#### DENNIS W. MULLAN v. THE UNITED STATES.

[No. 22822.

Decided February 18, 1907.]

*On the Proofs.*

An officer in the Navy requests the Secretary to refer certain charges against himself to a court of inquiry. The finding of the court of inquiry being adverse, he requests the Secretary to grant a court-martial. The Secretary does so, but on condition *“ that the record of such court of inquiry he accepted*as *evidence in the case, each of the parties to the trial to have the privilege of introducing other evidence.”*The officer agrees to this and raises no objection at the trial to the condition imposed and calls a witness. The decision of the court-martial is that the officer be dismissed. The sentence is mitigated by the President so as to suspend the officer from rank and duty on half sea pay for five years. This suit is to recover the difference in pay, and it involves the legality of the court-martial.

I. Civil courts are precluded from setting aside or reviewing the proceedings and sentences of courts-martial where it affirmatively appears that they are legally constituted and had juris-dication of the. offense charged.

IX. It is provided by the Revised Statutes (§ 1624, art. 60) that the proceedings of courts of inquiry “ *shall in all cases not capital nor extending to the dismissal of a commissioned or warrant officer, he evidence before a court-martial, provided oral testimony can not he obtained.”*

*158III. Tlie provision of the Revised Statutes (art. 60) was to so limit and circumscribe the proceedings of courts-martial as to secure the accused the right to be confronted with the witnesses against him in capital eases and in cases where he may be dismissed from the service. It is not mandatory and may be waived.

IY. The statute (art. 60) is not a limitation upon the jurisdiction of a court-martial.' It is merely a regulation as to its proceedings, securing certain rights to the accused which he may waive.

Y. It is a privilege and not a right that a naval officer shall have charges against him investigated by a court of inquiry and again by a court-martial. The Secretary of the Navy is invested with power to convene a court-martial at the request of an officer, but also with discretion as to whether it shall be convened.

VI.The question of waiver is usually one of fact. A person may waive the advantage of a law intended for his benefit where the waiver will not affect or contravene the rights of others.

VII.The evidence adduced before a court of inquiry is surrounded by all the solemnities of evidence taken in a court of record or before' a court-martial.

VIII.The action of the Secretary of the Navy allowing a court-martial upon condition that the evidence taken before the court of in-. quiry should be admitted did not constitute duress. The officer was free to decline the condition or to introduce other evidence.

IX.Article 54 of section 1624, Revised Statutes, which authorizes officers who have authority to convene a general court-mar-tiol “ *to remit or investigate but not to commute the sentence of any such court,"*has no application to the President.

*The*Reporters’ statement of the case:

The following are the facts of the case as found by the court:

I. The claimant is a citizen of the United States, a resident of the city of Annapolis, State of Maryland, and a commander on the retired list of the United States Navy.

II. From July 30, 1896, until March 7; 1897, the claimant, then holding the rank of commander, United States Navy, was serving as commandant of the navy-yard at Pensacola, Fla. During this period certain charges of drunkenness were preferred against him to the Navy Dexiartment. The claim*159ant upon learning of the fact requested the Navy Department to convene a court of inquiry to investigate'the same. Complying with his request, the Navy Department did, on May 25, 1897', convene a court of inquiry at the Pensacola Navy-Yard, which court took the testimony of witnesses and submitted to the Navy Department the record of its proceedings and a finding adverse to the claimant.

III. The .claimant was, at the time said adverse report was submitted by this court of inquiry, subject to early examination for promotion to the grade of captain. The provisions of law relative to examining boards require that if it shall appear that the applicant is unable, by reason of drunkenness or any cause arising from his own misconduct, to perform at sea the duties of the position to which it is proposed to promote him, lie shall not be placed on the retired list, but discharged, with not more than one year’s pay.

