61 U.S.

65
20 How. 65
15 L.Ed. 838

FRANK DYNES, PLAINTIFF IN ERROR,

v.
JONAH D. HOOVER.
December Term, 1857
1

THIS case was brought up, by writ of error, from the Circuit Court of the
United States for the District of Columbia, holden in and for the county of
Washington.

Dynes was a seaman in the navy, who was tried by a court martial upon a
charge of desertion, who found him not guilty of deserting, but guilty of
attempting to desert; and sentenced him to be confined in the penitentiary of the
District of Columbia at hard labor, without pay, for the term of six months from
the date of the approval of the sentence, and not to be again enlisted in the
naval service. Whereupon, the President of the United States directed Hoover,
the marshal of the District, to commit him to the penitentiary.

The proceedings of the Circuit Court are stated in the opinion of the court.

The case was argued by Mr. Charles Lee Jones for the plaintiff in error, and by
Mr. Gillet for the defendant. There was also a brief on that side, filed by Mr.
Cushing, the late Attorney General.

Mr. Jones commenced his argument with a review of some of the principles of
military law pertinent to the issue; after which, he proceeded to state his points,
of which there is room to notice only the following, viz:

That the judgment and sentence of the court martial was an absolute nullity, and
affords no sort of justification to any one executing process under it.

The following well-settled principles of law cannot be controverted: 'That when

a court has jurisdiction, it has a right to decide every question before it; and if
its decision is merely erroneous, and not irregular and void, it is binding on
every other court until reversed. But if the subject-matter is not within its

jurisdiction, or where it appears, from the conviction itself, that they have been
guilty of an excess, or have decided on matters beyond and not within their
jurisdiction, all is void, and their judgments, or sentences, are regarded in law
as nullities. They constitute no justification; and all persons concerned in
executing such judgments, or sentences, are trespassers, and liable to an action
thereon.' (1 Peters, 340; 2 Peters, 169; Griffith v. Frazier, 8 Cranch, 9; 14 How.,
144; Wicks v. Caulk, 5 Harris and Johns., 42; Bigelow v. Stearns, 19 Johns., 39;
Case of the Marshalsea, 10 Co. R., 76; Terry v. Huntington, Hardres R., 480;
Shergold v. Hollway, 2 Strange, 1002; Hill v. Bateman, 1 Strange, 710; Perkin
v. Proctor, 2 Wilson, 382; Dr. Bouchier's Case, cited, 2 Wilson, 386; Martin v.
Marshall and Key, cited, 2 Wilson, 386; Parsons v. Lloyd, 3 Wilson, 341;
Miller v. Seare, 2 Wm. Black. R., 1145; Crepps v. Durden, Cowp., 640;
Groome v. Forrester, 5 M. and S., 314; Warne v. Varley, 6 Term, 443; Brown v.
Compton, 8 Term, 424; Moravia v. Sloper, Willes R., 30; Peacock v. Bell, 1
Saunders, 74; 8 Term, 178; 2 Wm. Black., 1035; The King v. Dugger, 1 Dowl.
Ry., 460; 3 Campbell's R., 388; Doswell v. Impy, 1 Barn. and Cress., 169; 13
Johns., 444.)
8

'A court martial is one of those inferior courts of limited jurisdiction whose
judgments may be questioned collaterally. It is an inferior court in the most
technical common-law sense of those words. It is called into existence for a
special and limited purpose, and to perform a particular duty; and when the
object of its creation is accomplished, it ceases to exist. The law will intend
nothing in its favor. The decision of such a tribunal, in a case without its
jurisdiction, cannot protect the officer who executes it. The court and the
officer are all trespassers.' (Wise v. Withers, 3 Cranch, 337; Ex parte Watkins,
3 Peters, 208; Mills v. Martin, 19 Johns., 32; Smith v. Shaw, 12 Johns., 267;
Brooks v. Adams, 11 Pickering, 442; Duffield v. Smith, 3 Sergt. and Rawle,
599; 3 Greenleaf's Ev., 470; Warden v. Baily, 4 Taunt., 67; Frye v. Ogle, 1
McArthur, Ap., No. 24, and Hickman, Ap., No. 17; Moore v. Bastard, 2
McArthur, 194, 200; 1 McArthur, chap. 10, 9, p. 264, 272; Hannaford v.
Hunn, 2 Carr. and Payne, 148; Wharton's American Law of Homicide, p. 52.)

Two essential vices appear on the face of the proceedings of the court martial in
question, either of which would alone render their whole proceedings irregular
and void.

10

1. The finding was in a cause coram non judice, it being for an offence of
which the plaintiff was never charged, and of which the court had no
cognizance.

11

2. The subject-matter of the sentence, the punishment inflicted, was not within

their jurisdiction, and is a punishment which they had no sort of permission or

authority of law to inflict. (See Hickman, p. 149, 152, and 1 McArthur, 158.)
12

1st. The court martial was brought into existence by the order or precept of the
Secretary of the Navy, and the plaintiff 'legally brought before it,' for the trial
of his guilt or innocence of the following 'charge and specification of a charge
preferred by the Secretary of the Navy,' and to no other legal intent or purpose
whatsoever:

13

'Charge.Desertion.

