
    DAVID G. SWAIM v. THE UNITED STATES.
    [28 C. Cls. R., 173; 165 U. S., 553.]
    
      On the claimant’s Appeal.
    
    The Judge-Advocate-General of the Army is charged by a citizen 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 anda 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.
    
      The court below decides:
    1. The constitutional power of the President to command the Army and Navy and of Congress “ to make 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.
    2. 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.
    3. In 1884 the seventy-second article of war did not restrict the appointment of a court-martial to try charges against the Judge-Advocate-General to the Lieutenant-General, under whose command he was.
    4. Where a military officer of high rank is charged by 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.
    5. 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.”
    
    6. 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 into the record and see that the discretion given to the court-martial has not been abused; that the sentence does not rest on suppositous 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.
    7. 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 “ conduct prejudicial to good order and military discipline.’’
    
    8. 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 restricted in terms, must be exercised within reasonable limits — that only minor punishments can be inflicted for minor offenses.
    9. A commanding officer charged with the duty of reviewing the proceedings of a court-martial may approve, or disapprove, or mitigate, but can not order a new sentence of a more severe character.
    
      10. The Army Regulation, 1881, No. 923, authorizes the reviewing officer to reconvene a court so that it may correct or modify its conclusions, hut does not authorize him to interfere with the proper discretion of the court.
    11. Where the President disapproved of a sentence which was within the discretion of the court, on the ground thatit was incommensurate with the offense, the case comes within the decision of the Supreme Court, ex parte Reed (100 U. S., 13), that the reviewing officer did not thereby require the court to impose a more severe sentence.
    12. 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 decision of the court below is affirmed on the same grounds.
   Mr. Justice Shiras

delivered the opinion of the Supreme Court, March 1, 1897.  