
    BIRD L. FLETCHER v. THE UNITED STATES.
    [No. 16702.
    Decided June 8, 1891.]
    
      On the Proofs.
    
    A court-martial finds an officer on the retired list guilty of conduct unbecoming an officer and a gentleman in having, ‘ ‘ with, intent to defraud, failed, neglected, and refused to pay the said W. the amount due him, though repeatedly requested so to do\” and sentences him to be dismissed the service. The Secretary oí War indorses on the proceedings that they “ have been forwarded to the Secretary of War for the action of the President,” and that the sentence is approved.
    
      I.The rule deduced from the decisions of the Supreme Court in the oases of Bunlcle (132 U. S. R., 543) and Page (137 id., 673) is this: where it appears positively on the face of an order dismissing an officer that the proceedings of a court-martial had been submitted to the President by the Secretary of War, it must be inferred that the subsequent approval and confirmation of the sentence, though in the name of the Secretary, was the act of the President.
    II.An order issued by the Secretary of War which recites that the proceedings of a court-martial were forwarded to him “for ihe aetion of the President,” does not show, otherwise than argumentatively, that the proceedings had been laid before the President and that the confirmation of the sentence was the result of his judgment.
    III. The one hundred and sixth Article ofWar (Rev. Stat., § 1342), which provides that “ in time of peace no sentence of a court-martial directing ihe dismissal of an officer shall he carried into execution until” “confirmed by the President,” is for the government of the Army and operates upon commanding generals and the Secretary of War ; the Act YHh July, 1860 (Rev. Stat., § 1229), which provides that no officer in time of peace shall be dismissed except “ in pursuance of the sentence of a court-martial,” is founded on the constitutional power of Congress to make rules for the government of the land and naval forces, and is a restriction upon the power of the President.
    IV. The President, with the advice and consent of the Senate, may remove an officer, notwithstanding the statutes, by the appointment of his successor; but filling a vacancy on the active list is too remote an exercise of the appointing power to be regarded as the dismissal of an officer on the retired list
    
      V.“Conduct unbecoming an officer and a gentleman" may consist in refusing to pay a debt. The undefined offenses covered by the term must be determined by a higher code than that of criminal law.
    VI. A sentence dismissing an officer in time of peace does not become operative until approved by the President; up to that time he is entitled to his pay.
    VII. An officer on the retired list does not come under the rule in Ide’s Case (25 C. Cls., 401), that if he acquiesces for a long time in the action of the Secretary of War dismissing him, it is an abandonment of the office equivalent to a resignation.
    
      The Reporter’s statement of tlie ease :■
    Tlie following are the facts of this case as found by the court:
    I. On December 27, 1850, the claimant was enlisted in the general mounted service of the Army; was transferred to the First Cavalry January 18, I860, aud assigned .to Troop I, which subsequently became Troop I of the Fourth Cavalry; joined the troop February 18, 1860; was promoted corporal January 23, 1863; and discharged March. 26,1863. February 24, 1863, lie was appointed second lieutenant in the Fourth Regiment of Cavalry, U. S. Army, to rank from February 19, 1863, and accepted the appointment March 27,1863. He was breveted first lieutenant May 10, 1863, for gallant and meritorious service in the cavalry action at Franklin, Tenn. October 12,1864, he was promoted first lieutenant. He served as first lieutenant until promoted captain, August 25, 1867. June 19, 1868, he was retired from active service, and placed on the retired list of the Army as per the following order.
    “SpecialOrders, » “Headquarters oe the Army,
    “Ho. 146. ) “Adjutant-General’s Office,
    “ Washington, June 19,1868.
    “3. A board of examination having found Captain B. L. Fletcher, 4th U. S. Cavalry, ‘ incapacitated for active service, and that said incapacity is the result of sickness and exposure incident to the service,’ the President directs that his name be placed upon the list of retired officers of that class in which the disability results from long and faithful service, or from some injury incident thereto, in accordance with section 16 of the act approved August 3, 1861.
    “ By command of General Grant.
    “E. D. Townsend,
    
      " Assistant A djuiant- General.”
    II. July 10, 1872, a court-martial was convened at Philadelphia, Pennsylvania,, by virtue of Special Order No. 28, dated June 29,1872, Headquarters Military Division of the Atlantic, for the trial of Captain Bird L. Fletcher (retired). Before this court-martial Captain Fletcher was arraigned and tried ou the charge and specifications annexed to and forming part of these findings. The claimant managed his own case in person before said court-martial, and was not represented by counsel.
    III. Tim proceedings, findings, and sentence were transmitted to the Secretary of War, who wrote upon the record the following order, viz:
    “War Department, July 24th, 1872.
    “ In conformity with the 65th of the Rules and Articles of Wa-r, the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President.
    “ The proceedings, findings, and sentence are approved, and the sentence will be duly executed.
    “Wm. W. Belknap;
    “ Secretary of War."
    