14

'Specification.In this, that on or about the twelfth day of September, in the

year 1854, the said Frank Dynes deserted from the United States ship
Independence, at New York.

15

'J. C. DOBBIN, Secretary of the Navy.'

16

Now, here is a charge, with its specification, drawn up with every desired legal
requisite of certainty and perspicuity, notifying the accused of the
circumstances and facts to be brought in issue, and warning him of the evidence
essential to establish his innocence. Of this charge, and of this charge only, had
the court martial jurisdiction to try him, (see 2 McArthur, p. 221,) and their
decision as to his guilt or innocence upon this charge, would be as absolute and
final as would be the decision of any other court on matters within their
jurisdiction.

17

But the court martial acquitted him of the only charge legally brought before
them, the only subject-matter whereof they had cognizance, but found him
guilty of another offence, of which they had no sort of jurisdictionan offence
as yet unknown to the law, not enumerated in the naval articles as one of the
crimes within the cognizance of a court martialthus convicting him of an
offence not included in the charge or specification before the court, but a new
offence, depending upon different facts and circumstances, and against the
accusation of which they gave him not the least time or slightest warning to
defend himself.
The finding of the court was as follows:

18

The court 'do find the accused, Frank Dynes, seaman of the United States navy,
as follows: Of the specification of the charge, guilty of attempting to desert; of

the charge, not guilty of deserting, but guilty of attempting to desert.'

19

This finding is in direct violation of the oath which, by the 36th article of the
act of Congress for the government of the navy, each member of the court is
required to take, 'before proceeding to trial,' that he 'will truly try, without
prejudice or partiality, the case now depending.' And of the 38th article, which
declares that 'all charges on which an application for a general court martial is
founded, shall be exhibited in writing to the proper officer, and the person
demanding the court shall take care that the person accused be furnished with a
true copy of the charges, with the specifications, at the time he is put under
arrest; nor shall any other charge or charges than those so exhibited be urged
against the person to be tried before the court,' unless under the circumstances
there enumerated, 'in which case reasonable time shall be given to the person to
be tried, to make his defence against such new charge.' (See Macomb on Courts
Martial, 35 and 36, p. 26; De Hart, p. 102; Tytler, 217.)

20

It is true that, at common law, the jury may frequently find the prisoner guilty
of a minor offence, included in the charge, or of a part of the offence therein
specified; as on an indictment for petit treason he may be found guilty of
murder or of manslaughter, for both these offences are included in the charge,
as is also the offence of manslaughter in the charge of murder; and under an
indictment charging an assault with intent to murder the party, may be
convicted of a simple assault only; or under an indictment charging an assault
with intent to abuse and carnally know, the defendant may be convicted of an
assault with intent to abuse simply. (1 Chitty's Crim. Law, 250, 251.)

21

In these cases, every fact and circumstance which is a necessary ingredient in

the offence is set forth in the indictment, and the party is enabled to determine
the species of offence he will be called upon to answer, and the evidence
necessary to establish his innocence.

22

But on an indictment for felony he cannot be convicted of a misdemeanor,

because the offences are distinct in their nature, and of a distinct legal
character.

23

Nor can a party be convicted, on an indictment for a specific offence, of an

attempt to commit that offence. (4 Blac. Com., p. 306, note.) Thus, on an
indictment for burglariously breaking and entering a dwelling-house and
stealing the goods mentioned, the party may be acquitted of the burglary, and
convicted of the larceny, it being included in the charge; but he cannot be
acquitted of the burglary and stealing, and convicted of a burglary with intent to

steal, or to commit any other felony, for they are distinct offences. (See
Vandercomb and Abbott's case, 2 Leach C. L., 828 to 833; 1 Russell on
Crimes, 831; Com. v. Roby, 12 Pickering, 505, 506, 507; 4 Blac. Com., 306,
note.)
24

So, on an indictment for murder, he cannot be acquitted of the murder, and

convicted of an assault with intent to murder. He is before the court charged
with a specific offence, and is prepared only to defend himself against that
charge, and the matter therein specified; he may entirely rely upon the evidence
of the very man of whose murder he is charged to prove that no homicide has
been committed. It would then be in violation of every principle of law to
convict him, without warning, of a different offence, depending on different
facts and circumstances; thus the fundamental doctrine of the law requires the
proof admissible, much less the finding or verdict, to correspond with the
allegations, and to be confined to the point in issue.

25

Courts martial, following these principles of the common law, may also find a
party guilty of a minor offence included in the charge. As on a charge of
desertion, they may acquit of that charge, and find the party guilty of 'absence
without leave,' for this offence is of a like nature, and all its ingredients are
included in the charge, for absence is the principal question in issue. (Tytler,
321, 322, 323; Adie, 185, 186, 187.) But attempting to desert is altogether a
distinct offence, depending upon different facts and circumstances, of which
the party has had no notice. He may be conscious of not having deserted, and
may expert to establish his innocence of that charge by circumstances and facts
which would render his being guilty of such an offence absolutely impossible.
Then would it not be of the very essence of tyranny, in violation of all those
immutable principles of right and justice which are the foundation of martial as
well as every other law, to find him guilty, and to inflict a punishment for this
other offence never before the court, and of which he never had the least time
or notice to make his defence?

