Johnson v. Sayre/Opinion of the Court
By the fifth article of amendment of the constitution of the United States, 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.'

The decision below is based upon the construction that the words, 'when in actual service in time of war or public danger,' refer, not merely to the last antecedent, 'or in the militia,' but also to the previous clause, 'in the land or naval forces.' That construction is grammatically possible. But it is opposed to the evident meaning of the provision, taken by itself, and still more so when it is considered together with the other provisions of the constitution.

The whole purpose of the provision in question is to prevent persons not subject to the military law from being held to answer for a capital or otherwise infamous crime without presentment or indictment by a grand jury.

All persons in the military or naval service of the United States are subject to the military law,-the members of the regular army and navy, at all times; the militia, so long as they are in such service.

By article 1, § 8, of the constitution, congress has power 'to raise and support armies'; 'to provide and maintain a navy; to make rules for the government of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States'; and to make all laws necessary and proper for carrying into execution the foregoing powers, and al  other powers vested by the constitution in the government of the United States, or in any department or officer thereof.

Congress is thus expressly vested with the power to make rules for the government of the whole regular army and navy at all times, and to provide for governing such part only of the militia of the several states as, having been called forth to execute the laws of the Union, to suppress insurrections, or to repel invasions, is employed in the service of the United States.

By article 2, § 2, of the constitution, 'the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States.'

The president is thus, in like manner, made commander in chief of the army and the navy of the United States at all times, and commander in chief of the militia only when called into the actual service of the United States.

The fifth article of amendment recognizes the like distinction between the regular land and naval forces and the militia, as to judicial authority, that the constitution, as originally adopted, had recognized as to the legislative and the executive. It might as well be held that the words, 'when called into the actual service of the United States,' in the clause concerning the authority of the president as commander in chief, restrict his authority over the army and navy, as to hold that the like words in the fifth amendment, relating to the mode of accusation, restrict the jurisdiction of courts-martial in the regular land and naval forces.

The necessary construction is that the words in this amendment, 'when in actual service in time of war or public danger,' like the corresponding words, in the first article of the constitution, 'call[ed] forth to execute the laws of the Union, suppress insurrections and repel invasions,' and 'employed in the service of the United States,' and those, in the second article, 'when called into the actual service of the United States,' apply to the militia only.

This construction has hitherto been considered so plain and indisputable that it has been constantly assumed and acted on by this court, without discussion. Dynes v. Hoover, 20 How. 65; Ex parte Reed, 100 U.S. 13; Ex parte Mason, 105 U.S. 696; Kurtz v. Moffitt, 115 U.S. 487, 500, 6 Sup. Ct. 148; Smith v. Whitney, 116 U.S. 167, 186, 6 Sup. Ct. 570. See, also, 1 Kent, Comm. 341, note; Miller, Const. 506, 507; In re Bogart, 2 Sawy. 396, Fed. Cas. No. 1,596; 12 Op. Attys. Gen. 510.

Upon an appeal from the circuit court of the United States in a case of habeas corpus, all questions of law or of fact arising upon the record, including the evidence, are open to consideration; and the circuit court has no authority to make conclusive findings of fact, as it might do in actions at law upon waiver of a jury, or in cases in admiralty. In re Neagle, 135 U.S. 1, 42, 10 Sup. Ct. 658; Bond v. Dustin, 112 U.S. 604, 5 Sup. Ct. 296; Ralli v. Troop, 157 U.S. 386, 417, 15 Sup. Ct. 657.

The suggestion, in the opinion below, that 'the prison at Boston is shown in evidence to be one of narrow cells, and limited appliances for comfort, and such as would seem to render confinement in it for a long term a punishment which the law regards as 'cruel and unusual." and forbidden by the eighth article of amendment of the constitution, is unsupported by anything in the record. The remarks of the secretary of the navy, in the general order of March 25, 1871, No. 162, cited by the learned judge, as to the condition of the prisons at the command of the department at that time, have no tendency to show what is the present condition of any of those prisons. And no point of the kind was made at the argument in this court.