    
      From the date of this order the claimant has received no pay as an officer of the Army.
    IY. The Judge-Advocate General of the Army having, in 1888, reported to the Secretary of War that “in his [captain Fletcher’s] case there is no evidence of any action by the President at any time, and, following the precedent in Runkle’s case, it is still subject to the President’s action, which is not barred by any statute of limitations; ” and the Secretary of War having thereupon informed the President “ that Captain Fletcher is still undoubtedly an officer of the Army, and that the proceedings of the court which tried him are now awaiting action by the President,” the President, on July 5, 1888, made an order that “the proceedings, findings, and sentence of the court-martial in the foregoing case of Bird L. Fletcher, captain in the United States Army (retired), are hereby approved.”
    The reports and orders above referred to are annexed to and form part of these findings.
    Y. By orders from the Headquarters of the Army, dated September 14, 18G9, the claimant’s pay was stopped on account of some unsettled balances claimed to be due from him on account of subsistence fund stores, and property funds and stores, and other disallowances made-by authority in his accounts. By further order dated January 13,1870, the former order was so modified as to allow the claimant to draw his pay for September and October, 18G9. On June 15,1870, the balance claimed on said accounts was stated by orders at $237.04, and that amount was stopped from the pay of Captain Fletcher, the claimant.
    YI. The retired pay to which the claimant would have been entitled from December 1,1883, including longevity increase, was at the rate of $2,100 per annum.
    VII. Claimant did not dispute at the War Department the validity of his dismissal July 24,1872, in pursuance of the sentence of the court-martial for a period of nearly sixteen years, but did promptly petition Congress for redress and urge his restoration to the retired list. He made application for pay to the accounting officers of the Treasury after March 1, 1888.
    VIII. When Captain Fletcher was dismissed the service as an officer on the retired list by sentence of a court-martial, the retired list being limited to 300 (Bev. Stat., 1258, and references), was filled to its maximum in the following manner:
    
      On the 24th of August, 1872, Capt. Edward S. Meyer, Seventh Cavalry, was retired to ñll vacancy. The vacancy eaused by the retirement of Captain Meyer was filled by and with the consent of the Senate by the promotion of First. Lieut. Francis Moore to be captain Ninth Cavalry from August 24, 1872.
    The following are the charge and specifications of the court-martial, and the reports and orders referred to in the foregoing findings:
    “CHARGE AND SPECIFICATIONS.
    “ Charge. — Conduct unbecoming an officer and a gentleman.
    “ Specification I. — In this, that he, Captain Bird L. Fletcher, U. S. Army (retired), having, with promise of payment as soon as he received his pay due him from the paymaster, become justly indebted to H. S. Wagner, merchant, of Stroudsburg, Pa., in the sum of one hundred (100) dollars for supplies and various articles of merchandise furnished him by the said Wagner, in the said borough, at various dates between the 10th May and the 4th June, 1870, has, with the exception of the sum of twenty-five (25) dollars paid on account on the 28th September, 1870, up to the present time, without just cause and with intent to defraud, continuously failed, neglected, and refused to pay the said Wagner the amount of said indebtedness, although repeatedly requested by the said Wagner to do so about and subsequent to the 1st August, 1870.
    
      Specification II. — In this, that he, Captain Bird L. Fletcher, U. S. Army (retired), having, with promise of payment at the expiration of a month, become justly indebted to Joseph Wallace, merchant, of Stroudsburg, Pa., in the sum of iifty.-five (55) dollars and ten (10) cents for supplies and various articles of merchandise furnished by the said Wallace to the said Fletcher, in the said borough, at various dates between the 28th September and the 2d November, 1870, has, up to the present time, without just cause and with intent to defraud, failed, neglected, and refused to pay the said Wallace the amount due him, or any part or portion thereof, though repeatedly requested by the said Wallace to do so on and subsequent to the 2nd November, 1870.
    “ Specification III. — In this, that he, Captain Bird L. Fletcher, U. S. Army (retired), having, with promise of speedy payment, become justly indebted to Messrs. B. F. and H. D. Bush, merchants, of Stroudsburg, Pa., in the sum of sixty-two (62) dollars and fifty-one (51) cents for various articles of merchandise furnished him by. the said firm, in the said borough, at various times between April 14th and November 2nd, 1870, has, with the exception of forty (40) dollars and seventy-five (7o)cents paid on account on June 17th, 1870, and August 30th, 1870, up to the present time and without just cause and with intent to defraud, failed, neglected, and refused to pay the said firm the amount due them, although frequently requested by the members of the said firm to do so at different dates subsequent to the 1st July, 1870.
    “ Specification IV. — In this, that he, Captain Bird L. Fletcher, TJ. S. Army (retired), having, with promise of speedy payment, become justly indebted to Simon Fried, merchant, of Strouds-burg, Pa., in the sum of twenty-eight (28) dollars for various articles of merchandise furnished him by the said Fried, in the said borough, at various times between September 10th and November 16th, 1870, has, with the exception of the sum of ten (10) dollars paid on account'on 81st October, 1870, up to the present time, without just cause and with intent to defraud, failed and neglected to pay the said Fried the amount of said indebtedness, although repeatedly requested to do so by the said Fried about and subsequent to November 16th, 1870.
    