26

Besides, 'absence without leave' is, by the British mutiny act, and the 21st
article of the act of Congress for the government of the army, (April 10, 1806,
2 Stat. at Large, p. 362,) made a military offence within the cognizance of an
army court martial.

27

But 'attempting to desert' is not enumerated by the articles for the government
of the navy as an offence within the cognizance of a naval court martial. A
naval court martial derives its sole being from, and is the mere creature of, the
act of Congress, and has no jurisdiction of any other offences than such as are
therein enumerated as within their cognizance. 'When a new court is erected, it

can have no other jurisdiction than that which is expressly conferred, for a new
court cannot prescribe.' (4 Inst. 200.)
28

But it may be contended that the 32d article covers this offence, which article is
in these words: 'All crimes committed by persons belonging to the navy, which
are not specified in the foregoing articles, shall be punished according to the
laws and customs at sea.' Such a construction would be leaving the definition of
crimes 'at sea' indeed, and a shoreless and uncharted sea, and would render the
previous minute enumeration of what offences might be tried and punished by a
court martial quite useless. The probable proper construction to put on this
article is, that it refers to such offences as are not of sufficient magnitude to be
punished by a court martial, and leaves them to be punished according to the
usages of the sea. However this may be, the offence at any rate should have
been legally brought before the court by a charge and specification preferred by
the proper authority, and it might then have been within the jurisdiction of the
court to have decided whether or not they could take cognizance of it under the
32d article; as it is, the cause was coram non judice, and their judgment and
sentence is not voidable, but absolutely void. (Hickman, 179, 149; 1 McArthur,
171; 2 ib., 221, 298, 199.)

29

The ground on which the judgment of the House of Lords, in the Banbury case,
was held not to conclude the question, 'was because the proper course had not
been pursued to bring the question of peerage in judgment before the Lords,
and therefore it was coram non judice, for the resolutions of the Lords, in that
case, were taken upon a petition from the defendant to the House itself;
whereas, the proper course for the trial of the right of peerage is by petition
from the claimant to the King, who thereupon refers it to the Lords.' 'Here was
no judgment. A court can give no judgment in a thing not depending, or that
does not come in a judicial way before the court.' (2 Salk., 511; Burdett v.
Abbott, 14 East, 106; Skinner R., 522, 524.)

30

'If a judge of an ecclesiastical court excommunicates a party for a cause of

which he hath not legal cognizance, or where the party has not been previously
served with a citation or monition, nor had due notice, an action lies against
him.' (Beaurain v. Scott, 3 Campbell's R., 388; 3 Black. Comm., 101.)

31

The argument of Mr. Jones and that of Mr. Gillet, upon the legality of using the
penitentiary as the place of punishment, are omitted.
Mr. Gillett made the following points:

32

FIRST.The naval court martial had jurisdiction of the offence of which the
plaintiff was convicted.

33

Among the powers conferred upon Congress by the 8th section of the first
article, are the following:

34

'To provide and maintain a navy.

35

'To make rules for the government and regulation of the land and naval forces.'

36

The 8th amendment, which requires a presentment of a grand jury in cases of

capital or otherwise infamous crime, expressly excepts from its operation 'cases
arising in the land or naval forces.'

37

These provisions show that Congress has the power to provide for the trial and
punishment of military and naval offences in the manner then and now
practiced by civilized nations.

38

In the exercise of the powers thus conferred upon the legislative department,
the act of the 23d of April, 1820, (2 U. S. L., p. 45,) was passed.

39

The 17th article of said act provides

40

'And of any person in the navy shall desert, or entice others to desert, he shall
suffer death, or such other punishment as a court martial shall adjudge.'

41

The 32d provides

42

'All crimes committed by persons belonging to the navy, which are not
specified in the foregoing articles, shall be punished according to the laws and
customs in such cases at sea.'

43

Congress specified a limited number of offences, and among them desertion;

and then, in the thirty-second article, made provision for all possible cases
which could occur in the naval service.

44

Among the offences which may be committed, is the attempt to desert.

Desertion is where a person, bound by his enlistment to remain in service, in
violation of his duty escapes from the control of those in command. An attempt

to desert is where the motive to desert is conceived, and an effort made to carry
it into effect, but which is not fully accomplished, owing to the want of success,
or to a change of purpose. Such an offence deserves punishment in a degree but
little below successful desertion. It is clearly one of the unspecified offences
provided for in the 32d article.
45

The 35th article provides for the appointment of courts martial. These courts
are created for the purpose of trying all cases arising in the naval service.

46

The 38th article provides, that charges shall be made in writing, which was
done in this case. It appears, by the record, that the court was lawfully
constituted; that the charge was made in writing; that Dynes appeared and
pleaded to the charge. If he had been found guilty of desertion, no complaint
could have been made against the conviction for want of jurisdiction in the
court. But, as it appears that the court, instead of finding him guilty of the high
offence of desertion, which authorizes the punishment of death, convicted him
of the inferior offence of attempting to commit the crime, it is assumed that the
court had no jurisdiction of the case. This assumption cannot be sustained.

47

It is a well-settled rule, that where a person is charged with a high offence, he

may be convicted of a lower one of the same class.

