pro per.
    The Constitution of the United States did not empower the President to appoint the court-martial for the trial of plaintiff. By section 8, article 1, of the Constitution, “ The Congress shall have power * * * to make rules for the government and regulation of the land and naval forces.” By section 2, article 2, “ The President shall be commander-in-chief of the Army and Navy of the United States.”
    Under the power to make rules, the Articles of War authorizing the appointment of courts-martial have been sanctioned. No division of this power is anywhere sanctioned by the Constitution or by any statute, and the seventy-second article of war read in the light of the provisions of the Constitution on the same subject being the maxim exprésalo unius est exelusio altirius into fall force and effect.
    Upon the authority of Winthrop’s Digest, 200,388, and Ives’s Military Law, 30, this court held in Maj. Itunklés Case (19 C. Cls. B., 396) that “the President may appoint a court-martial without the aid of statute, the power to convene them being an attribute of command; that he has exercised this power since the formation of the Government, notably in the cases of Gens. Hull, Wilkinson, and Gaines, tried in 1813-’16; that if the President did not exercise this power, a large number of officers and enlisted men could not be tried by court-martial.”
    The Secretary of War convened the court-martial in Maj. Bunkle’s case and hence the question did not properly arise, but the Supreme Court held in the same case (122 U. S. B., 555, 556) that the Secretary of War could not act for the President in a court-martial case, which probably covered all the points raised in the case, and so the judgment of this court in that case was reversed.
    If the Articles of War are deficient in scope, the remedy lies with Congress, not the President. Nor is it necessary that the President should exercise this power for the reasons given that justice could not otherwise be administered in a large number of cases of officers and enlisted men not under the command of a general commanding a department or army, as it is now and always has been the practice for the commanding general to appoint the court, or to send such caáes to a department commander for that purpose. Under the present Government the Army has always had a general to command it, and there was such a commander, in the person of Gen. Sheridan, at the time of plaintiff’s trial. Nor does the attribute of command confer the right, as the War Department refused to authorize a colonel commanding a department to appoint a general court-martial between 1874 and 1884, because the seventy-second article did not specify colonels as competent to do so. An American court-martial is the creature of statute law; if it has not statute law for its foundation it has no legal existence. When Congress enacted the seventy-second article of war it excluded all other methods of appointing general courts-martial for the trial of officers in time of peace. Bunkle’s Case (122 U. S. B., 555, 556); Kx parte Milligan (4 Wall., 121,139); Dynes v. Hoover (20 How., 65, 81); Keyes v. United States (109 U. S. B., 340); Hales v. Whitney (114 U. S. B., 575).
    Up to 1830 the President had no statutory power to appoint a general court-martial in any case, and the fact that a limited power was then conferred upon him and that a general power had been conferred upon him in the articles for the government of the Navy, proves that it was not intended that he should exercise greater authority in this respect over the Army than as embodied in the act of May 29,1830, now incorporated in the seventy-second article of war; and so tbe exception proves the rule.
    Historically considered the question leads to the same conclusion. At the separation of the colonies from England neither the king nor the commander of an army under him was empowered by the laws of England to appoint a general court-martial except under the provisions of the annual mutiny act. The first mutiny act, 1689, settled this point; and the crown derives its authority to this day on that subject solely through parliamentary sanction. The British Articles of War of 1765, in force at the declaration of our independence contained no authority to appoint general courts-martial; neither did our early Articles of War contain such authority, owing to the omis.sion of it from the British prototype, that power, as we have seen, having been derived from the mutiny act; and our Articles of War were amended in this respect by the act of 1777 and again in 1786, which last act repealed all prior authority on the subject of holding court-martial.
    At the adoption of the Constitution the provisions of the act of 1786 only were in force, and all the ephemeral and revolutionary powers exercised by Gen. Washington, whether by special or general resolves of Congress, together with the act of 1777, were repealed and discarded by the resolve of 1786. Gen. Washington never assumed to appoint a court-martial or to act upon the proceedings thereof, or to pardon or mitigate a sentence, of such a court except as authorized by Congress. (See Spark’s Writings of Washington, Yol. 3, introduction, pp. vm, ix. Ibid,., 5, p.236. See and compare resolves of Congress of April 14, and May 27,1777.)
    The reasons underlying the seventy-second article of war are manifest that the appointing officer of the court-martial shall stand indifferent to the parties before it; that an accuser or prosecutor shall not, directly or indirectly, be concerned in the trial, neither inbeinghisjudgenorin selecting the men who are to be his judges.
    Did the Constitution, or any statute, or the common law, empower the President to cause charges to be preferred against claimant and then order and direct the selection of the members, and appoint the court-martial for the trial, and finally review and approve the proceedings and judgment of such a court-martial? The court-martial was appointed by direction of the President, the order was signed by the Secretary of War, the charges were originated and formulated by the same authority. The prejudice of both these officials is marked throughout the proceedings, as will be seen from the face of genera] court-martial orders No. 19. To fix upon the commander who convened the court the character of accuser or prosecutor it is not essential that he should have signed the charges. When he himself initiated the charges out of a hostile animus toward tlie accused, or from a similar motive adopts and makes bis own a charge intitiated by another, he is to be deemed accuser and prosecutor. (16 Opp., 106; Digest Opinions Judge Adv. Gen., 54, 55.)
    The court-martial as organized for the trial was composed of five general officers and six colonels, the colonels being of inferior rank to plaintiff (article of war 79). This could have been avoided, as there were eighteen general officers available to select a court of thirteen, or not less than five, for the trial of plaintiff, as shown by the report of the Adjutant-General of the Army in evidence. The court will take judicial notice that a status of peace existed June 30, 1884, when the court-martial was appointed, and the detail of the colonels could have' been avoided. The seventy-ninth article carries with it a positive statutory right. It differs materially in this respect with the naval article on the same subject, supplemented by a naval regulation constituting the appointing officer the exclusive judge of the rank and membership of the court. (Mullen v. United States, 23 Cls. R., 34.)
    There is no similar army regulation interpreting or supplementing the seventy-ninth article.
    An officer sat on the court-martial and presided over its deliberations, over the objections of plaintiff, for the cause stated, that he severely criticised the official conduct of such objected member in official reports and who was thus presumably and as a consequence from the injury done him, full of malice, spite, and resentment against claimant. (Article of war 88.)
    It is laid down by military law writers that malice or hostile enmity expressed by word or deed as the challenged party having in any manner injured by the challenging party, and consequently cherishing revenge or bitterness against him, is one of the causes of challenge impossible to be overruled. (Kennedy, 21 Ed., 1825; O’Brien, 239; DeHart, 118.)
    Over the objection of the accused the court-martial on the motion of the judge-advocate admitted a citizen atttorney, styling him associate counsel to assist in the prosecution of plaintiff. This was done without the sanction or authority of the convening officer. The associate counsel was not sworn or affirmed, and he acted in the prosecution in all respects a judge-advocate of the court. (Article of war 74.)
    