      " Specification V. — In this, that he, Captain Bird L. Fletcher, TJ. S. Army (retired), having, with promise of speedy payment, become justly indebted to J. Ingraham Allender, proprietor “ Stroudsburg House,” Stroudsburg, Pa., in the sum of forty-two (42) dollars for board between certain days in the months of March and May, 1870, has, with the exception of eighteen (18) dollars paid on account up to the present time, without just cause and with intent to defraud, continuously failed, neglected, and refused to pay the said Allender the amount of said indebtedness, although frequently requested by the said Allender to do so at different dates subsequent to the 1st July, 1870.
    “ SpecificationVI. — In this, that he, Captain Bird L. Fletcher, TJ. S. Army (retired), did, in the city of Paducah, Kentucky, on the 5th February, 1872, borrow the sum of thirty (30) dollars from Edward Baker, assessor internal revenue, 1st district Kentucky, representing that he (Fletcher) needed that sum in addition to the sum he had on hand to purchase the stock and fixtures of the Cumberland House of Paducah, Kentucky, which he (Fletcher) had an opportunity to buy, and promising, on the honor of an officer and gentleman, to repay the said loan at the end of the month in which it was made, or as soon thereafter as he (Fletcher) got his pay from the paymaster; and, notwithstanding, the said Fletcher never completed the transaction for which the money was loaned; the said Fletcher did not return the said amount of money to the said Baker at the time, nor has he (Fletcher) at any time repaid him the said amount, although repeatedly requested to do so by the said Baker at different dates, from a day or a few days after the contraction of the said debt until on or about the 6th June, 1872, when the said Fletcher left the city of Paducah; and, moreover, that the replies made by said Fletcher to the said Baker whenever asked by him to pay the said debt, which replies were to the effect that bis (Fletcher) pay was stopped by authority until certain accounts should be adjusted, were false and calculated to deceive the said Baker; and further, that about ten (10) days previous to the said Fletcher leaving Paducah, Kentucky, as stated above, he promised the said Baker he would not leave without paying the debt in question, or giving security to do so, which promise was never fulfilled, the said Fletcher leaving Paducah, Kentucky, without notification to or settlement with the said Baker.
    “ This on and about the dates and at the places specified above.
    Bichard 0. Drum,
    
      Colonel, and Assistant Adjutant-General,
    
    “ To which the accused pleaded as follows:
    “ To the first specification: ‘ Not guilty.’
    “To the second specification : ‘ Not guilty.’
    “To the third specification: ‘Not guilty.’
    “To the fourth specification : ‘Not guilty.’
    “ To the fifth specification : ‘ Not guilty.’
    “ To the sixth specification: ‘ Not guilty.’
    “To the charge: ‘Notguilty.’
    #****##
    “ The accused having no more evidence to offer and nothing further to say in defense, the court was cleared and closed, and after mature deliberation, on the evidence adduced, finds the accused, Captain Bird L. Fletcher, U. S. Army, retired, as follows:
    “ Of the 1st specification: ‘ Guilty, substituting the date 27th September, 1870, for the date 28th September, 1870, and excepting the words ‘ and refused,’ and of the excepted words, Not guilty.’
    “ Of the second specification: ‘ Guilty, excepting the words, ‘ and refused,’ and of the excepted words, Not guilty.’
    “ Of the third specification : ‘ Guilty.’
    “ Of the fourth specification : ‘ Guilty.’
    “ Of the fifth specification : ‘ Guilty, substituting the words and figures ‘twenty-six (20) dollars’ for the words and figures ‘ eighteen (18) dollars,’ and excepting the words ‘ and refused,’ and of the excepted words, Not guilty.’
    “ Of the sixth specification : ‘ Guilty.’
    “Of the charge: ‘Guilty.’
    “And the court does therefore sentence Captain Bird L. Fletcher, U. S. Army (retired), to be dismissed the service.”
    War DEPARTMENT, July 24th, 1872.
    “In conformity with the Goth of the Bules and Articles of War, the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President.
    
      “ The proceedings, findings, and sentence are approved, and the sentence will be duly executed.
    “ Win. W. Belknap,
    “ Secretary of War.”
    
    “ Executive Mansion,
    “ Washington, July 5,1888.
    “ The proceedings, findings, and sentence of the court-martial in the foregoing case of Bird L. Fletcher, captain in the U. S. Army, retired, are hereby approved.
    “Grover Cleveland.”
    “REPORTS AND ORDER OP THE PRESIDENT.
    “ There is here no evidence that the proceedings were laid before the President, and that the sentence received his approval: in other words, that the proceedings have ever been acted on as the law requires. (Runkle v. TJ. S., 122 0. S., 543.)
    “ The order professing to dismiss Runkle from the Army was dated January 16, 1873. On the 4th of August, 1877, President Hayes reviewed the official action theretofore taken in that case, and having caused the record to be laid before him, and having considered the same, disapproved the conviction and sentence, and revoked the order dismissing Runkle.
    “And upon the facts in Runkle’s case, the Supreme Court held that there was no evidence of President Grant’s approval, but that there was evidence of President Hayes’ disapproval, and that Runkle was never legally out of the service.
    “ In Runkle’s case, President Hayes reviewed the proceedings five years after the court-martial sat. He disapproved the sentence, and thereupon Runkle was restored to the status of a retired officer, and there being no vacancy in the retired list, was carried on the rolls as additional to the number of retired officers allowed by law. Fletcher also was a retired officer and held no office from which he was ousted by the nomination and confirmation of a successor. In his case there is no evidence of any action by the President at any time, and following the precedent in Runkle’s case, it is still subject to the President’s action, which is not barred by any statute of limitations.
    “The record of the trial and the original report of Judge-Advocate-General Holt, of July 23, 1872, are herewith respectfully submitted.
    “ G. Norman Lieber,
    
      “Acting Judge-Advocate- General
    
    
      “ War Department,
    
      " Washington City, May IS, 1888.
    “ Sir : I have the honor to acknowledge the receipt of a copy of the record in the case of Captain Bird L. Fletcher, transmitted by your direction on April 21st for examination and report.
    “ In reply I beg to invite attention to the report of the Acting Judge-Advocate-General, dated April 17, 1888, which contains all material facts in the case.
    “ It appears from these facts that Captain Fletcher is still undoubtedly an officer of the Army, and that the proceedings of the court which tried him are now awaiting action by the President. The original record is therefore herewith transmitted, with a recommendation that the sentence be approved.
    “Very respectfully your obedient servant.
    “ Wm. O. Endicott,
    “ Secretary of Wour.
    
