113 F. 639 | 8th Cir. | 1902
after stating the case as above, delivered the opinion of the court.
The petitioner, Deming, was an officer of the volunteer force raised under the act of congress of March 2, 1899 (30 Stat. 977, c. '352). He was tried and convicted by a court-martial composed of officers of the
Guided by these familiar and indisputable rules of law, the question whether the volunteer force raised under the act of 1899 was the same force as the regular army, or one of the “other forces” of the United States, within the meaning of article 77, will be considered. That article reads:
“Officers of the regular army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces except as provided in article 78.”
The exception in article 78 relates to the officers of the marine corps, and does not withdraw the appellant or the officers who tried him
‘‘That from and after the date of the approval of this act the army of the United States shall consist of * * * ten regiments of cavalry, seven regiments of artillery, twenty-five regiments of infantry,” and appropriate officers, departments and corps. 30 Stat. 977, c. 352, § 1.
“That to meet the present exigencies of the military service, the president is hereby authorized to maintain the regular army at a strength of not exceeding sixty-five thousánd enlisted men to be distributed amongst the various branches of the service, including the signal corps, according to the needs of each, and raise a force of not more than thirty-five thousand volunteers to be recruited as he may determine from the country at large, or from the localities where their services are needed, without restriction as to citizenship or educational qualifications, and to organize the same into no more than twenty-seven regiments organized as are infantry regiments of war strength in the regular army and three regiments to be composed of men of special qualifications in horsemanship and marksmanship to be organized as cavalry for service mounted or dismounted, * * * provided, further, that such increased regular and volunteer force shall continue in service only during the necessity therefor and not later than July 1st, 1901. All enlistments for the volunteer force herein authorized shall be for the term of two years and four months unless sooner discharged.” 30 Stat. 977, § 12.
That the president shall have power to continue in service or to appoint by and with the advice and consent of the senate certain brigadier generals of volunteers and major generals of volunteers; “provided, that regular army officers continued or appointed as general officers or as field or staff officers of volunteers under the provisions of this act shall not vacate their regular army commissions.” 30 Stat. 977, § 13.
That the president is authorized to appoint, with the advice and consent of the senate, officers of 'the volunteer staff, including 12 assistant commissaries of subsistence with the rank of captain. 30 Stat. 977, §14-
That the officers and enlisted men of the volunteer army shall be mustered out of the military service of the United States and- discharged as provided in the act of April 22, 1898, provided that enlisted men of volunteers who desire to remain in the military service may be transferred to and enlisted in the regular army. 30 Stat. 977, § IS-
It will not be unprofitable to briefly call to mind the course of the legislation, decision, and practice of the nation relative to the matter in hand prior to 1899 before entering upon the discussion of the question which that act and the seventy-seventh article of war present. The American articles of war of 1776 provided that “the officers and soldiers of any troops, whether minute men, militia, or others,” should, when joined with the regular forces, be subject to be tried by courts-martial in like manner with the officers and soldiers in the regular forces, “save only that such courts-martial shall be composed entirely of militia officers of the same provincial corps with the offender.” Davis, Military Daw, p. 617. Section 6 of the act of May 2, 1792, reads in this way': “And be it further enacted, that courts-martial for the trial of militia shall be composed of militia officers only.” x Stat. 264, c. 28. This provision was re-enacted in the act of Febru
Nor is the reason for this legislation and action far to seek or difficult to discern. It was not, as suggested by counsel for the government, that the volunteers and militia were citizens of the states, and that their officers were generally commissioned by the governors. It lies deeper, ánd is more fundamental and potential. It is grounded in that cardinal principle of Anglo-Saxon jurisprudence that no man shall be tried or condemned save by the hearing and judgment of his peers; in that principle which inspired the rule that deprives judges of the power to try persons accused of heinous crimes in civil life, and remits their trial to the forum of their peers, the jury. The officers of the regular army are generally taught in their youth the laws that govern the regular force, that high regard for truth and honor and that prompt and exact obedience to orders which condition its high efficiency. The officers of the volunteers spend their earlier days without knowledge of military law, preparing for agricultural, mechanical, mercantile, or professional pursuits, unaccustomed to military discipline, and exempt from the controlling commands of superiors. The officers of the regular army make the discipline of that army, the