IY. The. claimant, by letter of May 19, 1897, requested the Secretary of the Navy to order a court-martial for the purpose of trying s'aid charges. This letter is as follows:

“ 1420-F Steeet, *Washington, D.*<7., *May 19,1897.*

“ Sir : Having received from you, on the 15th instant, a copy of the findings of fact submitted to you by the court of inquiry which was ordered at my request, and which met at the Pensacola Navy-Yard on March 25 last, and your approval of the same, and having considered the memorandum signed by the Judge-Advocate-General, I respectfully request that a court-martial be ordered to try such charges as may be formulated from the findings of the court of inquiry, so that an opportunity may be afforded to try and determine such issues of fact before a naval court having full judicial powers.

“ The findings of the court of inquiry and your approval of them being a part of the record of my naval service, render it a matter of great consequence to me that whatever statement in this record may be detrimental to my record as an officer should be investigated and passed .upon by the highest tribunal known to military law.

“ Very respectfully,

“ D. W. Mullah,

*“Commander, United States Navy-.*

“ Hon. JohN D. LoNG,

*“Secretary of the Navy.”*

*160Reporters’ statement of the case.

Y. May 25, 1897, the Secretary of the Navy responded'to the claimant’s request as follows:

“ Navy DepaetmeNT,

“ Washington, *May 25, 1897.*

“Sie: The.Department has received and considered your communication of the 19th instant, in which you request that a court-martial be ordered to try such charges as may be formulated from the findings of the court of inquiry recently in session at the navy-yard, Pensacola, Fla.

“ In reply, you are informed that, after carefully considering the matter, the Department has decided, in view of the difficulty of assembling a court composed, as it should be, of your seniors at so distant a station as Pensacola, and of collecting all the witnesses at a more convenient point, that it will convene a general court-martial at the navy-yard, Washington, for your trial upon such portions of the findings of the court of inquiry as it deems proper to charge against you (see art. 1778, U. S. Navy Kegulations, 1896), provided that the record of such court of inquiry be accepted as evidence in the case, each of the parties to the trial to have the privilege of introducing other evidence. '

“ You will acknowledge the receipt of this communication, and state whether or not you accede to the foregoing proposition.

“ Very respectfully,

“ Joi-in D. Long, *Secretary.*

“ Commander DeNNis W. Mullan, U. S. Navy.

“(Care Messrs. McCammon & Hayden,

“ 1420 F street NW., Washington, D. C.

VI. On June 2, 1897, the claimant answered as follows:

“ 1420 F Steeet,

“ *Washington, D. 0., June 2,1897.*

“ Sie : I have the honor to acknowledge the receipt of your letter of the 25th instant, relative to my request for a court-martial, stating that the Department will convene a general court-martial at the navy-yard at Washington for my trial, etc., ‘ provided that the record of such court of inquiry be accepted as evidence in the case, each of the parties to the trial to have the privilege of introducing other evidence.’ You desire me to state whether or not I accede to the foregoing proposition. In reply, I beg to say that I will agree that the testimony taken before the court of inquiry may be accepted by the court-martial, subject not only to the legal objections made to the questions propounded by both the *161judge-advocate and my counsel,'but also to such other legal objections as may be made to such testimony before the court-martial ; and it is to be understood that the right of ‘ each of the parties to the trial to have the privilege of introducing ^ other evidence ’ shall include the right of each of the parties to recall any of the witnesses who gave testimony before the court of inquiry, and also the right to take testimony by written interrogatories-and cross-interrogatories. It is to be further understood that so much of the record of the court of inquiry as contains its findings of fact and the action of the Secretary thereon, and the memorandum of the Judge-Advocate-General, shall be excluded, and shall not be sent to nor considered by the court-martial.

“ Believing that these suggestions of mine are within the general scope of your proposition, and are necessary to my full and fair trial, I respectfully request your acquiescence in the same, in which case I shall accede to your proposition contained in the Department’s letter of the 25th instant, amended as above by me.