      No person other than the official judge-advocate can act as such before a court-martial. (Digest Judge Adv. Gen’l 297; General Wilkinson’s case referred to in evidence, p. 96; Broolcs v. Adrnns, 11 Pick. Mass. B., p. 44.)
    The court-martial flagrantly violated the rules of evidence by receiving illegal and rejecting legal evidence detrimental to plaintiff.
    The duebill set out in the specifications was varied and metamorphosed into a mere memorandum of deposit, and evidence was received for the prosecution tending to show that the duebill never had any validity, but was a mere memorandum of deposit.
    Evidence of an oral agreement alleged to have been made at the time of making a note can not be permitted to vary, qualify, contradict, add to, or subtract from, the terms of the written contract. (Speeht v. Howard, 16 Wall., 564.)
    It was not claimed that there was fraud, accident, or mistake, in making or delivering the duebill, and the rule above quoted is the same in law as in equity. (Forsyth v. Kimball, 91 U. S. B., 294; 2 Story Equity, § 1531.)
    Over the objections of accused, copies of alleged original entries from books were introduced tending to charge set-offs to the duebill, when the alleged original entries were in hand under the control of the court. (Taylor v. Biggs, 1 Peters, 596; Greenleaf Ev., §§ 82, 84.)
    Claimant offered evidence tending to show the bad character of Bateman, the principal witness for the prosecution, which was rejected, and claimant produced a witness who was in the employ of Bateman & Co., who would testify that they instructed him to falsely change the prices in the purchase and sales of stocks; but upon a summary examination of the witness by the judge-advocate and president of the court, and having elicited from the witness that he neither believed nor disbelieved in the existence of a Supreme Being, the court ruled the witness incompetent to testify further. Witnesses can not be so dealt with. (1 Greenleaf, Ev., 370, note; Wharton, Grim. Ev., §396, note; United States v. White, 5 Crunch, Cir. Ot. B., 38; 5 Mason, 19.)
    The court-martial illegally restricted claimant from showing the nature of the reports of the frauds of Bateman & Co. that came to the knowledge of claimant on and after February 15,1884. Contrast this action of the court with the license accorded the prosecution in bringing before the court-martial false and malicious accusations not embraced in the charges; before the court, to the effect that he had received commutation for quarters to which he was not entitled, and that claimant had made false and fraudulent certificates, and these accusations were urged upon the attention of the court by the judge-advocate in the closing argument for the prosecution, in doing which the judge-advocate clearly violated his duty as prescribed by the ninetieth article of war.
    Where the accused has been denied material evidence, or otherwise prejudiced in his defense, the proceedings of a court-martial will be disapproved. Courts-mártial are bound by the common law of the land in regard to the rules of evidence as well as other rules of law, so far as applicable to the manner of proceeding. (3 Greenleaf, Ev., §469; 11 Opp. Atty. Geni., p. 344.)
    The findings of' the court-martial to specifications 1 and 3, charge first, do not show the commission of any military offense under the sixty-second article of war, and the court-martial had no jurisdiction to hear and determine the matters set out in such findings, being matters of accounting merely.
    When the court-martial came to decide upon the state of the account, instead of determining what the evidence showed that to be they wholly omit to find anything in that regard, and simply find that the plaintiff had subsequently received a statement of his account from Bateman & Go., showing that the $5,000 had been credited in his stock account and that there was then due him only a balance of $33.89, which is a finding of no facts except the fact that an account of this description had been delivered to plaintiff, but nothing is found as to the truth, accuracy, or falsity of the account so rendered, and while the specfication was careful in charging fraud in respect to the attempted collection, yet this is stricken out and the court refused to find any purpose to commit fraud. Neither is there any finding that plaintiff assented to the carrying of the money represented by the duebill into a general account, and that the statement rendered was accepted and acquiesced in showing that the sum of $5,000 was reduced to $33.89. The duebill was made July 15, 1882, and the assignment thereof was made February 24, 1884, and was thus nineteen months overdue, and hence all defenses Bateman & Co. might have against the duebill were available. Under section 810 Revised Statutes of the District of Columbia, allowing mutual debts of dissimalar kinds to be set off, Bate-man & Co. were, by the assignment and transfer of the due-bill deprived of no right of set off or other defense. (5 Pickering,' Reports, 311,316, 317; 10 Metcalf, 7-10; 1 Metcalf, 369-375; 1 Crunch, Cir. Ct. R., 586; 1 Cray, 89.)
    The third specification is all personal to the Secretary of War, in the matter of the same facts set out in the first specification, by alleging that plaintiff in his indorsement, set out in this third specification, was evasive, uncandid, and calculated and intended to deceive the Secretary of War in four particulars:
    (1) In stating that he had- a bank account with Bateman & Co., and besides loaned them $5,000, whereas he had at that time but one account, had not loaned them $5,000, but had deposited what purported to be that amount, but which was actually but $4,000. Plaintiff fixed no point of time in his indorsement when he had the bank account with the firm, but Bateman in his letter, set out in the specification, admits that claimant deposited the full sum of $5,000, for which the due-bill was given which shows on its face the existence of a loan or deposit, it is immaterial which; but what business was it of the Secretary of War whether the money claimant had with this firm was a loan or a deposit, or whether the exact sum was $5,000, $4,000, $100,000, or 1 cent?
    (2) Insufficiently and incorrectly describing the duebill in said indorsement by the omission of the words “Ten per cent, interest 6 per cent.”
    That no intention existed to deceive the Secretary of War or to conceal anything from him by the omission of these words is apparent from the fact that the original duebill was at the time of making the indorsement in the hands of third parties (as alleged in the sixth particular to this specification, as brought before the court-martial). But as the Secretary was not adjusting the differences between the parties, it is impossible to comprehend how he could in any manner be deceived by the omission of these words, and the Secretary well knew from the history of the case as developed in the court of inquiry that these words bad no bearing on tbe rights of the parties to the duebill. The fourth, fifth, and part of the first particulars are founded on manifest misquotation and misrepresentation of the language used in plaintiff’s indorsement. He did not say he had personally presented the due-bill for payment, or that he had personally endeavored to have the duebill referred to arbitration, nor did he fix any point of time when he had a bank account with said firm. Comparing plaintiff’s indorsement with the particulars referred to, it is plain the particulars are themselves evasive and false, rather than what is contained in plaintiff’s indorsement.
    In what possible manner could claimant’s private business transactions under these circumstances affect the discipline of the service. It has been ruled by the War Department that even manslaughter, larceny, or burglary, committed against a citizen without a military post, or where the party or property is not under military control, protection, or charge, does not constitute the offense of conduct to the prejudice of good order and military discipline. How then can such conduct as herein set forth be held within that charge? (Digest of Opinions, Atty. Gen., p. 43.)
    On one finding of facts, and with the evidence for the prosecution in another subsequent trial of plaintiff, on changes of violation of the sixtieth and sixty-first articles of war spread before the court, the reviewing officer returned the proceedings with an opinion of the Attorney-General denunciatory of plaintiff (which was received .with closed doors against plaintiff). The reviewing officer urged a finding of guilty of conduct unbecoming an officer and a gentleman and the dismissal of plaintiff, and the reviewing officer twice returned the proceedings for reconsideration and a more severe sentence. No article of war or other statute or regulation or the practice of courts-martial authorizes or empowers a reviewing officer to direct a court-martial to resentence an accused person before it .when the first sentence is regular on its face and is not forbidden by nor does not transcend the statutory powers of the court. The first sentence pronounced by the court-martial in this case was such a sentence, except for the illegal and void nature of the proceedings by which it was reached, which were not examined by the Attorney-General, as it was his duty to do, as he was acting for the Judge-Advocate-General in advising the President, and the Acting Judge-Advocate-General has not to this day examined the proceedings, as required by law. A court cannot direct a jury to find a verdict of guilty even when the facts are admitted beyond dispute. (United States v. Taylor, 3 McCray, 500.) And it is submitted that the principles declared in ex parte Lange (18 Wall., 163) are applicable to this case, and render the second and third sentences void.
    The action of the reviewing officer in causing or permitting a trial of the second set of charges to be proceeded with before the final determination of the first case and the submission of the false and discolored views of the Attorney-General to the court with closed doors were tricks and artifices to improperly convict plaintiff. There can be no other conclusion but that both cases were thus tried together in order to lend the weight of the second prosecution to the first casé to secure the conviction and dismissal of claimant at all hazards. See Wharton’s Crim. PL and Pr., §§ 828, 850, 851, 852.
    Under the third and last sentence pronounced by the court half of plaintiffs pay and all his allowances are withheld from him.
    The rule heretofore followed by the War Department is that a sentence of suspension of am officer from rank and pay does not affect allowances which are no part of his pay. (Judge Adv. Genl’s. Digest, p. 470; 6 Op. Atty. Gen’l., p. 200 )
    A suspended officer is supposed to be ready to perform duty at all times when called upon, and to enable him to do this his allowances should not be with held where the terms of the sentence do not require the same.
    