    “ The President.”
    “ Executive Mansion, '
    “ Washington, July 5, 1888.
    “ The proceedings, findings, and sentence of the court-martial in the foregoing case of Bird L. Fletcher, captain.in the U. S. Army (retired), are hereby approved.
    “ Grover Cleveland.”
    “Special orders). “War Department,
    
      “ No. 197. ) “ Adjutant-General’s Office,
    “ Washington, Auyust 24,1872.
    “ 1. A board of examination having found Captain Edward S. Meyer, 9th Cavaly, incapacitated for active service by reason of a gunshot wound received at the battle of Chancellorsville, Virginia, May 3, 1863, the President directs that his name be placed upon the list of retired officers of that class in which the disability results from long and faithful service, or from wounds or injury received in the line of duty, in conformity with sections 16 and 17 of the act of August 3,1861. **##*##
    “ By order of the Secretary of War.
    “ E. D. Townsend,
    “Adjutant• General, ”
    “ War Department,
    “ Washington City, September 2d, 1872.
    “Sir: You are hereby informed that the President of the United States has promoted you to the rank of captain in the Ninth Begiment of Cavalry in the service of the United States, to take effect from the twenty-fourth day of August, one thousand eight hundred and seven ty-two, vice Meyer, retired from active service. Should the Senate, at the next session, advise and consent thereto, you will be commissioned accordingly.
    “ Wm. W. Belknap,
    
      “Secretary of War.
    
    “ Captain Francis Moore,
    “ 9tli Cavalry, Fort Ciarle, Texas.”
    
    “The President of the United States of America, to all who shall see these presents, greeting:
    “ Know ye, That-, reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of Francis Moore, I'have nominated and, by and with the advice and consent of the Senate, do appoint him captain in the Mnth Regiment of Cavalry in the service of the United States, to rank as such from the twenty-fourth day of August, eighteen hundred and seventy-two. He is therefore carefully and diligently to discharge the duty of captain by doing and performing all manner of things thereunto belonging. And I do strictly charge and require all officers and soldiers under his command to be obedient to his orders as captain. And he is to observe and follow such orders and directions, from time to time, as he shall receive from me,- or the future President of the United States of America, or the General or other superior officers set over him, according to the rules and discipline of war. This commission to continue in force during the pleasure of the President of the United States for the time being.
    “ Given under my hand at the city of Washington, this eleventh day of January, in the year of our Lord one thousand eight hundred and seventy-three,‘and in the ninety-seventh year of the Independence of the United States.
    “U. S. Grant.
    “ By the President:
    “ War. W. Belknap,
    “ Secretary of Wa/r.n
    
    
      Mr. George A. King for the claimant:
    I. The court-martial proceeded on a charge and specifications wholly void in law.
    The Sixty-first (formerly Eighty-third) Article of War provides that—
    “Any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.”
    It is manifest, however, that whether an offense within the Articles of War is charged against an officer can not be de-termineil merely by tbe title given by- tbe pleader under tbe general description of tbe charge, but must be settled by a reference to tbe specifications. Tbe jurisdiction of every tribunal is always subject to be reexamined collaterally.
    Tbe military authorities on this'Article of War are numerous, but none of them admit the nonpayment of indebtedness as a ground for accusation under the article. All agree that some element of fraud, bad faith, breach of trust, deceit, or other dishonorable conduct must encer into the transaction. Simply to make a promise and then break it is a mere breach of contract, often as not the result of misfortune to which no culpability whatever can be attached; but even if arising from carelessness or extravagance, it does not attain the gravity of a crime or offense against the law either military or civil.
    The conduct denounced by this Sixty-first Article is such as is unbecoming an officer and a gentleman in both capacities. It must be such grave official misconduct as is also inconsistent with the character of a gentleman which all officers of the Army are expected to maintain; or on the other hand it must be in his character as a gentleman such a scandalous breach of honesty or decency as seriously compromises his position as an officer, and renders him an unfit associate for his brethren of the service.
    Simmons on Court-martial, Sections 158, 159, 840-842; Hough’s Precedents in Military Law, 237-240; Samuel on Military Law, 645-052, set forth the English rule.
    DeHart’s Military Law, a reliable American authority, after discussing this article, concludes (p. 377), “Thus a charge of unofficer-like and ungentlemanly conduct, when divested of all tendency to affect good order and military discipline, and at the same time involving no moral turpitude of such a kind as would reflect discredit upon the military community, can not be deemed cognizable by a military court.”
    “In 1743 Lieutenant Frye, serving in the West Indies on a British man-of-war, was ordered by his superior officer to assist in- arresting another officer. The lieutenant demanded what he had, according to the customs of the naval service, a right to demand, a written order, before he would obey the command. For this he was put under arrest, tried by a naval court-martial, and sentenced to fifteen years’ imprisonment. It appears that the depositions of certain illiterate persons, unknown to tbe accused, were taken and admitted in evidence ; that the accused objected to such evidence, but the objection was overruled. In 1746 he brought an action in the court of common pleas against the president of the court-martial, and damages of £1,000 were awarded for his illegal detention and sentence; and the judge informed him that he might also bring his action against any member of the court-martial.” (Ives on Military Law, p. 36, citing 1 McArthur on Courts-martial, pp. 268-271.)
    A ruling having a direct and important bearing on the present case was made íd 1881. An officer was charged with “ conduct unbecoming an officer and a gentleman.” The first specification set out that the accused, having remained for a long period — nearly five years — justly indebted to a post-trader in a certain sum, and having been repeatedly, but vainly, requested by the creditor to settle, finally wrote him, July 6, 1880, that he would pay him in full not later than October 1, 1880, which promise he wholly failed to fulfill, “though receiving the full pay of a captain, retired, and being abundantly able to pay said amount.” By the second specification it was charged that having become indebted to a certain person he pledged his word as an officer and a gentleman to one of the majors of his regiment that if he (said major) would become responsible for the debt, he would presently liquidate the same; but wholly failed for three years to pay the debt, and neglected to answer inquiries made of him respecting the same through the Adjutant-General’s Office.
    He was also charged with “ conduct to the prejudice of good order and military discipline” by three specifications, alleging a failure to respond to communications from the Secretary of War demanding an explanation of his conduct.
    He was found guilty of the charges, and sentenced “ to be dismissed from the service.” The President, however, made the following order:
    “The sentence in the foregoing case of Captain-(retired) is not confirmed, for the reason that the element of fraud, essential to bring the failure to liquidate indebtedness within the purview of the charge of 4 conduct unbecoming an officer and a gentleman,’ is not found to have been established by the proof. ' *
    “ Chester A. Arthur.”
    G. C. M. O. No. 70. 1881.
    