“ Very respectfully,

“ D. W. Mullan,

“ *Commander, United States Navy.”*

VTI. On June 8, 1897, the Secretary of the Navy replied as follows:

“ Navy Department,

“ *Washington, June 8, 1897.*

“ SiR: In reply to your communication of the 2d instant, you are informed as follows:

“ 1. Referring to your statement that you will agree that the testimony taken before the court of inquiry may be accepted by the court-martial, subject not only to the legal objections made to the questions propounded by both the judge-advocate and your counsel, but also to such other objections as may be made to such testimony before the court-martial, should one be ordered, I have to state that these are matters for the determination of such court.

“ 2. Your request that each of the parties shall have the right to recall any of the witnesses who gave testimony before the court of inquiry is denied. In the brief submitted to the Department by your counsel it is stated:

“ ‘ * * * It is evident from the large number of witnesses and the thoroughness of the examination that it would be scarcely possible to have more evidence adduced before a court-martial than was presented, to the court of inquiry.’

*162“‘ * * * No court-martial or other military or civil tribunal could have béen or could be more successful in eliciting all facts bearing upon Commander Mullan’s conduct.

“ 3. Depositions taken, as you suggest, by written interrogatories and cross-interrogatories are not admissible as evidence before naval general courts-martial.

“ 4. The findings of fact by the court of inquiry, the action of the Department thereon, and the memorandum of the Judge-Advocate-General will not be sent to the court-martial. It.may be added that the printed brief of your counsel, which has become a part of the record of the case, will be similarly withheld.

' *“*You will give this letter your immediate attention, as the Department has determined that there must be a speedy end to the matter.

“ Very respectfully, Joi-iN D. Long, *¡Secretary.*

“ Commander Dennis W. Mullan, U. S. Navy.

“ (Care Messrs. McCammon & Hayden,

“ 1420 F street NW., Washington, D. C.)”

VIII. On June 9, 1897, the claimant acceded to the terms imposed by the Navy Department by the following letter:

“ 1420 F STREET,

“ 'Washington, *D. 0., June 9,1897.*

“ Sir : I have- the honor to acknowledge the receipt of your communication of the 8th instant, and I respectfully inform the Department that I accede to the conditions therein recited, and ask that a court-martial may be ordered, as contemplated in your letter of May 25, 1897.

“ Very respectfully,

“ D. W. Mullan,

“Commander, *United States Navy.*

“ The Secretary oe ti-ie Navy.”

IX. In pursuance of the foregoing correspondence, a general court-martial was ordered by the Secretary of the Navy to convene at the navy-yard, Washington, D. C., to try the claimant upon certain charges and specifications.

At the convening of said court, preliminary to the introduction of evidence in the case, the Judge-Advocate presented to the court the letters between the Secretary of the Navy and the claimant, set forth in paragraphs 4 to 8, both inclusive, of the findings of fact, and the same were spread upon the record of proceedings of said court. Said court *163convened on June 15,1897, and held sessions on that and succeeding days, when was produced the testimony of 50 witnesses, the testimony of 49 of said witnesses having .been taken before the court of inquiry above referred to, which testimony ■ was admitted in evidence in pursuance of the agreement made between the claimant and the Secretary of the Navy and was not objected to by the claimant at the trial. The claimant was represented before the court of inquiry and before the court-martial by counsel.

X. The only witness produced before said court-martial was Paymaster-General Edwin Stewart, U. S. Navy, who testified that he had never seen claimant take a drink, and in respect to specification 4 of charge 2, that on one occasion, at the Pensacola Navy-Yard, at a time when the claimant was charged with *“*drunkenness on duty ” — ■“ his conversation was coherent and his manner courteous;” that witness had the impression “ that he had been drinking ” — “ there was some slight thickness of articulation which impressed me,” but “ as I had never seen him take a drink in my life, I am somewhat reluctant to assert positively that he was under the influence of liquor.”