      Mr. Henry M. Foote (with whom was Mr. Assista/nt Attorney-General Cotton), for the defendants.
    The doctrine that the judgments of courts having jurisdiction of the subject-matter until reversed are conclusive and binding in every other court is too well settled to require the citation of authorities. Flliott v. Piersol (1st Peters, 328, 340); Wilcox v. Jaelcson (13 Peters, 498,511); Watlcms (3 Peters, 193, 202); Dynes v. Hoover (20 Howard, 82); Bied (100 U. S. B., 23).
    Winthrop, in his Digest of the Opinions of the Judge-Advocate-General, p. 200, states the rule on this subject as follows:
    
      
      “ Courts-martial are no part of the judiciary of the United States, but simply instrumentalities of the Executive power, * * * But, though transient and summary, their judgments when rendered upon subjects within their limited jurisdiction are as legal and valid as those of any other tribunal, nor are the same subject to be appealed from, set aside, or reviewed by the courts of the United States or of any State.”
    And see authorities cited in support of this doctrine in notes. And see also Ives on Military Law, p. 37; Keys v. The United States (109 U. S. B., 336-340).
    Considerable emphasis was laid upon the proposition by counsel in the argument of this case before the court, and claimant himself has, with a great deal of ingenuity, reiterated it here, that, inasmuch as the order convening the court was not promulgated by the commanding military officer of claimant’s department and it appearing that such officer was not his accuser, therefore the President had no authority to organize the court.
    I might be relieved from discussing this subject by relying upon the case of Bunlde v. The United States (19 O. Gis. B., p. 409), where this very question was determined, Chief Justice Drake delivering the opinion of the court. But, inasmuch as claimant, notwithstanding it, seeks to have a reconsideration of this question, I will refer to some authorities upon the subject not mentioned in the opinion. Claimant, in the presentation of his views upon this question, seems to dwell at considerable length upon the various acts of the Parliament of Great Britain prior to the American Bevolution in support of the proposition that the English sovereign, independent of a grant of power, had no authority to appoint courts-martial. This contention, if it were to be given any consideration, would indeed be limited to a very narrow application, for it must not be forgotten that during the early days of the colonies a different system prevailed than that declared in the first mutiny act of the English Parliament.
    As early as 1777 the continental general commanding in either of the American States was invested with authority to appoint these courts, and in 1786 this authority was granted to the general officer commanding the troops. Thus the state of legislation remained until after the adoption of the Constitution.
    We are, therefore, under this system of jurisprudence, separated as far both, in theory and practice from that of the early English system as the changed relations and conditions of our people would seem to dictate. (De Hart, p. 14; lyes on Military Law, p. 34; Winthrop on Military Law, p. 11; the same in Digest of the Opinions of the Judge-Advocate-General, p. 200.)
    These authorities demonstrate that our present military code of procedure is not borrowed from the already obsolete provisions of the British system, but rests entirely upon conditions originating in colonial necessity, and which were subsequently incorporated into acts of Congress under the provisions of our Constitution.
    I will, therefore, call the attention of the court to the constitutional and legislative provisions of the law as they existed at the time claimant was put upon his trial before this general court-martial, for it must be borne in mind that the order convening it was general and did not apply exclusively to the claimant.
    The Constitution of the United States provides, article 2, section 2, “that the President shall be commander-in-chief of the Army and Havy of the United States, and of the militia of the several States when called into the actual service of the United States.”
    The Constitution also provides, that the Congress shall have power to make rules for the government of the land and naval forces.” (Article 1, section 8, paragraph 14.)
    On the 10th day of April, 1806, an act was approved establishing rules and articles for the government of the armies of the United States (2 Stat. at Large, 369, ch. 20). It provides—
    “ That any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial whenever necessary.” * * *
    Section 1342, Bevised Statutes (article 72), repealed and modified the act of 1806 as follows:
    “ Section 1. Whenever a general officer commanding an army, or a colonel commanding a separate department, shall be the accuser or prosecutor of any officer of the Army of the United States under his command, the general court-martial for the trial of such offender shall be appointed by the President of the United States.
    “ Sec. 2. The proceedings and sentence of the said court shall be sent directly to the Secretary of War, to be by him laid before the President for Ms confirmation or approval or orders in the case.
    “ Section 3 is tbe repealing clause of so much of the act of 1806 as is repugnant hereto. It is claimant’s contention, as before stated, that neither of these provisions authorized the President to appoint the court-martial which proceeded to judgment against him.”
    Winthrop on Military Law, pp. 61, 62, says :
    “ But as the law is now generally held and in the opinion of the author, the President is invested with a general and discretionary power to order courts-martial for the Army, by virtue of his constitutional capacity as commander-in-chief, irrespectively and independently of any article of war or other legislation of Congress.”
    TMs same doctrine is held in the same author’s digest of the opinions of the Judge-Advocate-General pp. 53, 388. In the last reference attention is called to note wherein several instances of the exercise of this authority are given, and also where this authority was affirmed by the Judiciary Committee of the Senate, in Beport No. 868, March 3, 1879, Forty-fifth Congress, third session. (De Hart, on courts-martial, p. 5 ; Ives, on military law, p. 30.)
    In the case of Maj. Runlde (15 Opp. Atty. Gen., beginning on page 297, note) this subject of authority is carefully considered and many cases are referred to, all of wMch sustain the doctrine here stated.
    I desire also to call attention to Beport No. 1337, of the Judiciary Committee of the Senate, Forty-eighth Congress, second session, to which was referred the resolution of inquiry, i. <?., Whether any legislation is required and if so what, in regard to the appointment of courts-martial and the regulation of proceedings and practice in trials before such courts in time of peace; and whether, under existing laws, an officer may be tried before a court-martial appointed by the President in cases where the commander of the accused officer to be tried is not the accuser.”
    This committee, after a full investigation of the authorities wMch are cited in the report, were unanimous in their opinion (with one exception) “ that an officer may be tried before a court-martial appointed by the President in cases where the commander of the accused officer is not the accuser;” and when the distinguished ability of the Senators who have at-tacbed tlieir signatures to this report is considered the same is entitled to much weight, in view of the long line of decisions in harmony therewith.
    It is therefore submitted, in view of the authorities cited, that the President of the United States was authorized to issue the order convening the court-martial and that the court had jurisdiction of the claimant.
    I have set forth in detail the nature and character of the charge upon which the accused was tried by the court. The findings of the court and sentence are also stated, and likewise the approval thereof by the President. The record also shows that the accused was present at the trial and was represented by counsel.
    As I have undertaken by the citation of numerous authorities to demonstrate that as to the proceedings and conclusion of the court-martial legally constituted in matters over which it had jurisdiction, the same could not be inquired into by this court, so also I further contend that it is not its province to consider whether or not the charges for which the accused was put upon his trial are properly included within the provisions of the sixty-second article of war. That article contains no express enumeration of offenses for which an officer of the Army may be tried and which would afford the court an opportunity to determine whether or not the accused had been brought under any of its provisions. The phraseology all crimes not capital, and all disorders and neglects, to the prejudice of good order and military discipline,” comprehend a'vast number of offenses afid neglects, any of which in the judgment and discretion of the court-martial might be to the prejudice of good order and military discipline. This question could only be determined by the court organized for the purpose of making the inquiry. Its judgment upon this question is as conclusive upon the subject as the judgment of any court over a similar subject would be if attacked only in a collateral proceeding. If it were competent for this court to determine what were the cognizable offenses under this article, then most certainly it would require the exercise of an authority not recognized even in a court of appellate jurisdiction. And the court, instead of confining its inquiry to the sole question of whether or not there .had been a legally organized tribunal which had proceeded in its judgment and discretion to determine its jurisdiction and pronounce judgment, would usurp its functions and enter the domain of authority not contemplated by the statute.
   Nott, J.,