48

In the People v. Jackson, 3 Hill N. Y. R., 92, Cowen, J., in delivering the
opinion of the Supreme Court, said:

49

'The case is, in principle, like a conviction of manslaughter under an indictment

for murder; or of simple larceny, under an indictment for burglary or robbery.
The indictment charges facts enough, and more than enough, to make out a
misdemeanor; and the prosecution in such case is never holden to fail, merely
because all the alleged circumstances are not proved, if such as are proved
make out a crime, though of an inferior degree. This has been uniformly held by
the English courts, where the crime proved is of the same generic character
with that charged; for instance, where the proof is of an inferior felony, and the
indictment charges a higher.'

50

In the People v. White, 22 Wen., 167, 176, the Supreme Court of New York
laid down the same rule.

51

Roscoe, in his work on Criminal Evidence, p. 99, cites numerous cases to prove
that this rule is correct and sound.

52

The same principles are laid down in Phillipps's Evidence, p. 203.

53

In Chitty's Criminal Law, 1st vol., pp. 250, 251, the same rule is stated, and
many cases cited to prove it correct.

54

These rules are equally applicable to court-martial cases.

55

Writers on courts martial lay down similar rules.

56

O'Brien says: 'When the offence named in the charge admits of less degrees of
criminality, the court may find the specification to amount to only one of these
lesser degrees of the same crime.' P. 265.

57

De Hart says: 'In the deliberation of the court upon the finding to be declared, it
is necessary also to observe the distinctions which may be made between the
crime as alleged in the charge, and the degree of offence proved. A court
martial, therefore, may in some instances find a prisoner guilty of the offence in
a less degree than that stated. For example, a prisoner charged with desertion
may be acquitted of the charge, and found guilty of absence without leave.
Here it is manifest that the offence proved is of the same character as the one
charged, but differing in degree, arising from the intention of the accused party.
So, in all such, or similar findings of a court martial, must there exist a kindred
nature between the offences, as it would clearly be a violation of justice to find
a prisoner guilty of a crime differing in kind, and therefore not depending upon
degree of culpability, from that with which he stands charged.'

58

'It is evident, too, that as a prisoner stands charged with a specific offence, and
necessarily defends himself from the accusation as laid, a court martial,
although empowered to find him guilty in a less degree, cannot find a higher
degree of guilt than that alleged in the charge.' Pp. 184, 185.

59

Simmons says: 'It is scarcely necessary to remark, that the punishments peculiar
to desertion cannot be awarded on conviction of absence without leave,
however aggravated; and that an offender, charged with desertion, may be
found guilty of the minor crime, absence without leave, and receive judgment
accordingly.' Pp. 338, 339.

60

These authorities show that the same rule which prevails in the judicial courts
is applied by military tribunals, where less technical nicety prevails. The great
object in view in courts martial is to secure justice in the simplest manner

possible. De Hart says, (p. 146,) 'The same technical nicety which dcourts of
civil jurisdiction observe in criminal cases is not desirable or necessary in the
proceedings of a court martial, and exceptions made to form or matter are only
admitted by them when such appear essential to abstract justice.' Certainly,
abstract justice does not, in this case, require technical nicety. Justice has been
fully administered, in a manner common to criminal tribunals and courts
martial, and then no error has been committed.
61

The authorities above cited show that, on a charge for a higher offence, the
accused could be tried and convicted of a less one of the same generic
character. Were this not so, if the proof failed to show the accused guilty of the
higher offence, he would escape all punishment, as the trial and acquittal for
such higher offence might be pleaded in bar to an indictment for the inferior
one. The court having had unquestioned jurisdiction in the case presented in the
charge and specification contained in the record, it clearly included whatever
could be tried under them. The cases show that the accused could be tried for
the lesser offence covered by the more extensive one, formally presented
against him. It follows, that the court had ample jurisdiction to try and
determine it. Having the authority to try the plaintiff, the decision upon the
question of his guilt is conclusive upon him, and is not the subject of review in
this court; though, if it were, its correctness would not be questioned after
reading the evidence.

62

SECOND.As the court had jurisdiction, no errors committed in its exercise

can be reviewed or corrected by this court.

63

Courts martial have original jurisdiction in all offences committed by persons in

the naval service, when convened according to law, and such offences are
brought to their consideration in the manner specified in the statute. No
reviewing tribunal has been established, although the Secretary of the Navy and
the President, in effect, act as revising officers, where their concurrence is
required before the adjudication of the court can be carried into effect. The
decisions of courts martial are as conclusive as those of any other tribunal.
Their jurisdiction is general over a class, and is exclusive as to all naval
offences. Whether they exercise it wisely or erroneously, while they keep
within such jurisdiction, is not the subject of review by other courts. The matter
becomes res judicata.

64

In this case, the question of the guilt of the plaintiff is finally and conclusively
settled. The court had full power to direct punishment. In some cases the statute
defines that punishment, but it is generally left to the discussion of the court
trying the accused.

65

The plaintiff insists that the court exceeded its jurisdiction in requiring him to
be imprisoned for six months, at hard labor, in the penitentiary of the District of
Columbia. The 32d article of the act of 1800 is referred to as proof of this. It is
in these words:

66

'All crimes committed by persons belonging to the navy, which are not
specified in the foregoing articles, shall be punished according to the laws and
customs in such cases at sea.'