      Winthrop, after citing the cases under this article of “ Dishonorable Neglect to Discharge Pecuniary Obligations,” adds in a note (Winthrop, Military Law, 1024, 1027):
    “ Some such culpable and dishonorable circumstances should characterize the transaction to make it a proper basis for a military charge. A mere failure to settle a private debt (which may be more the result of misfortune than ot fault), can not, of course, properly become the subject of trial and punishment at military law.”
    In five specifications it is charged that these various neglects and refusals to pay were “ without just cause, and with intent to defraud.” These words add nothing to the force of the facts alleged. As the law, strictly speaking, recognizes no just cause for the failure to pay a debt, the words under consideration mean nothing more than that although the amount was justly due, accused neglected (or refused) to pay it, being thus a mere rhetorical flourish of the pleader, exactly as in' a declaration in assumpsit for goods sold and delivered, it is alleged that the defendant “not regarding his said promise and undertaking, but contriving and fraudulently intending craftily and subtilly to deceive and defraud the said A. B. in this behalf, hath not yet paid the said sum of money or any part thereof,” etc. (Tyler’s Stephen on Pleading, 72.)
    The sixth specification is that the accused borrowed $30 from a man in Paducah, Ky., in order in part to enable him to buy the stock and fixtures of a hotel at that place, and promised to pay it back again at the end of the month, or as soon as he got his pay. The trade in question was not completed, accused renewed his promise to pay, and said he would not leave the city without paying or giving security, yet he left without notifying or settling with his creditor, and when asked to pay replied that his (Fletcher’s) pay was stopped by authority until certain accounts should be adjusted, which reply was false.
    The promise not to leave without paying wasj m effect, simply a promise to pay before he left, and the failure to pay before leaving was just like the failure to pay in the other cases, a simple breach of contract.
    The time has gone by when debtors could be treated as criminals. The pen of Dickens familiarized the world with the horrors of the debtors’ prison in England, and led the way to the abolition of imprisonment for life as the practical result of inability to pay debts. Our own Supreme Court, though strict in the construction of that clause of the Constitution which forbids the States passing laws impairing the obligation of contracts, has held that a State law abolishing imprisonment for debt has not the effect prohibited by the Constitution. (Penniman’s Oase, 103 U. S. R., 714; Edwards v. Kearzey, 9G U. S. R., 595, 602.)
    Courts-martial are courts of limited and special jurisdiction. And it is essential to their validity that it should be affirmatively shown that they acted upon a case clearly within their jurisdiction, and that their proceedings were strictly regular. No presumption can be indulged in favor of the validity of the judgment of such a court; and its judgment is everywhere treated as a nullity, unless the record affirmatively shows both jurisdiction and regularity of proceeding. (3 Greenleaf on Evidence, § 470; Duffield v. Smith, 3 S. & R., 589 ; Broolcs v. Adams, 11 Pick., 440; Mills v. Martin, 11 Johns, 7 ; Bunlcle v. United States, 122 U. S. R., 555, 556.)
    Could it ever have been contemplated as possible that a court-martial could try an officer for the simple nonpayment of debts? Two facts demonstrate that this question must be answered in the negative.
    1. The gravity of the crime is indicated by the penalty imposed. The sentence can be neither more nor less than dismissal from the service. The conduct contemplated is such as to render it impossible in the eye of the law military for the officer longer to be permitted to associate with gentlemen of honor, such as his associates are or should be.
    2. The approval of the sentence of dismissal is placed by the Articles of War on precisely the same footing as a sentence of death.
    By article 105, “ No sentence of a court-martial inflicting the punishment of death shall be carried into execution until it shall have been confirmed by the President/’ — with an exception of certain cases occurring in time of war. And by article 106, “ In time of peace no sentence of a court-martial directing the dismissal of an officer shall be carried into execution until it shall have been confirmed by the President.”
    