preparation for war, and war itself the work of their lives. Their hopes and their aspirations are to excel in this, their chosen profession, and upon it they rely for their livelihood. The officers of the volunteers look to civil pursuits for their ultimate success and sustenance. They leave these pursuits for a few short months at the call of their country to subdue a rebellion against or to defeat an enemy of their nation. They seek not so much to discipline the army they join, and to prepare it for war, as to speedily conclude the war, restore peace, and return to their chosen pursuits. Their hopes and aspirations center, not in their temporary occupation, but in the pursuits they have left, and to which they are soon to return. More than all this, the officers of the regular army know the unwritten code of military thought and action, and the habit of the trained soldier’s life, and know them so well that their practice is involuntary, while a neglect of them seems inexcusable. The officers of the volunteer force come to the army in ignorance of this code and custom. They have short timé to learn or to practice them. Their invariable practice does
This, then, was the situation when the act of April 22, 1898, under which a judge advocate general first held that officers of the regular army could lawfully sit on courts-martial to try the officers and soldiers of the volunteer force, was passed. The acts of congress had prohibited for nearly a century, and still expressly forbade it. ■ The decisions and the practice of the officers of the war department interdicted it. The established policy of the nation inhibited it. In the light of this legislation, decision, and policy the acts of 1898 and 1899 must be read and construed. What was there in these acts to repeal the statutoi'y inhibition and reverse the public policy of a century? The decisions, the policy, and the practice rested on the acts of congress, and certainly nothing less than an express repeal by that body of the plain inhibition of article 77, or such legislation as clearly shows the undoubted intention of congress to strike it down, ought to be permitted to withdraw it, and to reverse the policy and practice of so many years.
Tlxe first argument in support of the contention of the government that the acts of 1898 and 1899 have had this radical effect is that, while the volunteer army was one of the “other forces” than the regular army under article 77, prior to the act of 1898, that act made it the same force as the regular army, because it provides that the organized and active land forces of the United States shall consist of the army of the United States and of the militia of the several states when called into the service of the nation; that the regular army is the permanent military establishment, which is maintained in peace and war, and that the volunteer army is maintained only during the existence of war, or while war is imminent, and is raised and organized only after congress authorizes the president so to do. 30 Stat. 361, c. 187, §§ 2-4. They insist that this enactment declares that there were but two forces of the United States, — the army and the militia, — and that, as the regular army was one part of the former force and the volunteer army was
"See. 5. That when it becomes necessary to raise a volunteer army the president shall issue his proclamation stating the number of men desired.
“Sec. 6. That the volunteer army and the militia of the states when called into the service of the United States shall be organized under, and shall be subject to, the laws, orders and regulations governing the regular army.
“Sec. 7. That all organizations of the volunteer army shall be so recruited from time to time as to maintain them as near to their maximum strength as the president may deem necessary.”
Sec. 8. That all returns and muster rolls of the volunteer army “shall be rendered to the adjutant general of the army and filed in the record and pension office of the war department.”
“Sec. 9. That in time of war, or when war is imminent, the troops in the service of the United States, whether belonging to the regular or volunteer army or to the militia, shall be organized” into divisions of three brigades.
Section 10 relates to the staff officers.
Sec. 11. That the president is hereby authorized to appoint in the volunteer army “one major general for each army corps or division and one brigadier general for each brigade,” and any officer so selected and appointed from the regular army shall be entitled to retain his rank therein.
“Sec. 12. That all officers and enlisted men of the volunteer army and of the militia of the states when in the service of the United States, shall be in all respects on the same footing as to pay, allowances, and pensions as that of officers and enlisted men of corresponding grades in the regular army.
“Sec. 13. That the governor of any state or territory may, with the consent of the president, appoint officers of the regular army in the grades of field officers in organizations of the volunteer army, and officers thqs appointed shall be entitled to retain their rank in the regular army.
“Sec. 14. That the general commanding a separate department or a detached army is authorized to appoint from time to time military boards of not less than three nor more than five volunteer officers of the volunteer army to examine into the capacity, qualifications, conduct and efficiency of any commissioned officer of said army within his command.”