By the articles for the government of the navy, established by congress, under the power conferred upon it by the constitution, 'fine or imprisonment, or such other punishment as a court-martial shall adjudge, shall b  inflicted upon any person in the naval service of the United States,' 'who steals, embezzles, knowingly and wilfully misappropriates, applies to his own use or benefit, or wrongfully and knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money or other property of the United States, furnished or intended for the military or naval service thereof'; and 'all offences committed by persons belonging to the navy while on shore shall be punished in the same manner as if they had been committed at sea.' Rev. St. § 1624, arts. 14, 23. But service on a receiving ship, even if she is at anchor at a navy yard, and not in a condition to go to sea, is 'sea service,' within the meaning of the statute giving officers 'at sea' a higher rate of pay than when 'on shore duty.' Id. § 1556; U.S. v. Symonds, 120 U.S. 46, 7 Sup. Ct. 411; U.S. v. Strong, 125 U.S. 656, 8 Sup. Ct. 1021.

By the Revised Statutes, certain paymasters, including those on receiving ships or at naval stations, are each allowed a clerk; the pay of the clerk is fixed; and he may become entitled to bounty land, or to a pension. Rev. St. §§ 1386, 1556, 2426, 4695. He is not, indeed, deemed one of the petty officers, who are entitled to obedience, in the execution of their offices, from persons of inferior ratings. Id., § 1410. Nor is he entitled to mileage, as an 'officer of the navy,' under the act of June 30, 1876, c. 159 (19 Stat. 65); U.S. v. Mouat, 124 U.S. 303, 8 Sup. Ct. 505. But he is included among 'officers and enlisted men in the regular or volunteer army or navy,' and as such entitled to longevity pay, under the act of March 3, 1883, c. 97 (22 Stat. 473); U.S. v. Hendee, 124 U.S. 309, 8 Sup. Ct. 507.

The appointment and acceptance of Sayre as paymaster's clerk were in accordance with the regulations for the government of the navy established February 23, 1893, by the secretary of the navy, with the approval of the president, pursuant to section 1547 of the Revised Statutes. Navy Regulations of 1893, art. 1697, p. 438.

He was therefore, as has been directly adjudged by this court, a person in the naval service of the United States, and subject to be tried and convicted, and to be sentenced to imprisonment, by a general court-martial. Ex parte Reed, 100 U.S. 13.

The provision of article 43 of the articles for the government of the navy, which prescribes that 'the person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest' (on which Sayre relied before the court-martial, and in this court), evidently refers, as appears by the very next article, to the time when he 'is arrested for trial' by court-martial, and not to the time of any previous arrest, either by way of punishment, or to await the action of a court of inquiry. Rev. St. § 1624, arts. 24, 43, 44, 55. Sayre, being already in custody to await the result of a court of inquiry, could not be considered as put under arrest for trial by court-martial before the secretary of the navy had informed him of the report of the court of inquiry, and had ordered a court-martial to convene to try him. Immediately after that, and four days before the court-martial met, he was furnished with a copy of the charge and specification on which he was to be tried. This was a sufficient compliance with the article in question. And it is, at the least, doubtful whether the objection that it had not been sooner delivered to him did not come too late, after he had admitted before the court-martial that he had received a copy of the charge and specification, and after objections to the jurisdiction of the court and to the form of the accusation had been made and overruled, and he had pleaded not guilty, and the evidence for the United States had been introduced.

The court-martial having jurisdiction of the person accused and of the offense charged, and having acted within the scope of its lawful powers, its decision and e ntence cannot be reviewed or set aside by the civil courts, by writ of habeas corpus or otherwise. Dynes v. Hoover, 20 How. 65, 82; Ex parte Reed, 100 U.S. 13; Ex parte Mason, 105 U.S. 696; Smith v. Whitney, 116 U.S. 167, 177-179, 6 Sup. Ct. 570.

Order reversed, with directions to remand Sayre to custody. 

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