      Again, too, articles 111, 112, and 121 couple the punishment of death with that of dismissal of an officer, thus putting the two upon precisely the same footing.
    II. The one hundred and sixth (formerly sixty-fifth) Article of War provides as follows:
    “ In time of peace no sentence of a court-martial, directing the dismissal of an officer shall be carried into execution, until it shall have been confirmed by the President.”
    The requisites of an order of confirmation were set forth in Bunlcle v. United States (122 U. S. B., 543, 561).
    The order of July 24,1872, approving the proceedings, findings, and sentence, lacks every requisite of a valid order of confirmation of court-martial proceedings. It states that the proceedings of the court-martial ‘f have been forwarded to the Secretary, of War for the action of the President.” In another sentence and paragraph it adds, “the proceedings, findings, and sentence are approved, and the sentence will be duly executed.” It bears the signature of the Secretary of War without any statement whatever that it has been affixed by order of the President or without the slightest evidence of a submission to the President. Commenting on the form of this order the present learned Acting Judge-Advocate-General of the Army remarks: “ There is here no evidence that the proceedings were laid before the President, and that the sentence received his approval; in other words, that the proceedings have ever been acted on as the law requires.” And following this opinion the Secretary of War under the last administration, Hon. William 0. Endicott, states: “ It appears from these facts that Captain Fletcher is still undoubtedly an officer of the Army, and that the proceedings of the court which tried him are now awaiting action by the President.”
    In United States v. Page (137 U. S. B., 673) a submission of the whole proceedings to the President was affirmatively and definitely set forth. The language (p. 676) was “ in conformity with the sixty-fifth of the Bules and Articles of War, the proceedings of the general court-martial into the foregoing case have been forwarded to the Secretary of War, and by him submitted to the President.” And subsequently it was stated that “ the proceedings and findings ” upon certain charges and specifications “are approved,” and still later on, that “the sentence is approved.” In the present case the order of 1872 simply states in one paragraph that the proceedings, etc., “ have been forwarded to the Secretary of War for the action of the President,” and in another, that “.the proceedings, findings, and sentence are approved, and the sentence will be duly executed.” This language is a mere approval of the proceedings by the Secretary of War.
    It is said in the Page case, p. G80, 137 U. S.. E.:
    “ Where the record discloses that the proceedings have been laid before the President for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the Secretary by whom they are authenticated; and this must be the result here, where the approval follows the submission in the same order.”
    Then distinguishing that case from that of Eunkle, in which it appeared that the proceedings, findiugs, and sentence of the court-martial were transmitted to the Secretary of War, and that the Secretary wrote upon it an order approving the proceedings, findings, and sentence, and stating that “ the President is pleased to remit all of the sentence except so much thereof as directs cashiering, which will be duly executed,” the opinion adds, p. 680: “In Eunkle v. United States (122 U. S. E., 543), the record failed to show the vital fact of the submission of the proceedings to the President.”
    As this record is throughout deficient in any showing of a submission of the proceedings to the President in 1872, the Page case, instead of being an authority against the present one, is in its explanation and approval of the doctrines decided in the Eunkle case an authority in its favor.
    
      Mr. F. P, Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    They differ in this, that in the case of Eunkle the Supreme Court argue that the President may have considered the approval, departmental business, and the approval to be that of the Secretary alone, whilst in the case of Fletcher the fact is asserted that the proceedings “ have been forwarded for the action of the President,” and “ are approved.”
    1. The approval must be that of the President, but it need not be attested by his sign manual in order to be effectual, jRnnhle Case (547,122 U. S. E.); Page Case (137 Id., 673).
    The Page Case differs from the case at bar in this, that in the approval signed by the Secretary it is set forth that the proceedings were submitted to the President.
    The proceedings and sentence in the Itunkle Case were disapproved by President Hayes, whilst the proceedings and sentence in the Fletcher Case were approved by President Cleveland. The disapproval of President Hayes related back to the time of the sentence; it is submitted that the approval of President Cleveland also related back to the time of the order of the Secretary of War directing that the'sentence be executed.
    2. Under the authority of the Blake Case (103 U. S. It., 227) it is submitted that Fletcher was out of the Army. The number of retired officers was limited to 300 at the time of Fletcher’s dismissal. His place was filled by Capt. Myer, of the hi in th Cavalry. Lieut. Francis Moore was appointed captain by the President and confirmed by the Senate, to fill the vacancy created by the retirement of Capt. Myer.
    The point suggested was not considered in the Runkle Case, if the same conditions existed, which does not appear.
    3. The case at bar ruled by the Ide Bass (25 C. Cls. R., 401). The material facts are the same in both cases except there are equitable and perhaps legal considerations in the Ide Case that do not present themselves in this.
    4. It is submitted that if the court-martial has been regularly and legally aj)pointed, if the offense charged is within the jurisdiction of the court, and the sentence imposed is justified by the offense, this court- is without power to inquire into the character of proof given to sustain the charge. There is no question made as to the regularity of the court. The charge made was,
    Conduct unbecoming an officer and a gentleman.” There can be no question but upon conviction the sentence was a legal one. This court is without authority to inquire as to whether the evidence was sufficient to sustain such charge.
    But the sentence was acquiesced in for more than 16 years. It is too late now to inquire into the evidence, even if under some circumstances it would be justifiable.
   Nott, J.,

delivered the opinion of the court:

The general principle laid down by the Supreme Court in Runkle’s Case (122 U. S. R., 543) is that “ in time of peace no sentence of a court-martial directing the dismissal of an officer shall be carried into execution until it shall have been confirmed by the President” (Article of War, 65; 2 Stat. L., 359), and the confirmation being " judicial in its character ” it must appear “ otherwise than argumentatively” that “ the whole proceedings of the court-martial had been laid before him,” and that the confirmation of the sentence was “ the result of his oton judgment,” and not a mere departmental order issued by the Secretary of War.

The trouble in this class of cases has not been with the principle, but with the application of it..

The order of dismissal involved in Runkle's Case (122 U. S. R., 543) is in these words:

The findings and sentence are approved.
“ In view of the unanimous recommendation by the members of the court that accused shall receive executive clemency on account of his gallant services during the war and of his former good character, and in consideration of evidence by affidavits presented to the War Department since his trial, showing that accused is now and was at the time when his offense was committed suffering under great infirmity in consequence of wounds received in battle, and creditable representations having been made that he would be utterly unable to pay the fine imposed, the President is pleased to remit all of the sentence except so much thereof as directs cashiering, which -will be duly executed.
“ War. W. Belknap,
“Secretary of War.”

The order of dismissal involved in Page's Case (137 U. S. R., 673) is in these words:

“ War Department,
" Washington City, May 27,1874.
“ In conformity with the sixty-fifth of the Bules and Articles of War the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War and by him submitted to the President.
“The sentence is approved.
“Second Lieut. Frank A. Page (retired) accordingly ceases to be an officer of the Army from the date of this order.
“Wm. W. Belknap,
“Sco'y of War.”

The order of dismissal involved in the present case is in these words:

“War Department, July 24,1872.
“ In conformity with the sixty-fifth of the Buies and Articles of War the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President.
“ The proceedings, findings, and sentence are approved, and the sentence will be duly executed.
“ War. W. Belknap,
“Secretary of War.”

It will be noted that the recitals in the last two orders are identical until we come to their concluding words. In the former those words are “and by him submitted to the President in the latter they are “ for the action of the President.”

In the case of Bunkle the Supreme Court held that the order of dismissal did not show “otherwise than argumentatively” that the proceedings of the court-martial had been laid before the President, or that the confirmation of the sentence was “the result of his own judgment,” and hence it was inoperative and void.

In the case of Page the Supreme Court held that as the order did show upon its face in positive terms that the proceedings had been laid before the President, it might be inferred otherwise than argumentatively that the confirmation of the sentence was the result of his own judgment, and hence that it carried the sentence into execution and dismissed the officer from the Army.

In the present case the question is whether the order comes within the decision in Runkle or in Page.

In neither of those cases does it appear that the order of dismissal was the act of the President, much less “ the result of his own judgment.” The only distinction which can be drawn between the two is that in Page’s case it appears in positive terms that the proceedings of the court liad been forwarded to the Secretary of War and “ by him submitted to the Presi-dentwhile in Runkle’s it only appears on the face of the order that “ in view of the unanimous recommendation by the members of the court that accused shall receive executive clemency,” and of certain other representations not a part of the proceedings of the court-martial, “ the President is pleased to remit all of the sentence except so much thereof as directs cashiering, which will be executed.” Consequently the only rule which can be deduced from the two decisions is that where it appears positively on the face of the order of dismissal that the proceedings of the court-martial had been submitted to the President by the Secretary of War it must be inferred that the subsequent approval and confirmation of the sentence, though in the name of the Secretary, was the act of the President and the result of his own judgment.

A third element appears in the present case which was not in either of the others. It is stated in the order of dismissal that the proceedings of the court-martial had been forwarded to the Secretary of War “/or the action of the President.” In the case of Page it was held that if it appears from the terms of the order that the proceedings of the court had been submitted to the President by the Secretary of War it may be inferred, not argumentatively, that the subsequent order of the Secretary dismissing the officer was the act of the President and the result of his own judgment. Can it likewise be inferred, not argumentatively, that if it appears upon the face of the order that the proceedings were forwarded to the Secretary “ for the action of the President ” the order in the name of the Secretary was the act of the President and the result of his own judgment?

The court can not regard the two orders as identical in legal effect. The former shows without argument or inference that the proceedings of the court-martial were actually laid before the President5 the latter shows nothing more than that the proceedings were “forwarded to the Secretary of War” for a purpose that may never have been executed — his submittingthem to the President. In the one case the record reached its official destination; in the other it may or may not. So far, therefore, the court must regard the case as ruled by the decision in Bunkle, and the order of the Secretary of War as void.

But in 1888 a subsequent Secretary of War called the attention of the then President to a petition of the claimant asking that the sentence of the court-martial be set aside and that he be restored to the retired list, and to an opinion by the Acting Judge Advocate-General stating that there was no evidence that the proceedings were ever laid before the President or that the sentence had received his approval. The Secretary of War added:

“It appears from these facts that Captain Fletcher is still undoubtedly au officer of the Army, and that the proceedings of the court which tried him are now awaiting action by the President. The original record, therefore, is herewith transmitted with a recommendation that the sentence be approved.”