XI. Claimant was tried upon two charges of drunkenness and drunkenness on duty, each containing six specifications. Upon the evidence so submitted, said court-martial found the claimant guilty of both charges as alleged and sentenced him to be dismissed from the Navy. This sentence was approved by the Secretary of the Navy on June 30,1897, and submitted to the President, who, on July 8, 1897, issued the folowing order:

*“*Executive Mansion, *July 8, 1897.*

“ The sentence in the foregoing case of Commander Dennis W. Mullan, U. S. Navy, is confirmed, but is mitigated as follows : To be reduced in rank, so that his name shall be placed at the foot of the list of commanders in the Navy", and to be suspended from rank and duty, on one-half sea pay, for a period of five years, during which time he shall retain his place at the foot of said list.

“ William McKiNLey.”

In accordance with said order, the claimant was paid between July 8,1897, and June 30, 1899, at the rate of $1,750 per year, being one-half sea pay under Revised Statutes, *164section 1556, and. between July 1, 1899, and July 11, 1901, at the rate of $2,000 per year, being one-half sea pay under the navy personnel act of March 3, 1899. The difference between such pay and waiting orders pay for the same period is as follows:

WAITING ORDERS PAY.

Under Revised Statutes, United States:

July 8, 1897, to June 30, 1898_$2, 255. 77a

July 1, 1898, to June 30, 1899_ 2, 300. 00

Under navy personnel act:

July 1, 1899, to June 30, 1900_ 3,400. 00

July 1, 1900, to June 30, 1901_ 3, 400. 00

July 1, 1901, to July 11, 1901_ 102. 41

- $11, 458.18

PAY RECEIVED.

Under Revised Statutes, United States:

July 8, 1897, to June 30, 1898_ 1, 716. 35

July 1, 189S, to July 1, 1899_ 1, 750. 00

Under navy personnel act:

July 1, 1899, to June 30, 1900_ 2, 000. 00

.Tule 1, 1900, to June 30, 1901_ 2, 000. 00

July 1, 1901, to July 11, 1901_ 58. 09

- 7, 524. 04

Difference in pay__ 3, 934.14

XII. That the claimant, after- the action of said court-martial, both before and after the approval of its findings by the President of the United States, protested against the illegality of these proceedings, as a result of which protest on July 11, 1901, the unexpired period of his sentence was remitted by order of the President.

*Mr. W. E.*Richardson, for the claimant. *Mr. J. H. Ral-ston*and *Mr. F. L. Siddons*were, on the brief:

If the objection now collaterally made related merely to the error of the court in admitting incompetent and inadmissible evidence, we are fully aware that this court could hot consider it. The present case, however, is one wherein the error lies deeper. The accused goes into court with -a waiver of this right forced from him. The court itself is created under statutory authority by the officer who has required him to waive these rights, and the agreement between the officer, upon whose order the court depends for its existence, and the accused is made a part- of the records of the *165court before the trial commences. It is thus incorporated in the proceedings and is in reality an amendment of and a part of the order creating the court. If it be true that a portion of the order establishing a court-martial is void as against public policy and in violation of law, can that court, proceeding thereunder, exercise any function of a legally constituted court-martial ?

The effect of an agreement made by the head of an Executive Department whereby an employee for no additional consideration waived a statutory right was considered by the Supreme Court in the case of *Gla/oey*v. *United*States, 182 U. S., 595, and held to be against public policy and void. Moreover, in the present case the rights waived by the claimant were not merely his statutory rights but of such a character that he had no power to waive them, nor had the Secretary of the Navy the right to disregard them. The establishment and maintenance of the Navy is a matter of vital interest and consequence to the Government and to the whole people of the United States. The result of the action against Commander Mullan was possibly to force from the naval establishment against his own volition an' officer whose tuition at the expense of the Government and long years of experience had made his services valuable.

Congress, by prescribing the manner of proceedings extending to dismissal of officers who can and are willing to render valuable service, has made a provision which protects not only the officer but the people of the United States, and it is not competent for anyone to waive that provision except the people of the United States speaking through their legislative body.