delivered the opinion of the court:

The military trial which is now brought before the' court by this civil action attracted great attention at the time, both from the high rank and prominent official position of the accused and the unusual if not novel character of the proceedings by which the final result, the sentence of the court-martial, was reached. We have considered the present case with deliberation commensurate with its great importance to the claimant and to the administration of military justice, and now announce the conclusions of this court.

When a person enters the military service, whether as officer or private, he surrenders his personal rights and submits himself to a code of laws and obligations wholly inconsistent with the principles which measure our constitutional rights. He also submits himself to the administration of justice by military tribunals whose power extends to fines and forfeitures, to the deprivation of rank and pay, to imprisonment, and even to punishment by death.

The proceedings of these military tribunals can not be reviewed in the civil courts. No writ of error will lie to bring up the rulings of a court-martial. Even in the trial of a capital offense the various steps by which the end is reached can not be made the subject of judicial review. The only tribunal that can pass upon alleged errors and mistakes is the commanding officer, charged with that responsibility, who, in cases like the present, must be the commander-in-chief, that is to say, the President. When the record of a court-martial comes into a civil court in a collateral way, the only questions which can be considered may be reduced to these three: First, was the court-martial legally constituted ; second, did it have jurisdiction of the case; third, was the sentence duly approved and authorized by law.

Undoubtedly errors are committed by courts-martial which a civil tribunal would regard as sufficient ground for a reversal for their judgments, if it were sitting as an, appellate court. But there is always this radical difference between an appellate court sitting for the correction of errors and a civil court into which the record of a court-martial is collateral — in the former there is not a failure of justice; the appellate court may reverse a judgment or prescribe another or award a new trial; in the latter, the court must either give full effect to the sentence or pronounce it wholly void.

Among the objections which are now taken to the proceedings of the court-martial are the following:

That officers inferior in rank to the claimant were appointed on the court when this could have been avoided.

That officers of known hostility to the claimant were selected and appointed as members of the court.

That a person was permitted to act as judge-advocate who was not appciinted or sworn as such.

That the court flagrantly violated the laws of evidence on the trial in a manner detrimental to the claimant.

That while the court-martial was in the midst of another trial in which the claimant was the accused, and while the evidence against him only was before the court, the court was required to reconsider this case, and under such prejudice to inflict another sentence.

If this court were sitting as an appellate tribunal in review of the proceedings of the court-martial these objections might be good assignments of error; but it is the opinion of the court that such errors can not be reviewed collaterally, and that these do not affect the constitution of the court-martial, or its jurisdiction of the case before it, or the legality of the sentence which it pronounced.

There are, however, other objections raised which are more difficult in determination, and the first of those goes to the constitution of the court.

It is contended that “ there was no law authorizing the appointment of the court-martial;” that is to say, “ the appointment of a general court-martial” by the President “in time of peace for the trial of a general officer.” The order convening the court runs in these words:

“War Department, . Washington, June 30, 1884.
“ By direction of the President a general court-martial is appointed to meet in this city at 11 o’clock a. m. on Wednesday, the 10th day of September, 1884, or as soon thereafter as practicable, for the trial of such persons as may be brought before it.” ■ ' ' '

Then follows tbé detail of the members of the court, and the order is signed by the Secretary of War.

Before this the President had ordered a court of inquiry to investigate the matters alleged against the claimant and after the coming in of the report the Secretary of War had ordered the recorder of the court of inquiry to prepare charges and specifications against the accused. Later the claimant was placed under arrest “by direction of the President” and ordered to report in person before the court-martial for trial. Upon this record the claimant contends that the charges were, in effect, preferred by the President; that the court was appointed and its members selected by the President; that the sentence was approved by the President, and that a court-martial thus instituted was unauthorized by law and its sentence wholly void.

But the question immediately to be considered does not extend to all of these official acts, and is indeed no broader than this, whether the President has authority to order a court-martial in any other case than the single instance prescribed by the seventy-second article of war. This article at that time was in these words:

“Any general officer commanding the Army of the United States, a separate army, or a separate department, shall be competent to appoint a general court-martial either in time of peace or in time of war. But when any such commander is the accuser or prosecutor of any officer under his command the court shall be appointed by the President, and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President for his approval or orders in the case.” (Bev. Stat., § 1342, Art. 72.)

The contention of the claimant is that the President has no inherent power to appoint courts-martial; that the commander-in-chief of the Continental forces (which is a case cited by writers who maintain the contrary) did not assume to appoint such courts until expressly authorized by the Continental Congress ; that the power exercised by the Crown at the time of the adoption of the Constitution, which, it has been supposed, was recognized by the framers of the Constitution when they expressly declared that the President shall be commander-in-chief of the land and naval forces, was not a power inherent or constitutional, an attribute of executive sovereignty, but was in fact derived from the Mutiny Acts and other statutes; and that an. American court-inartial is tbe creature of statute law, and all other methods of appointing general courts-martial are in effect excluded by the enactment of the methods provided by the seventy-second article of war. This position is fortified by much historical research and an elaborate and able argument.

Whether the power to order or appoint courts-martial is an inherent attribute of the President as commander in chief is, in the present condition of our laws, an abstract question which no court is at liberty to decide. An inherent attribute •of an office established by the Constitution must exist without statutory authority, and can not be taken away by statutory authority. If Congress by some legislative inadvertence should abolish all laws relating to courts-martial, without enacting others, there would then be a question whether the President could convene them as a necessary incident of his power of command and of his authority to maintain military discipline, on which the power to command rests. But no such condition of things now exists. Military offenses and their punishments are defined or regulated by statute, and jurisdiction concerning them is conferred upon these military tribunals. The practical and immediate question before the court is whether in the present condition of the law the President had authority to convene this general court-martial to try this officer upon the charges actually preferred against him.

As has been said, the position of the claimant is that the President had power to appoint a court-martial only in the single instance named in the seventy-second article, as it then stood; and the Lieutenant-General (under whose immediate ' command the claimant was) not being his “ accuser or prosecutor,” a case had not arisen in which the President could so act. An elementary writer has also gone so far as to say:

“Congress has the exclusive power of constituting military courts; it can declare how these courts are to be organized, their jurisdiction, by whom, aud in what manner they are to be ordered, of whom they shall consist, their forms of proceeding; in fine, Congress has full and absolute power in all things pertaining to military tribunals, and the President can in no way interfere with matters relating to these tribunals except so far as he is expressly authorized.” (O’Brien on American Military Law.)