67

It is contended by the plaintiff, that the punishment adjudged is not according

to the laws and customs in such cases at sea. But this does not appear. Those
prescribed in the statute itself are applicable to the cases therein specified. The
present case relates to those not distinctly enumerated in the statute, but to such
as are authorized by the laws and customs in cases at sea. Who shall determine
this question? Is it a question of law, or of fact?

68

If it is a question of law, it was clearly one for the court martial sitting to
determine, and their decision is final, and not reviewable here. It was the duty
of that court to pass upon this very question, when they were determining the
punishment to be inflicted. It was clearly within their jurisdiction, and it was
their duty to consider and pass upon it. They did so, and their decision is
binding upon the parties to that trial, and cannot be reviewed here.

69

If it were a question of fact, it was equally the duty of the court martial to
consider and determine it upon the evidence before them; and the determination
is equally conclusive as if it were a question of law.

70

It is clear, that the question of punishments authorized by the laws and customs
of sea is one purely of fact. Such customs and laws are not written in books, but
exist as matters of fact, resting in tradition and practice. This court cannot know
them as a matter of law, and certainly not as a matter of fact. How can this court
say that imprisonment at hard labor is not a common punishment for offences,
where not specified in the statute, in case of offences at sea? Imprisonment is
clearly one mode of punishment for many offences known to our laws,
including those regulating the naval service, although not specified in words.
There are some thirty crimes specified in the statute, where the punishment is
within the discretion of the court martial. This may be, by being shut up in the
hold, or confined on the deck of a ship, or confinement at such place, at sea or
on land, as the court think proper. The sentence may include hard labor or not,
at the discretion of the court.

71

There is nothing in the statute to show that the undefined crimes and
punishments may not be dealt with in the same manner. No law or usage is
shown in the record on this subject. It follows, that there is no law or usage to
restrain the court in relation to the punishment that may be inflicted in the nonenumerated cases. If the plaintiff had believed that, in adjudicating the
punishment, the court martial had exceeded the customary and lawful
punishment for such offences, he should have framed an issue of fact upon that
point, and have gone to the jury upon it, instead of raising an issue of law,
where such fact cannot be determined. Instead of doing so, he comes here and
asks this court to determine, as a matter of fact, the laws and usages of the sea,
where the statute has failed to define them. This court cannot be lawfully called
upon, in suits of law, to pass upon any such question.

72

The very points now in dispute were legitimately before the court martial for its
determination. The accused could be heard upon all questions of law and fact.
He gave such evidence, as to both, as he saw fit. The court considered the case
as presented, and disposed of these same questions as a part of its duty, and thus
they become finally and conclusively settled; and the proceeding having been
approved by the Secretary, this court is bound to consider them rightfully
settled. But, if it should not, still the adjudication is binding upon it. This view
of the case is sustained by the highest authority.

73

In Martin v. Mott, 12 Wheat., pp. 19, 29, 30, this court held that 'the authority
to decide whether the exigencies contemplated in the Constitution of the United
States and the act of Congress of 1795, in which the President has authority to
call forth the militia 'to execute the laws of the Union, suppress insurrections,
and repel invasions,' have arisen, is exclusively vested in the President, and his
decision is conclusive upon all other persons.'

74

In Watkins case, 3 Peters, 193, p. 202, the question of the effect of a judgment
was fully considered in this court. In delivering the opinion, Story, J., said:

75

'A judgment, in its nature, concludes the subject on which it is rendered, and
pronounces the law of the case. The judgment of a court of record, whose
jurisdiction is final, is as conclusive on all the world as the judgment of this
court would be. It is as conclusive on this court as it is on other courts. It puts
an end to inquiry concerning the fact, by deciding it.'

76

In Wilcox v. Jackson, 13 Peters, 498, p. 511, this court, speaking of the

conclusiveness of judgments, said:

77

'This proposition is true in relation to every tribunal acting judicially, whilst

acting within the sphere of their jurisdiction, where no appellate tribunal is
created; and even when there is such an appellate power, the judgment is
conclusive when it only comes collaterally into question, so long as it is
unreversed.'In Elliott v. Piersol, 1 Peters, 328, p. 340, this court held: 'Where a
court has jurisdiction, it has a right to decide every question which occurs in
the cause; and whether its decisions be correct or otherwise, its judgment, until
reversed, is regarded as binding in every other court.'

78

Mr. Justice WAYNE delivered the opinion of the court.

79

The plaintiff brought an action for assault and battery and false imprisonment,
charging that the defendant imprisoned him in the penitentiary of the District of
Columbia. The defendant pleaded the general issue, and several special pleas,
in which he denied the force and injury, and set up, that he, as marshal of the
District of Columbia, imprisoned the plaintiff by virtue of the authority of the
President of the United States, in the execution of a sentence of a naval court
martial, convended under an act of Congress of the 23d of April, 1800; which
sentence was approved by the Secretary of the Navy, which was final and
absolute, and denying the jurisdiction of the court. The plaintiff filed a retraxit,
admitting that there was no battery, other than the imprisonment in pursuance
of the sentence of the court martial.