Under no system of law — the existence of this court depending wholly upon the Constitution and statutes of Congress — there can be no such thing as a de facto court-martial. *(.Hickman*v. Jones, 76 U. S., 197; *Hildreth*v. Molntire, 24 Ky. (1 J. J. Marsh), 206; *PerJcins*v. Corbin, 45 Ala., 103; 3 Am. Rep., 698; *Tompkins*v. Makwin, 26 Ark., 586; 7 Am. Rep., 628; *Snyder*v. Snyder, 3 W. Va., 200.)

This point was directly determined in *Denting*v. *Mc-*Claughry, 186 U. S., 49, where the officers named in the order were not, under the statutes., eligible to try the accused. In *166that case it was further held that consent of the accused can not confer jurisdiction where there is a defect in the organization of the court.

The defense contend that the provision disregarded in Commander Mullan’s trial was a mere statutory provision in his favor which, if waived, permitted the court to proceed. This contention must necessarily fail if it be true, as indicated above, that the provision protects not merely the officer but the State. The language of the section is that the proceedings of courts of inquiry “ shall, in all cases not capital nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court-martial, provided oral testimony can not be obtained.”

In the case of *Glavey*v. *United*States, 182 U. S., 595, it was held that an agreement to waive part of a statutory salary, required of an officer prior to appointing him to the office, was void on grounds of public policy. *(Miller*v. *United*States, 103 F. R., 415.)

The President’s confirmation of the sentence of a court-martial is one of the “ statutory regulations,” the failure to execute which in conformity with law will render the judgment subject to collateral attack.

Upon this branch of the case the sole question before the court for determination is, we insist, whether the sentence . imposed by the President on revision of the proceedings is in violation of article 54 of section 1624, Revised Statutes of the United States. That article gives power *“*to remit or mitigate, but not to commute the sentence.”

The Department attempts to justify the order of the President in this case by the statement that it is “ in accordance with naval practice.”

Were the practice uniform, no length of time can give legality to the erroneous construction of a law. It is only where the interpretation is doubtful that long settled and uniform interpretation by the Executive Departments can be invoked in aid of their action.

Section 112 of the Articles of War, applicable only to the Army, gives to the reviewing authority the power to pardon or mitigate, except in cases where the penalty of death or dismissal has been imposed.

*167Bouvier defines “ mitigation ” as “ reduction; diminution; lessening of the amount of a penalty or punishment.”

Commutation of a sentence is “ a change of one punishment known to the lay for another and different punishment also known to the law.” “ The substitution of a less for a 1 Nev., 321; *Lee*v. *Murphy,*22 Grat., 798.)

To commute is defined “ to exchange for one penalty or punishment another less severe.” *(Rich*v. *Chamberlain,*107 Mich., 381. See also *Ex parte*Parker, 106 Mo., 551; *Ex parte*Collins, 94 Mo., 22; *State*v. *State'Board of Corrections,*16 Utah, 478; *Young*v. *Young,*61 Tex., 191; *State*v. *Peters,*43 Ohio St., 629.)

“ Commutation ” is a term having a narrower and much more clearly defined signification than “ mitigation.” It is also a term which has received a repeated and uniform interpretation by the courts, so that no doubt of its peculiar significance can be entertained by the court.

The use of the term in so direct juxtaposition with the term “ remit ” and “ mitigate ” in the statute under construction shows that Congress had the' distinction clearly in mind. Its purpose was to preserve in the Executive the pardoning power and to add to that power the right to diminish the amount of punishment by mitigation — in reality a remission of ¡Dortion of the punishment made in advance of performance by the defendant and therefore a corollary of the pardoning power. But the statute also had in view the protection of the judicial power of the court-martial from encroachment on the part of the executive officers so constituted the reviewing authority, by the substitution of a punishment different from the character of that awarded by the court, and undoubtedly in some instances the imposition of a penalty which the court would not have imposed in the particular case.

The trouble and delay of rereferring the disapproved sentence to the court may be regarded by the Department as a serious obstacle, but its duty is to execute the law as Congress has made it — not to substitute its own view of what should have been enacted..