It may be historically true that the commander in chief during-the Revolution ascribed his power to order courts-martial directly to the Continental Congress; and it may also be true that at the time of the adoption of the Constitution the annual consent of Parliament to the existence of a standing army was conditioned upon statutory provisions relating to such military tribunals, though upon these historical questions the court expresses no opinion; but nevertheless there remains the significant fact in our military system that the President is always the commander in chief. Congress may increase the Army, or reduce the Army, or abolish it altogether; but so long as we have a military force Congress can not take away from the President the supreme command. It is true that the Constitution has conferred upon Congress the exclusive power “to make rules for the government and regulation of the land and naval forces;” but the two powers are distinct; neither can trench upon the other; the President can not, under the disguise of military orders, evade the legislative regulations by which he in common with the Army must be governed; and Congress can not in the disguise of “rules for the government” of the Army impair the authority of the President as commander in chief.

It seems evident, then, to the court that as courts-martial are expressly authorized by law, and the authority to convene them is expressly granted to military officers, this power is necessarily vested in the President by statute, though it may not be inherent in his office. A military officer can not be invested with greater authority by Congress than the commander in chief and a power of command devolved by statute on an officer of the Army or Navy is necessarily shared by the President. The power to command depends upon discipline, and discipline depends upon the power to punish; and the power to punish can only be exercised in time of peace through the medium of a military tribunal. If the President has no authority in matters pertaining to military tribunals unless it be “expressly” granted by Congress, then Congress, by the simple expedient of exclusively granting the authority to appoint courts-martial and approve sentences to a few officers of the Army and tacitly ignoring the President, could practically defeat the express declaration of the Constitution and strip the office of commander in chief of all real powers of command. .

The court cannot ascribe any such purpose to the legislation of Congress. Indeed, it seems evident to the court that if the seventy-second article was enacted with the intent that the President should exercise no authority except in the single instance where it is withheld from the commanding officers and exclusively devolved on him, it would be necessary to ' ascribe an absurd purpose to this legislative enactment, viz: That the intent of the statute was that the General of the Army and the Lieutenant-General should be exempt from punishment. If, for illustration, in 1884 the Lieutenant-General had stood in the place of the Judge-Advocate-General, how could he have been court-martialed? He certainly could not have appointed his own court-martial and ordered himself before it. A general commanding a militay department could not have done so, because the Lieutenant-General was not in his department or under his command. The President could nothave appointed the court because the seventy-second article only requires, or, if it be preferred, authorizes him to do so in those cases where a “general officer commanding the Army of the United States, a separate army, or a separate department,” is “ the accuser or prosecutor of any officer under his command.” The Lieutenant-General, therefore, would have been exempt from punishment so long as punishment depended upon a trial by court-martial.

It also appears by the first Articles of .War enacted after the adoption of the Constitution, those of 1806 (Act 10th April, 1806, 2 Stat L., p. 359, art. 65), that while general officers commanding an army or colonels commanding a department were authorized to appoint courts-martial, no provision whatever was made for courts to try these commanding officers. Itis incredible that Congress intended that such officers should be exempt from trial by court-martial; and as the same statute (sec. 3) declared void the preconstitutional articles of war which placed this power exclusively in “the general officer commanding the troops,” it seems to 'the court manifest that Congress supposed that the Constitution supplied the need of an express statutory authority to the commander in chief. Since the earliest legislation of our Government it has undoubtedly been understood and intended that whatever powers were granted to general officers in regard to courts-martial were at the same time granted and intended to be shared by the President.

The legislative history of courts-martial renders the legislative intent still clearer.

At the time of the adoption of the Constitution, the Articles of War In force were those of May 31, 1786. They provided that “ general courts-martial shall be ordered as often as the case may require by the general officer commanding the troops.”

“An act to recognize and to adapt to the Constitution of the United States the establishment of the troops raised under the resolves of the United States in Congress assembled, and for other purposes therein mentioned,” is the first statute establishing rules for the government of the Army after the adoqition of the Constitution. It provides:

“Sec. 4 And be it further enacted, That the said troops shall be governed by the Eules and Articles of War which have been established by the United States in Congress assembled, or by such rules and articles of war as may hereafter by law be established.” (Aet September 29,1789, 1 Stat. L., p. 95.)
“ An act for regulating the military establishment of the United States,” passed a few months later, is to the same effect:
“Sec. 13. And be it further enacted, That the commissioned officers, noncommissioned officers, privates, and musicians aforesaid shall be governed by the Eules and Articles of War which have been established by the United States in Congress assembled, as far as the same may be applicable to the Constitution of the United Stutes, or by such rules and articles as may hereafter by law be established.” (Aet May 26, 1790,1 Stat. L., p. 113.)
“ An act for establishing rules and articles for the government of the armies of the United States,” contains the first Articles of War framed after the adoption of the Constitution, and the article authorizing courts-martial is in these words;
“Article 65.' Any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial whenever necessary.” (Aet April 10,1806, 2 Stat. L., p. 359.)

Not until 1830 did the President come into a statute relating to courts-martial, and the enactment is plainly restrictive of the preceding legislation — it is to limit the authority of commanding officers — not to confer power upon the President:

“ An act to alter and amend the sixty-fifth article,” &c.: Be it enacted, That whenever a general officer commanding an army, or a colonel commanding a separate department, shall be the accuser or prosecutor of any officer in the Army of the United States under his command, the general court-martial for the trial of such officer shall be appointed by the President of the United States.” (Act May 29, 1830, 4 Stat. L., p. 417, sec. 10

The foregoing statutes were gathered together by the Bevised Statutes, but with some changes in substances, andformed the article before quoted under which the President acted in this case. Finally, the act of July, 1884, carried the article back to its original purpose and left it as follows:

" Art. 72. Any general officer commanding an army, a territorial division, or a department, or colonel commanding a separate department, may appoint general courts-martial whenever necessary. But when any such commander is the accuser or prosecutor of any officer under his command the court shall be appointed bythePresident; and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President for his approval or orders in the case.” {Act July 5,1884, 23 Stat. L., p. 121.)

It is said that courts-martial are the creatures of statute law. But so also are regiments. There can be no standing army without statutory authority. Congress may place the com-, mand of a regiment in a colonel, a lieutenant-colonel, a major, or any other officer; but when Congress so enact they, without words to that effect, likewise place the command in the Commander-in-Chief. His name is to be understood as written in every statute which confers upon a military officer military authority.

We come now to a more difficult part of the case — the question whether the sentence of this court-martial was authorized by law.

The charge against the claimant was “ conduct unbecoming an officer and a gentleman;” and the charge rested on the averment that the claimant had defrauded or attempted or intended to defraud a firm of private bankers in Washington, doing business in the name of Bateman & Co. The specifications are long, containing much detail and matter that under ordinary rules of pleading in civil suits would be deemed argumentative and inferential; but the question of guilty or not guilty comes back to the fraud or attempted fraud upon Bate-man & Co. If no fraud was committed, or attempted or intended to be committed, there was no ground primarily for the charge. The matter was brought before the Secretary of War by a letter from one of the firm, in which he says: “ It becomes my duty to prefer charges against Brig. Geni D. G. Swaim, at the head of the Bureau of Military Justice of the United States Army, for fraudf etc. “ I stand ready to prove that the said D. G. Swaim has committed a fraud, etc. “I am further ready to prove the said D. G. Swaim assisted to negotiate with this firm army pay vouchers which he knew to be fraudulent,” etc.