80

The charge by the Secretary of the Navy was desertion, with this specification:
'that on or about the twelfth day of September, in the year of our Lord one
thousand eight hundred and fifty-four, Frank Dynes deserted from the United
States ship Independence, at New York.' He pleaded not guilty. After hearing
the evidence, the court declared, 'We do find the accused, Frank Dynes, seaman
of the United States navy, as follows: Of the specification of the charge, guilty
of attempting to desert; of the charge, not guilty of deserting, but guilty of
attempting to desert; and the court do thereupon sentence the said Frank Dynes,
a seaman of the United States navy, to be confined in the penitentiary of the
District of Columbia, at hard labor, without pay, for the term of six months
from the date of the approval of this sentence, and not to be again enlisted in
the naval service.' This conviction and sentence was approved by the Secretary
of the Navy, on the 26th of September, 1854. The prisoner was then brought
from New York to Washington, in custody; and the President, reciting the trial
and sentence, made the following order upon the defendant, the marshal, in
relation to carrying the judgment of the court into execution. 'The prisoners
above named (the plaintiff, Dynes, being one among others) having been
brought to the city, by direction of the Secretary of the Navy, in the United

States steamer Engineer, you are hereby directed to receive them from the
commanding officer of said vessel, and commit them to the penitentiary in the
District of Columbia, in accordance with their respective sentences.' These facts
formed a portion of the defendant's pleas, to which the plaintiff demurred,
pointing out the following causes of demurrer:
81

1. Because the said court martial had no jurisdiction or authority whatever to

pass such sentence as that pleaded and set forth in said plea.

82

2. Because the sentence is illegal and void.

83

3. Because the President of the United States had no jurisdiction or authority

whatever to write such a letter to the defendant as that pleaded and set forth in
said plea, nor in any manner whatever to direct the defendant to commit the
plaintiff to the penitentiary in the District of Columbia, in accordance with said
sentence.

84

4. Because the said letter, and the said directions therein contained, are
unconstitutional, illegal, and void.

85

5. Because the said plea is altogether vicious and insufficient in law, and wants
form.

86

There was a joinder in demurrer and judgment for the defendant.

87

This presents the question, whether the defendant, as marshal, was authorized
to execute the direction to receive the plaintiff, then in custody of the captain of
the United States steamer Engineer, to deliver him to the keeper of the
penitentiary of the District of Columbia.

88

The demurrer admits that the court martial was lawfully organized; that the
crime charged was one forbidden by law; that the court had jurisdiction of the
charge as it was made; that a trial took place before the court upon the charge,
and the defendant's plea of not guilty; and that upon the evidence in the case
the court found Dynes guilty of an attempt to desert, and sentenced him to be
punished, as has been already stated; that the sentence of the court was
approved by the Secretary, and that by his direction Dynes was brought to
Washington; and that the defendant was marshal for the District of Columbia,
and that in receiving Dynes, and committing him to the keeper of the
penitentiary, he obeyed the orders of the President of the United States in

execution of the sentence. Among the powers conferred upon Congress by the
8th section of the first article of the Constitution, are the following: 'to provide
and maintain a nevy;' 'to make rules for the government of the land and naval
forces.' And the 8th amendment, which requires a presentment of a grand jury
in cases of capital or otherwise infamous crime, expressly excepts from its
operation 'cases arising in the land or naval forces.' And by the 2d section of
the 2d article of the Constitution it is declared that '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.'
89

These provisions show that Congress has the power to provide for the trial and
punishment of military and naval offences in the manner then and now
practiced by civilized nations; and that the power to do so is given without any
connection between it and the 3d article of the Constitution defining the judicial
power of the United States; indeed, that the two powers are entirely
independent of each other.

90

In pursuance of the power just recited from the 8th section of the first article of
the Constitution, Congress passed the act of the 23d April, 1800, (2 Stat. at
Large, 45,) providing rules for the government of the navy. The 17th article of
that act is: 'And if any person in the navy shall desert or entice others to desert,
he shall suffer death, or such other punishment as a court martial shall adjudge.'
The 32d article is: 'All crimes committed by persons belonging to the navy,
which are not specified in the foregoing articles, shall be punished according to
the laws and customs in such cases at sea.' The 35th article provides for the
appointment of courts martial to try all offences which may arise in the naval
service. The 38th article provides that charges shall be made in writing, which
was done in this case. The court was lawfully constituted, the charge made in
writing, and Dynes appeared and pleaded to the charge. Now, the demurrer
admits, if Dynes had been found guilty of desertion, that no complaint would
have been made against the conviction for want of jurisdiction in the court. But
as it appears that the court, instead of finding Dynes guilty of the high offence
of desertion, which authorizes the punishment of death, convicted him of
attempting to desert, and sentenced him to imprisonment for six months at hard
labor in the penitentiary of the District of Columbia, it is argued that the court
had no jurisdiction or authority to pass such a sentence; in other words, in the
language of the counsel of the plaintiff in error, that 'the finding was coram non
judice, it being for an offence of which the plaintiff was never charged, and of
which the court had no cognizance. That the subject-matter of the sentence, the
punishment inflicted, was not within their jurisdiction, and is a punishment
which they had no sort of permission or authority of law to inflict.'