These various sections are utterly inconsistent with the view that the volunteer army was made the same force as the regular army, and that all distinctions in the treatment and trial of the members of the two forces were stricken down by the casual enumeration of the active land forces of the nation in the first section of the act. If the volunteer army was the regular army, why the declaration in section 6 that
Another reason why the argument based upon the classification in the first section of this act is not persuasive is that it is fallacious. Stated in syllogistic form, it is: The land forces are composed of the army and the militia. The army is composed of the regular army and the volunteer army. Therefore the volunteer force is the regular force. When thus stated, the fallacy is apparent. The contention is based on the false assumption that every part of a military force is the same part as every other part; that every species of a genus is the same as every other species of that genus; that every class properly described by a generic term is the same class as every other class covered by that term. Illustrations make the fallacy plain. Oranges and apples are fruit, yet oranges are other fruit than apples. The Russians and Americans are people, and yet the white Americans are other people than the black Americans. The cavalry, infantry, and artillery of the regular army is a military force, and yet the cavalry and infantry are other forces than the artillery. So the regular army and the volunteer army, under the classification of 1898, constitute a force, and yet the volunteer army, both in fact and within the meaning of article 77, is another force than the regular army.
Again, even if the contention of counsel for the government were conceded, it would but serve to strengthen the position that the petitioner, wdio was commissioned under the act of 1899, was a member of other forces than the regular army. The argument rests entirely on the declaration of the act of 1898 that the army of the United States is composed of the regular army and the volunteer army, and that the land forces consist of the army and the militia. The act of 1899 contains no such classification, but, on the other hand, expressly declares
Counsel for the government advance another argument in support of the contention that the volunteers, under the acts of 1898 and 1899, were not other forces than the regular army. It is that the law and the practice upon this subject during the war of the Rebellion were established to prevent state troops from being tried by the officers of the regular army; that the volunteers during that war were raised by the states, and officered by their governors; and that their regiments were designated by the names of the states from which they came, while the volunteers called under the acts of 1898 and 1899 were raised under a different system, were not so nearly assimilated to the militia, and that those received under the act of 1899 were not apportioned to or raised by the states, their regiments were not designated by the names of the states, but, like the regulars, they were enlisted from the country at large, their regiments took numbers supplemental to those of the regiments of the regular army, and their officers were appointed, not by the governors, but by the president. This contention, in our opinion, is based on a misconception of the real reason which inspired the legislation and the policy which for so many years has prohibited the trial of volunteers by regulars. That reason was, not that the volunteers were state troops and the regulars national troops, that the volunteers were raised by the states and their officers were appointed by the governors, while the regulars were raised by the nation and their officers were commissioned by the president. It was, as has been shown in an earlier part of this opinion, that the knowledge, training, habits, hopes, and ambitions of the officers of the regular army, who had devoted themselves for life to the discipline and efficiency of that force, necessarily conditioned their opinions of the heinousness of military offenses; and these opinions, this knowledge and training, these hopes and ambitions, differed so widely from those of the officers of the volunteer force, who came from civil life, for a limited time, ignorant of military law and of the customs and practices of a soldier’s life, and anxious to speedily return to their civil occupations, that congress established the rule that the former should not be competent to sit on courts-martial for the trial of the latter. The reason of this rule applies to the volunteer force raised under the act of 1899 with as much force as to those raised during the war of the Rebellion.
Finally, it is contended that the provision of section 6 of the act of April 22, 1898, “that the volunteer army and the militia of the states when called into the service of the United States shall be organized under, and shall be subject to, the laws, orders and regulations governing the regular army,” indicates that the volunteer army and the
The result is that when the acts of 1898 and 1899 were passed there was an article of war in force enacted by congress which expressly prohibited the officers of the regular army from sitting on courts-martial to try the officers or soldiers of other forces. Prior to the passage of these acts the volunteer force was in fact, and had been uniformly held to be, one of these other forces, so that in law and in practice this article of war forbade the officers of the regular army to try the officers or soldiers of the volunteers. There is no express repeal or modification of this inhibition in the acts of 1898 and 1899. There is nothing in these acts repugnant to or inconsistent with the prohibition, nothing to show that congress intended thereby to withdraw or to change it, but strong indications, in the marked distinction it studiously maintains between the regular army and the volunteer army, and in the fact that it provided for military boards composed entirely of officers of the volunteer army to examine into the efficiency and qualifications of the volunteer officers, that it intended to preserve and to maintain the inhibition. The reason which inspired this legislation and the policy and practice it evidences apply with all their cogency and force to the officers and soldiers of the volunteer force raised under the act of 1899. These facts and the considerations to which we have adverted have irresistibly forced our minds to the conclusion that the volunteer force raised under the act of 1899 was not the same force as the regular army, but that it was one of the “other forces” specified in article 77, and that the officers of the regular army were forbidden by that article to sit on any court-martial to try the petitioner, who was an officer of the volunteer force raised under the act of 1899.