As to'this last charge, assisting to negotiate army pay vouchers which he knew to be fraudulent, it is now virtually out of the case, for upon it the claimant was found not guilty.

When these charges of Bateman were laid before the Secretary of War he referred the communication to- the claimant for explanation. The last charge certainly was a serious one, and being connected with a public scandal highly prejudicial to the honor of the Army, merited the closest scrutiny of the Secretary of War. The answer of the claimant to it was one which might have been satisfactory to one person and not to another. It briefly narrates the claimant’s part in the transactions of the delinquent officer; it disavows in substance any part in the fraud, but it concedes that the officer came to the claimant to procure an advance of “several months’pay on his account,” and that he, the claimant, gave him a letter of introduction to Bateman & Go., “in a friendly way.” It does not give the name of ati officer who was a witness of the claimant’s part in the transaction, nor call for the production of the letter which he gave, nor set forth an explicit denial of the charge, nor demand an investigation, if his explanation should not be satisfactory to the Secretary of War. Moreover, the charges of, Bateman, dated the 16th April, 1884, were published by him in the newspapers of that same day, and the claimant, instead of bringing, an action of libel against him or otherwise resenting the infamous charges which had been both made and published, immediately sought him, and effected a settlement on the day after their publication, and Bateman at the same time, April 17, sent a second communication to the Secretary of War, in which he said:

“1411 F Street, Bateman & Co., Bankers,
“Washington, I). G., April 17,1884.
“To tie Hon. Secretary oe War:
“Dear Sir: Tlie suit against our firm, on the duebill mentioned in my charges of yesterday against General D. G-. Swaim, having been withdrawn and the differences between General Swaim and myself satisfactorily settled, I hereby withdraw the charges contained in my letter of April 16th against said General D. G. Swaim, he claiming they were made under a misapprehension of facts, which I concede.
“Very truly, yours,
“A. E. Bateman.”

The Secretary of War is fully justified, in the opinion of the court, in bringing the matter to the personal attention of the President, if only because of the peculiar position of the accused as Judge-Advocate-General of the Army; and the President was fully justified in ordering it to be investigated by a court of inquiry, and upon the report of that court in ordering charges to be preferred, and the claimant to be tried by court-martial. It was possible that Bateman & Co., and the claimant by mutual explanations could clear up a business misunderstand: ing and in good faith arrived at a conclusion not discreditable to either; but it was not possible that a settlement of their business differences could efface from the records of the War Department the averment that Bateman “was ready to prove” that the Judge-Advocate-General had assisted in negotiating vouchers “which he knew to be fraudulent.”

Nevertheless, with this last charge taken out of the case by the acquittal of the accused, it must be remembered that the serious offense of conduct unbecoming an officer and a gentleman depended upon the question of a fraud perpetrated or attempted upon Bateman & Co. by the claimant., The specifications do indeed aver that his reply to the Secretary of War was “ evasive, uncandid, and false, and calculated and intended to deceive the Secretary of War.” But the falsity of the reply depended upon the fraud charged in the first specification. If there was a fraud practiced upon Bateman & Co., then the reply was false; if there was no fraud practiced, there was little or nothing to be false about.

It is manifest that the court-martial intended to find and found that no fraud had been practiced or attempted, and when that conclusion was reached the charge of conduct unbecoming an officer and a gentleman fell, and upon it tbe court properly-found tbe accused not guilty. But as in criminal law a jury may convict tbe prisoner of a lesser offense of tbe same nature than that charged in tbe indictment, as of manslaughter where tbe indictment is for murder, so in military law a court-martial may find the accused guilty of a lesser offense than tbe principal charge, if it be covered by and be within tbe scope of tbe specifications. Accordingly in this case tbecourt found tbe accused guilty of many acts allegedinthe specifications and formulated them under tbe “Charge, conduct to tbe prejudice of good order and military discipline, in violation of tbe sixty-second article of war.”

It is always embarrassing to a civil court when it must leave its own field of statutes and judicial authorities, and found a judgment upon tbe unwritten codes of military ethics and military administration. In tbe recent case of Fletcher (26 C. Cls. R., 541, 562), where tbe court was obliged to pass upon tbe legality of a sentence for conduct unbecoming an officer and a gentleman, resting upon a series of acts which neither civil nor criminal jurisprudence would have stigmatized as fraudulent, .it was said:

“It is bard for tbe trained lawyer to conceive of an indictment or declaration which should allege that tbe defendant defrauded A or B by refusing toreturn to him tbe money which be bad borrowed from him. Our legal training, tbe legal habit of mind, as it is termed, inclines us to dissociate punishment from acts which tbe law does not define as offenses. As one of our greatest writers of fiction puts it, with metaphysical fitness and accurate sarcasm, as she describes one of her legal characters, “ His moral horizon was limited by the civil code of Tennessee.” We learnt as law students in Blackstone that there are things which are malum in se and, in addition to them, things which are merely malum ¡prohibitum; but unhappily in the affairs of real life we find that there are many things which are malum in se without likewise being malum ¡prohibitum. In military life there is a higher code termed honor, which" holds its societyto stricter accountability; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code.”

So in the present case, the court is obliged to pass upon acts which transgress no statute or rule of the common law, an d yet which may constitute the military offense of conduct to the prejudice of good order and military discipline. The Articles of War do not define either of these offenses, nor can a court of law. What is conduct unbecoming an officer and a gentleman, or what is conduct to the prejudice of good order and military .discipline is beyond the bounds of exact formula, and must depend more or less upon the circumstances and peculiarities of each case. To slap a woman in the face is no more violation of the law than to slap a man in the face. Tet under the code of military ethics, to slap a woman in the face might be regarded as a cowardly act and be classified as conduct unbecoming an officer and a gentleman. To commit an assault on any person is an offense at law; but under the other code, not to commit an assault, as where a ruffian was insulting an unprotected girl, might be deemed conduct unbecoming an officer and a gentleman. The cases which involve conduct to the prejudice of good order and military discipline are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our in ate sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties. All that a civil court can do in these collateral cases is to look into the record and see that the wide discretion which the Articles of War' give to a court-martial and the commanding officer who approves the sentence hasnotbeenabused;that the sentence does not rest on supposititious or frivolous pretexts; that the case presents facts which a body of experienced, intelligent, impartial, military experts may reasonably hold, in the exercise of a sound discretion, to be prejudicial to good" order and military discipline. When such facts appear, the civil court must concede that they constitute the offense embodied in the charge.

On looking into the record in the present case we find legal references and conclusions which do not seem to be warranted by the facts found, and matters of which the claimant was adjudged guilty that certainly can not affect directlyorin-directly the good order or military discipline of the Army. The court-martial refused to find that the claimant attempted to commit “ a fraud” upon Bateman & Co., and substituted for “fraud” the word “wrong;” but the findings show that he had deposited money with Bateman & Co. as bankers and received a statement of his accounts setting forth that he had been credited with “the said deposit;” and that they at the same time had given to him an instrument which has been variously called by Bateman a “duebill,” by tbe claimant “a negotiable promissory note,” and by tbe court-martial an “acknowledgment as a memorandum of tbe deposit,” wbicb was in these words:

“ Due D. G-. Swaim, or order, $5,000 for value received. -
Bateman & Co.
“Washington, D. C., July 15th, 1882.
“Ten per cent and interest 6 per cent.”