91

But the finding of the court against the prisoner was what is known in the
administration of criminal law as a partial verdict, in which the accused is
acquitted of a part of the accusation against him, and found guilty of the
residue. As when there is an acquittal on one count, and a verdict of guilty on
another. Or when the charge is of a higher degree, including one of a lesser,
there may be a finding by a partial verdict of the latter. As upon a charge of
burglary, there may be a conviction for a larceny, and an acquittal of the
nocturnal entry. So, upon an indictment for murder, there may be a verdict of
manslaughter, and robbery may be reduced to simple larceny, and a battery into
an assault.

92

The objection is ingeniously worded, was very ably argued, and, we may add,
with a clear view and knowledge of what the law is upon such a subject, and
how the plaintiff's case must be brought under it, to make the defendant
responsible on this action for false imprisonment. But it substitutes an imputed
error in the finding of the court for the original subject-matter of its
jurisdiction, seeking to make the marshal answerable for his mere ministerial
execution of a sentence, which the court passed, the Secretary of the Navy
approved, and which the President of the United States, as constitutional
commander-in-chief of the army and navy of the United States, directed the
marshal to execute, by receiving the prisoner and convict, Dynes, from the
naval officer then having him in custody, to transfer him to the penitentiary, in
accordance with the sentence which the court had passed upon him. And this
upon the principle, that where a court has no jurisdiction over the subjectmatter, it tries and assumes it; or where an inferior court has jurisdiction over
the subject-matter, but is bound to adopt certain rules in its proceedings, from
which it deviates, whereby the proceedings are rendered coram non judice, that
trespass for false imprisonment is the proper remedy, where the liberty of the
citizen has been restrained by process of the court, or by the execution of its
judgment. Such is the law in either case, in respect to the court, which acts
without having jurisdiction over the subject-matter; or which, having
jurisdiction, disregards the rules of proceeding enjoined by the law for its
exercise, so as to render the case coram non judice. (Cole's case, John. W., 171;
Dawson v. Gill, 1 East., 64; Smith v. Beucher, Hardin, 71; Martin v. Marshall,
Hob., 68; Weaver v. Clifford, 2 Bul., 64; 2 Wils., 385.) In both cases, the law is,
that an officer executing the process of a court which has acted without
jurisdiction over the subject-matter becomes a trespasser, it being better for the
peace of society, and its interests of every kind, that the responsibility of
determining whether the court has or has not jurisdiction should be upon the
officer, than that a void writ should be executed. This court, so far back as the
year 1806, said, in the case of Wise and Withers, 3 Cr., 331, p. 337 of that case,
'It follows, from this opinion, that a court martial has no jurisdiction over a

justice of the peace as a militiaman; he could never be legally enrolled; and it is

a principle, that a decision of such a tribunal, in a case clearly without its
jurisdiction, cannot protect the officer who executes it. The court and the
officer are all trespassers.' (2 Brown, 124; 10 Cr., 69; Mark's Rep., 118; 8
Term R., 424; 4 Mass. R., 234.)
93

I add two cases from the 2d of Horace Gray's reports of the Supreme Judicial
Federal Court of Massachusetts, furnished me by Mr. Justice Campbell, of Pifer
v. Person, 120; Clark v. Whipple, in May and Kent, 410.

94

But the case in hand is not one of a court without jurisdiction over the subjectmatter, or that of one which has neglected the forms and rules of precedure
enjoined for the exercise of jurisdiction. It was regularly convened; its forms of
procedure were strictly observed as they are directed to be by the statute; and if
its sentence be a deviation from it, which we do not admit, it is not absolutely
void. Whatever the sentence is, or may have been, as it was not a trial by court
martial taking place out of the United States, it could not have been carried into
execution but by the confirmation of the President, had it extended to loss of
life, or in cases not extending to loss of life, as this did not, but by the
confirmation of the Secretary of the Navy, who ordered the court. And if a
sentence be so confirmed, it becomes final, and must be executed, unless the
President pardons the offender. It is in the nature of an appeal to the officer
ordering the court, who is made by the law the arbiter of the legality and
propriety of the court's sentence. When confirmed, it is altogether beyond the
jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case
in which the court had not jurisdiction over the subject-matter or charge, or one
in which, having jurisdiction over the subject-matter, it has failed to observe the
rules prescribed by the statute for its exercise. In such cases, as has just been
said, all of the parties to such illegal trial are trespassers upon a party aggrieved
by it, and he may recover damages from them on a proper suit in a civil court,
by the verdict of a jury.