It is insisted, however, that, if the members of this court-martial were disqualified to try the petitioner, that objection was waived, because not made at the trial, and the judgment was not void, but merely erroneous and voidable, so that it was impregnable to collateral attack by the writ of habeas corpus. A writ of habeas corpus cannot be made to perform the office of a writ of error, but it is the proper process to challenge a void judgment and to relieve the defendant from its baleful effect. It may not be invoked to review and avoid an erroneous judgment of which the court had jurisdiction, but it is always effective to relieve a prisoner from the restraint imposed by a judgment that is absolutely void. In re Reese, 47 C. C. A. 87, 107 Fed. 942, 948; Ex parte Buskirk, 72 Fed. 14, 21, 18 C. C. A. 410, 417, 25 U. S. App. 613, 615; Ex parte Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed. 216; Ex parte Fisk, 113 U. S. 713, 718, 5 Sup. Ct. 724, 28 L. Ed. 1117; Dynes v. Hoover, 20 How. 81, 83, 15 L.
Ret us now measure the contention that the judgment of this court-martial, which condemned the petitioner to dismissal and imprisonment, was not void, but was merely irregular or erroneous, by these indisputable principles. The eighty-eighth article of war reads:
“Members of a court martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and*651 validity thereof and shall not receive a challenge to more than one member at a time.”
The acts of congress make no provision for a challenge to the array, and point out no method whereby the question of .the disqualification of all the members may be determined in the first instance by any.one but the members of the court themselves challenged one by one. It is said that a court-martial is like' a jury; that the reviewing officer occupies the place of a judge; that the disqualification of a juror, if not suggested at the trial, is waived, and does not render the verdict void (Kohl v. Lehlback, 160 U. S. 293, 16 Sup. Ct. 304, 40 L. Ed. 432; Clark v. Van Vrancken, 20 Barb. 281; In re Voorhees, 6 Op. Atty. Gen. 206); and that the judgment of this court-martial ought not to be held void because all its members were incompetent to sit upon it. But in the essentials of the issue the analogy does not hold. The question of the qualification of triors arises in limine. It is to be determined before the trial commences. In the case of a trial by jury, the judge, not the jury, determines the qualifications of the jurors; while in a trial by a court-martial the members of the court must determine their own qualifications, and, if all the members are incompetent to sit in the court at all, how can they be competent to decide that they are either competent or incompetent to act there? Moreover, a jury decides nothing but questions of fact, while the members of a court-martial determine both the law and the facts. This argument by analogy is not persuasive. Indeed, the analogy between the judgment of a court-martial and the judgments of courts composed of disqualified judges is much closer. All the members of this court-martial were disqualified. It was a court of inferior — of limited — jurisdiction. Why should its judgment have more virtue than those of courts of general jurisdiction some of whose judges are incompetent to sit? Yet the general rule, supported by the great weight of authority, is that the judgments of such courts are void, and that neither waiver nor consent can give them validity. Case v. Hoffman, 110 Wis. 314, 356, 75 N. W. 945, 44 L. R. A. 728; Oakley v. Aspinwall, 3 N. Y. 547, 552; Low v. Rice, 8 Johns. 409; Clayton v. Per Dun, 13 Johns. 218; Edwards v. Russell, 21 Wend. 63; People v. Connor, 142 N. Y. 130, 133, 36 N. E. 807; Chambers v. Clearwater, *40 N. Y. 310, 314; Sigourney v. Sibley, 21 Pick. 101, 106, 32 Am. Dec. 248; Gay v. Minot, 3 Cush. 352; Hall v. Thayer, 105 Mass. 219, 224, 7 Am. Rep. 513; Railway Co. v. Summers, 113 Ind. 10, 17, 14 N. E. 733, 3 Am. St. Rep. 616; Ochus v. Sheldon, 12 Fla. 138; Chambers v. Hodges, 23 Tex. 112; Gains v. Barr, 60 Tex. 676, 678; Templeton v. Giddings (Tex. Sup.) 12 S. W. 851.
The insuperable objection, however, to the jurisdiction of this court-martial and to the validity of its sentence is that the officer who called it was not only unauthorized, but was positively forbidden by act of congress, to constitute it of the officers of the regular army, to detail these officers to sit upon it; and when these officers were so detailed they were in like manner prohibited from responding to the call and from becoming members of the court. The order convening the court-martial declared that the purpose of its call was “for the
The judgment below must accordingly be reversed, and the case must be remanded to the circuit court, with directions to issue the writ of habeas corpus, and to proceed in accordance with the views expressed in this opinion; and it is so ordered.