Tbe findings further show that tbe claimant “in tbe course of business transactions with that firm reduced tbe balance to bis credit” until tbere “ was due him only a balance of $33.89” when be transferred and assigned tbe instrument “to tbe firm of Bright, Humphrey & Co., builders, etc., of Washington,” “and did thereupon knowingly seek through tbe said last-named firm to obtain from and compel a payment by tbe said firm of Bateman &Oo., on their said acknowledgement,” “thus attempting to commit wrong upon tbe said Bateman & Co.” Tbe findings do not show that this instrument was commercial paper by mercantile usage in tbe District of Columbia, nor that it passed to Bright, Humphrey & Co. as negotiable paper, in good faith, before it bad become due, and for a present consideration; nor do they show that tbe claimant was insolvent and unable to respond to Bateman & Co. in whatever damages they might recover for their alleged advances to him. Therefore, according to tbe findings, Bright, Humphrey & Co. acquired no greater right or equity than the claimant himself possessed, and whatever defense could be set up against him could be set up as against them.

Inasmuch, then, as there was a balance remaining due to the claimant, and (as the court-found) the purpose of the assignment was “to obtain from and compel a payment by Bateman & Co. on their said acknowledment;” and inasmuch as the claimant had an unquestionable legal right to compel such a payment, and Bright, Humphrey & Co. could compel nothing more, this court is unable to preceive that a “wrong” could have been done by the assignment. If the claimant had sold the instrument to Bright, Humphrey & Co. upon assurances that the whole amount named in it remain unpaid, a wrong would have been done that firm. But no such charge was preferred against the claimant, nor do the findings of the court show that Bright, Humphrey & Co. ever complained. These remarks are not intended as criticism of the court-martial. A military court does not find in an involved ease like this a general verdict like that of a jury on an indictment, nor a special verdict of the material facts established by the evidence such as is sometimes found in civil cases. It labors under the great inconvenience of having to travel through every specification, line by line and word by word, and find whether the facts alleged did or did not occur. In the present ease the court found the accused “not guilty” as to a single word. Moréover, the findings of a court-martial take the form of“guilty” or “not guilty” and may adjudge iu form that the accused is guilty of an act which was in itself innocent.

But while the court has carefully discarded all matters in the findings which can not, in its opinion, constitute an offense, it still appears that the claimant had prolonged and involved business transactions with these bankers not altogether consistent with the duties of his most responsible military position ; that these transactions were so conducted as to require a lawsuit to bring them to an end, and to subject him to public charges of fraudulent practices; that while under these charges he withdrew the suit against the party who made them, apparently in consideration of his withdrawing his charges against the claimant; that when the letters charging the fraud and withdrawing the charge were referred to him for explanation he neglected to clear np the matter, and on the contrary gave an explanation which was uncandid and evasive, compelling the Secretary of War to take further steps toward removing the shadow which had fallen upon the reputation of the Army, and involving the Government -in the expenses and inconveniences of a court of inquiry and a court-martial; that when an officer of whom he knew little or nothing came to him to raise money on his pay accounts for months in advance, he introduced him to his own bankers apparently without words of caution and directly aided and countenanced a practice which must seriously interfere with an officer’s freedom of action and military efficiency. This court can not say that these acts were not prejudicial to good order and military discipline, and accordingly must hold that they are sufficient to uphold the charge.

We now come to the most complex and difficult question of the case, a question concerning which the court has entertained serious doubts that prolonged deliberation lias not wholly removed.

The question of fraud being out of the case, and the court-martial having properly acquitted the claimant on the charge-of conduct unbecoming an officer and a gentleman, imposed this sentence, “To be suspended from rank, duty, and pay for the period of three years.” The record then went to the President and was by him referred to the Attorney-General.

On the 11th February, 1885, the President returned the record to the court-martial “ for reconsideration as to the findings upon the first charge only, and as to the sentence, neither of which are believed to be commensurate with the offenses as found by the court in the first and third specifications under the first' charge.” The President also communicated to the court the opinion of the Attorney-General, “ whose views,” he added, “ upon the matter submitted for reconsideration have my concurrence.”

In this opinion the Attorney-General regards the facts found as being equivalent to those charged in the specifications, and he sternly censures the result reached in the sentence. After reviewing the action of the court, he says:

/‘The objection to the finding of the court in Gen. Swaim’s case is therefore based upon the obvious inconsistency between the findings of fact as contained in the specifications and the graduation of the offense in the substituted charge. The action of the court as a whole seems to involve a serious lowering of that high standard of honor which from the earliest days has been the pride and glory of our military service, and which was expressed on a memorable occasion by the great commander-in-chief of our Bevolutionary armies, when reluctantly compelled to reprimand a brother officer, in these words: ‘Our profession is the chastest of all; even the shadow of a fault tarnishes the luster of our finest achievements.’”

It is manifest that the Attorney-General did not clearly apprehend the position taken by the court-martial; that he did not perceive that the claimant’s evasive and uncandid action, no matter how described, was something less than and different from the positive offense of fraud. He intimates in his opinion that there is no difference between an intent to perpetrate a, “wrong” and an intent to perpetarte a “fraud”; and he fails, to observe that the court-martial had carefully sifted out of' the specifications the element of fraud which was the gravamen of tbe charge, “conduct unbecoming an officer and a gentleman.”

Tbe court-martial, notwithstanding tbe strictures of tbe Attorney-General, properly adhered to its determination that tbe facts found did not constitute tbe offense charged, but it imposed a second sentence upon tbe accused, tbe language of which is as follows: “The court, upon mature reconsideration, has not found tbe accused guilty of such a degree of wrongful or deceitful conduct as to justify a finding of guilty of conduct unbecoming an officer and a gentleman, and has therefore respectfully adhered to its finding upon tbe first charge.” And to this was added tbe following sentence:

“To be suspended from rank and duty for one year, with forfeiture of all pay for tbe same period, and at tbe end of that period to be reduced to tbe grade of judge-advocate with tbe rank of major in tbe Judge-Advocate-G-eneral’s department.”

This sentence tbe President likewise disapproved. He says:

It is apparent from tbe terms of tbe amended sentence that it was tbe intention of tbe court to award a punishment of greater severity and more nearly commensurate with tbe offenses of which tbe accused has been found guilty than was tbe penalty adjudged in tbe original proceedings, and if tbe terms of tbe amended sentence were such as could be legally carried out, tbe purpose of tbe court in that regard would have been accomplished. The provision,, however, that tbe accused shall, after a suspension for tbe period of one year ■ from rank and duty in tbe office now held by him be placed in another office of lower rank in tbe department of which tbe office now held by him is a part, is one impossible of enforcement by tbe Executive alone.- That office of lower rank can only be filled in tbe method pointed out by tbe Constitution, namely, nomination by tbe President and confirmation by tbe Senate, and then only in case of an existing vacancy. Tbe amended sentence, in effect, creates an office and fills it, thus at once embodying tbe exercise of legislative and executive functions, and tbe approving power .of tbe Senate.”

In tbe opinion of tbe court-martial tbe change of position imposed by tbe sentence was one of rank-; in tbe opinion of tbe President it was one of office.

Tbe court a third time deliberated and then imposed tbe sentence which was approved by tbe President and carried into execution and which tbe claimant now attacks. It is—

“To be suspended from rank and duty for twelve years and forfeit one-balf Ms monthly pay every month for the same . period.”

The Articles of War designate many offenses, such as murder, treason, larceny, robbery, burglary, arson, desertion, bribery, cowardice, drunkenness on duty, sleeping upon a post, disobedience of orders, disorderly conduct in quarters, irreverent conduct in church, profanity, etc. The legislative authority then gathers up the nonenumerated, indefinable offenses of military life and places them under the titles of conduct unbecoming an officer and a gentleman, and conduct prejudicial to good order and military discipline.