95

Persons, then, belonging to the army and the navy are not subject to illegal or
irresponsible courts martial, when the law for convening them and directing
their proceedings of organization and for trial have been disregarded. In such
cases, everything which may be done is voidnot voidable, but void; and civil
courts have never failed, upon a proper suit, to give a party redress, who has
been injured by a void process or void judgment. In England, it has been done
by the civil courts, ever since the passage of the 1 Mutiny act of William and
Mary, ch. 5, 3d April, 1689. And it must have been with a direct reference to
what the law was in England, that this court said, in Wise v. Withers, 3 Cr.,
337, that in such a case 'the court and the officers are all trespassers.' When we

speak of proceedings in a cause, or for the organization of the court and for
trials, we do not mean mere irregularity in practice on the trial, or any mistaken
rulings in respect to evidence or law, but of a disregard of the essentials
required by the statute under which the court has been convened to try and to
punish an offender for an imputed violation of the law.
96

Courts martial derive their jurisdiction and are regulated with us by an act of
Congress, in which the crimes which may be committed, the manner of
charging the accused, and of trial, and the punishments which may be inflicted,
are expressed in terms; or they may get jurisdiction by a fair deduction from the
definition of the crime that it comprehends, and that the Legislature meant to
subject to punishment one of a minor degree of a kindred character, which has
already been recognised to be such by the practice of courts martial in the army
and navy services of nations, and by those functionaries in different nations to
whom has been confided a revising power over the sentences of courts martial.
And when offences and crimes are not given in terms or by definition, the want
of it may be supplied by a comprehensive enactment, such as the 32d article of
the rules for the government of the navy, which means that courts martial have
jurisdiction of such crimes as are not specified, but which have been recognised
to be crimes and offences by the usages in the navy of all nations, and that they
shall be punished according to the laws and customs of the sea.
Notwithstanding the apparent indeterminateness of such a provision, it is not
liable to abuse; for what those crimes are, and how they are to be punished, is
well known by practical men in the navy and army, and by those who have
studied the law of courts martial, and the offences of which the different courts
martial have cognizance. With the sentences of courts martial which have been
convened regularly, and have proceeded legally, and by which punishments are
directed, not forbidden by law, or which are according to the laws and customs
of the sea, civil courts have nothing to do, nor are they in any way alterable by
them. If it were otherwise, the civil courts would virtually administer the rules
and articles of war, irrespective of those to whom that duty and obligation has
been confided by the laws of the United States, from whose decisions no appeal
or jurisdiction of any kind has been given to the civil magistrate or civil courts.
But we repeat, if a court martial has no jurisdiction over the subject-matter of
the charge it has been convened to try, or shall inflict a punishment forbidden
by the law, though its sentence shall be approved by the officers having a
revisory power of it, civil courts may, on an action by a party aggrieved by it,
inquire into the want of the court's jurisdiction, and give him redress. (Harman
v. Tappenden, 1 East., 555; as to ministerial officers, Marshall's case, 10 Cr.,
76; Morrison v. Sloper, Wells, 30; Parton v. Williams, B. and A., 330; and as to
justices of the peace, by Ld. Tenterden, in Basten v. Carew, 3 B. and C., 653;
Mules v. Calcott, 6 Bins, 85.)

97

Such is the law of England. By the mutiny acts, courts martial have been
created, with authority to try those who are a part of the army or navy for
breaches of military or naval duty. It has been repeatedly determined that the
sentences of those courts are conclusive in any action brought in the courts of
common law. But the courts of common law will examine whether courts
martial have exceeded the jurisdiction given them, though it is said, 'not,
however, after the sentence has been ratified and carried into execution.' (Grant
v. Gould, 2 H. Black, 69; Ship Bounty, 1 East., 313; Shalford's case, 1 East.,
313; Mann v. Owen, 9 B. and C., 595; in the matter of Poe, 5 B. and A., 681, on
a motion for a prohibition.) A judge, or any person acting by authority as such,
where he has over the subject-matter, and over the person, a general jurisdiction
which he has not exceeded, will not be liable to have his judgment examined in
an action brought against himself; but if jurisdiction be wanting over the
subject-matter, and over the person, such judgment would be examinable.
(Hammond v. Howel, 1 Mod., 184; Garnett v. Ferrand, 6 B. and C., 611;
Moslyn v. Fabugas, Cow., 172; Bonham's case, 8 Co., 114; Greenwell v.
Burwell, 1 Le Roy, 454; by Holt, C. J., 1 Le Roy, 470; Lumley v. Lance, 2 Le
Roy, 767; Basten v. Carew, 3 B. and C., 649. The preceding cited cases relate
to judges of record. As to judges not of record, ecclesiastical judges, Acherly v.
Parkerson, 3 M. and S., 411. Commissioners of court of bequests, Aldridge v.
Haines, 2 B. and Ad., 395. As to returning officer of election, Ashby v. White,
2 Ld. Raym., 941; Cullen v. Morris, 2 Start, 577.)

98

In this case, all of us think that the court which tried Dynes had jurisdiction
over the subject-matter of the charge against him; that the sentence of the court
against him was not forbidden by law; and that, having been approved by the
Secretary of the Navy as a fair deduction from the 17th article of the act of
April 23d, 1800, and that Dynes having been brought to Washington as a
prisoner by the direction of the Secretary, that the President of the United
States, as constitutional commander-in-chief of the army and navy, and in
virtue of his constitutional obligation, that 'He shall take care that the laws be
faithfully executed,' violated no law in directing the marshal to receive the
prisoner Dynes from the officer commanding the United States steamer
Engineer, for the purpose of transferring him to the penitentiary of the District
of Columbia; and, consequently, that the marshal is not answerable in this
action of trespass and false imprisonment.

99

We affirm the judgment of the Circuit Court.

100 Mr. Justice McLean dissented.