And thereupon the President, on the oth of July, 1888, made an order in his own name approving the proceedings, findings, and sentence.

It is now maintained by the counsel for the claimant that the charges and specifications whereof Captain Fletcher was found guilty show upon their face no offense punishable by dismissal from the Army, and that such a sentence in such a ease is wholly void. The present suit is to recover pay up to the present time and virtually to restore Captain Fletcher to the retired list.

But it is contended by the counsel for the Government that the confirmation of the sentence by the President in 1888 related back and took effect as of the time when the proceedings reached the Secretary of War in 1883; that the President having filled the place of Captain Fletcher on the retired list by an appointment of an officer from the active list, and having filled the place of that officer on the active list by an appointment with the advice and consent of the Senate, there was a removal from office, and that the specifications set up facts which constitute the military offense of conduct unbecoming an officer and a gentleman, the punishment of which is dismissal from the Army (Art. War, 61).

There are two statutes relating to the dismissal of officers, which nevertheless have different objective points. The first is that which has been quoted, the sixty-fifth Article of War (now 106, Rev. Stat., § 1342); the second is the Act 17th July, 1866 (14 Stat. L., 92, § 5, Rev. Stat., § 1229), which provides that no officer in time of peace shall be dismissed from the service “ except upon and in pursuance of the sentence of a court-martial to that effect or in commutation thereof.”

The former statute is to be found in the “ Rules and Articles ” for the government of “The armies of the United States” (Rev. Stat., § 1342), and operates upon commanding generals in the field, generals commanding military departments, and the Secretary of War, in effect taking away the authority which they once possessed and forbidding them to carry the sentence of a court-martial into execution ,• the latter is founded on that provision of the Constitution which invests Congress with power “ to make rules for the government and regulation of the land and naval forces,” and is a restriction upon the power of the Commander-in-Ohief.

To these may be added a third law as declared by the Supreme Court in Blake’s Case (103 U. S. R., 227), the authority of the President, with the advice and consent of the Senate, to remove a military or naval officer notwithstanding the restriction of the last quoted statute, by the appointment of his successor.

The President did not assume to dismiss Captain Fletcher on his own judgment and responsibility; and the action of the President and the Senate in filling a vacancy on the active list seems to the court too remote to be accepted as the intentional dropping of an officer from the retired list. It was not the taking of a specific office from one man and giving it to another. All that the President has done or assumed to do was to give effect to the proceedings of the court martial by the confirmation of the sentence. If there was no valid sentence of a court of competent jurisdiction there was nothing to be confirmed. We must therefore determine whether the acts set up in the specifications, of which Captain Fletcher was found guilty, constitute an offense which will sustain the charge and consequently the sentence.

It must be confessed that, in the affairs of civil life and under the rules and principles of municipal law, what we ordinarily know as fraud relates to the obtaining of a man’s money, and not to refusing to pay it back. It is hard for the trained lawyer to conceive of an indictment or declaration which should allege that the defendant defrauded A or B by refusing to return to him the money which he had borrowed from him. Our legal training, the legal habit of mind, as it is termed, inclines us to dissociate punishment from acts which the 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.” That it is a fraud to obtain a man’s money by dishonest representations, but not a fraud to keep it afterwards by any amount of lying and deceit, is a distinction of statutory tracing. The gambler who throws away other people’s money and the spendthrift who uses it in luxurious living instead of paying it back, cheat and defraud their creditors as effectually as the knaves and sharpers who drift within the meshes of the criminal law. We learnt as law students iu Blackstone that there are things which ar& 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 society to stricter accountability; and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code. Moreover,' the specifications aver in one instance that the claimant used his honorable military position to borrow money upon, and assured his creditors of payment from the pay which the Government allows to officei’S on the retired list. It may or it may not be dishonorable for a man not to pay his debts; but that may depend upon how he incurred them and whether it is within his human possibilities to pay them. Certainly the Government does not give officers the respectability of rank and the support of retired pay to enable them to prey upon their fellow citizens. Eemembering the honorable military record of the claimant, the court is averse to commenting upon the details of the specifications, especially as it is not at liberty to review the evidence, but at the same time can not hold that refusing to pay a debt may not be conduct unbecoming an officer and a gentleman.

The court is therefore of the opinion that when the President approved the sentence, Captain Fletcher ceased to be an officer in the Army. But the court is at the same time of the opinion that the sentence did not become operative until then; and that from December 1, 1883, when the claimant was last paid, to July 5, 1888, when the sentence was confirmed by the President, Captain Fletcher is entitled to recover the pay of his rank on the retired list.

The case of Ide (25 C. Cls., 401) has been pressed upon the attention of the court by the counsel for the Government. The distinction between the two cases is this: In the former the claimant, being upon the active list, owed service to the Government which he allowed another man to perform, and his acquiescence in the action of the Secretary of War for a long period of time was an abandonment of the office, equivalent to a resignation. In the present case the claimant was exempt from service, and his pay on the retired list an honorable form of pension. That the retired list had reached its full limit by the retirement of another officer who took the'claimant’s place (lid not change his relation to the Government and was a condition of affairs with which he was not chargeable.

The judgment of the court is that the claimant recover of the defendant the sum of $9,654.  