That this is the well-understood purpose and effect'of the article of war last referred to all military writers agree:

“This provision, taken originally from the British military law, was in substance incorporated in our first code of 1775, and has similarly appeared in each subsequent issue of our Articles of War. As will be illustrated in construing its separate terms, its evident purpose was to provide for the trial and punishment of any and all military offenses not expressly made cognizable by courts-martial in the other and more specific articles, and thus to prevent the possibility of a failure of justice in the Army. In practice, the greater number of the charges that are preferred against' soldiers, and a large proportion of those preferred against officers, are based upon this the ‘ general ’ article of the code. Wherever the offense committed is one not certainly, or fully, designated or described, in some other particular article, or where, though so designated, no punishment is assigned for its commission, or where it is doubtful under which of two or more articles the offender should be prosecuted, recourse is had to this comprehensive and serviceable provision as the authority and foundation for the charges and proceedings.” (Winthrop’s Military Law, Vol. i, p. 1035.)
“ Its policy is to provide a general remedy for a wrong which had not elsewhere been provided for.” (Samuel, Military Law, p. 6885 1816.)
“ There is scarcely any impropriety of conduct or irregularity which an officer or soldier may commit that may not be brought under the 70th article of war.” (Kennedy, Military Law, p. 34; 1847.)
“ The seventieth article of war is the most useful of the whole.”' (Napier, Remarks on Military Law, p. 59; 1837.)
“There are many offences which the soldier and officer may commit and many omissions of which they may be guilty which it would be impossible to distinctly lay down in separate articles of war * * *. .Hence it is that this article is resorted to under wbicli tbe sins of commission and of omission are tried and punished. The punishments are discretionary.”

(Hough, Precedents in Military Law, p. 270; 1855.)

“This article is intended to be supplementary to alltheothers and to provide a general charge under which every possible kind of offence, not provided for, may be ranged.” (Ooppée, Field Manual of Courts-Martial, p. 88; 1863.) .

Olode (Military a.nd Martial Law), pp. 12,18, and 40 (1874), refers to it as the Devil’s Article. On page 12 he says: “That article which the soldiers called the Devil’s Article,, viz: for punishing indefinitely crimes for which no’ special order had been set down.”

The purpose and reason of our existing statutory provisions are well expressed in the earliest article of war concerning minor offenses :

“All other faults, disorders, and offences not mentioned in these articles shall be punished according to the general customs and laws of war.” (Articles of the Earl of Essex, 1642. Winthrop’s Military Law, Yol. I, p. 1035).

It is, then, well settled that courts-martial have jurisdiction of minor military offenses and irregularities, and that the punishment therefor is lodged in their discretion. But it is also well settled that this discretion, though unrestricted in terms, must be exercised within reasonable limits ; that only minor punishments can be inflicted for minor offenses' (Dynes v. Hoover, 20 How., 65). Indeed, the principles of our existing military law is .not inaptly set forth in the articles of James II:

“All other faults, misdemeanors, and disorders not mentioned in these articles shall be punished according to the laws and customs of war, and discretion of the court-martial; provided, that no punishment amounting to the loss of life or limb be inflicted upon any offender in time of peace, although the same be allotted for the said offence by these articles and the laws and customs of war.” (Winthrop’s Military Law, Yol. i, p. 1035.)

A court-martial, therefore, in a case of these non enumerated, undefined, minor offenses is entrusted with the triple discretion of determining whether the acts proved are prejudicial to good order and military discipline, and of determining the gravity, seriousness, and degree of the offense, and of imposing an appropriate punishment.

It must also be borne in mind that a commanding officer charged with the duty of reviewing the proceedings of the court can not increase the severity of a sentence. He may approve or disapprove or mitigate, but he can not impose a new sentence of a more severe character.

The Attorney-General grounded his advice to the President upon the Army regulation, which provides that:

“When a court-martial appears to have erred in any respect, the reviewing authority may reconvene the court for a consideration of its action, with suggestions for its guidance. The court may thereupon, should it concur in the views submitted, proceed to remedy the errors pointed out, and may modify or completely change its findings. The object of reconvening the court in such a case is to afford it an opportunity to reconsider the record, for the purpose of correcting or modifying any conclusions thereupon, and also to make any amendments of the record necessary to perfect it.” (Army Regulations, 1881, Sec. 923.)

But it is clear to the court that a regulation, as its name imports, is to regulate and guide proceedings under the'law and not to make or override the law. The purpose of this regulation is well illustrated in the proceedings which followed the second sentence — that is, where a court-martial has inadvertently imposed a sentence impossible of execution, to bring the obstacle to the attention of the court so as to enable it to correct its error. The regulation was not intended to confer upon the reviewing officer power to interfere with the proper discretion of a court, or to require it to do that which he could not himself do — increase the severity of a sentence.

The question presented by the case is believed to be a new one, unless it be identical in legal effect with that which was before the Supreme Court in ex parte Seed (100 U. S. R., 13). In that case there was an unequivocal offence involving no discretion on the part of the court, viz, “malfeasance in the discharge of his official duty.” In this case it was necessarily within the discretion of the court-martial to determine whether the acts constituted an offence; and, if so, its gravity, seriousness, and degree. In both cases the punishment was within the discretion of the court; in both cases the reviewing officer disapproved the^leniency of the sentence; and in both cases the court-martial complied with his recommendation and imposed a severer punishment. On the one hand, it may be said of this case that the President did not interfere with the discretion of tbe court; that he clid not require it to impose a more severe sentence; that he merely invited it to reconsider its determination of the case, and left it free to reimpose the same sentence or to impose a milder one or a more severe one. On the other hand, it may be said that the disapproval of the sentence which the court in the lawful exercise of its discretion had imposed did not leave it free to reimpose the same sentence; that disapproving it on the express ground that it was too lenient, in effect compelled the court to impose a more severe one; that in military life a superior officer is conceded to be invested with superior wisdom; and that in such cases the reviewing officer should not be allowed to interfere with the judgment of the tribunal in whom discretion is exclusively vested by law.

But while the last principle is a sound one, which civil tribunals should carefully maintain, it is believed by this court that the decision of the court of last resort in ex parte Seed is conclusive upon this branch of the case.

The sentence of the court-martial was approved by the President and carried into execution on the 24th February, 1886. This action was brought ou the 24th February, 1891. That is to say, the claimant waited until half of his sentence had expired and until the last day before the statute of limitations would bar a part of his demand/ during which period he rendered no service whatever, and then brought an action for the forfeited portion of his pay.

In Ide’s Case (26 C. Cls. R., 401), where an officer erroneously dismissed did nothing for an unreasonable length of time, it was held that he had acquiesced in the order dismissing him, and abandoned the office. In Hildeburn’s Case (13 id., 62), where an officer had been mustered out as a supernumerary and had accepted the benefits given to such officers (one year’s pay without service), it was held to be a conclusive admission, and that he could not then contest the legality of his discharge. But the court is of the opinion that there is a distinction between those cases and the present one, inasmuch as all relations between the Government and the officer were there severed, or intended to be severed, while here the sentence retains the officer in the service, keeping him amenable to military law. It is thought by the court that while these relations continue, bis inaction does not preclude bim from questioning tbe legality of bis sentence.

Upon tbe question whether tbe claimant is entitled to recover allowances under tbe terms of bis sentence, upon tbe ground tbat only half of bis monthly pay was ordered to be forfeited, tbe court is of tbe opinion tbat where an officer is suspended from duty be is not entitled to allowance.

Tbe judgment of tbe court is tbat tbe petition be dismissed.  