The action of the President clearly can not be sustained as a conditional pardon under the pardoning power. Aside *168from the implied inhibition in article 60, such a condition as was imposed in this case would be illegal and void as opposed to public policy.

A conditional pardon of this nature is a contract between the parties. *(People*v. Potter, 1 Edm. Sel. Cas. (N. Y.), 235; *State*v. *Smith,*1 Bailey L. (S. Car.), 286; 19 Am. Dec.) 679; *Lee v.Murphy,*22 Grat. (Va.),791; 12 Am.Rep., 563.)

A contract between the Executive for the acceptance of a sum less than the statutory salary attached to his office is void, and the officer may recover full pay. *(Glavey*v. *United States,*182 U. S., 595.)

*Mr. George M. Anderson*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants:

After having obtained the full benefit of the court-martial which he had requested, after having gone to trial without objection to the evidence produced, it would certainly seem inequitable at this late date, if it were not directly opposed to both the spirit and letter of the law, to allow the claimant to take advantage of his silence, which, in view of all the facts, would certainly amount to a fraud upon the Government.

Upon the claimant’s right to waive the benefits of article 60 of section 1624 of the Devised Statutes, see also the cases of *Tombs*v. *Rochester and Syracuse Railroad Company,*18 Barber (N. Y.), 585; *Phyfe*v. *Rimer,*45 N. Y., 104; *White*v. *Connecticut Mutual Loan Insv/rance Company,*4 Dill., 183; *Beecher*v. *Marquette, etc., Rolling Mills,*45 Mich., 108.

Without considering at this time whether article 54 was intended to apply to the President or not, attention is called to the fact that the loss of pay, upon which this claim is founded, arose, not out of the claimant’s reduction in numbers, but out of his suspension from active duty upon half sea pay. Therefore, the question for the court to consider is, whether his suspension was a mitigation or a commutation of the sentence of dismissal. *(United States*v. *Murray,*100 U. S., 537; *Llenry II. Stillings*v. *United States.)*

If a suspension or furlough has been held by the courts to be a partial dismissal, then both may very properly be considered as in mitigation and not in commutation of a sentence of dismissal.

*169The complaint that the claimant makes upon this point in his case arises from the fact that the President, instead of allowing his sentence of dismissal by the court-martial to stand, allowed him to remain in the Navy upon half sea pay, and this notwithstanding the fact that he accepted the terms of the mitigation of his sentence when he could have declined just as easily. Certainly, if the President had the right to approve the sentence of the Court-martial, of dismissal without pay, he had the right to suspend the claimant upon half pay.

The Court of Claims can in no sense be termed an appellate court. It has no authority to review or consider the action taken by any other court. It is, in fact, a court of original jurisdiction, and can only act where there is a claim due to some person by the United States. It has no authority to correct mistakes of other tribunals. Therefore, even though evidence should have been improperly admitted at the trial by the court-martial, this court has no authority to review or correct the action of that court.

Even granting that this court has appellate jurisdiction, the fact that the attorneys for the claimant made no objection to either the jurisdiction of the court-martial or to the admission of the evidence produced before it at the trial, would prevent the claimant from taking advantage of that jurisdiction.

The Court of Claims has jurisdiction to consider only a claim against the United States involving a sum of money alleged to be due to some person named therein as the claimant. The court has no equity jurisdiction to correct the errors or mistakes either of individuals or courts-martial. (Am. and Eng. Enc. of L., vol. 17, p. 1042; *Id.,*p. 1072; *McGlaughry*v. Deming, 186 U. S., citing *Swaim'v. United*States, 165 U. S., 553; *Garter*v. McGlaughry, 183 U. S., 365.)

The language used by the Supreme Court in the above case is directly applicable to the case at bar, as the court-martial had full and complete jurisdiction of both tlie person and the subject-matter of the charge against the defendant; and this jurisdiction was further fortified by the consent of the defendant to his trial upon the terms proposed by the Secretary of the Navy.

*170While the President, when he reviews and confirms the sentence of a general court-martial, exercises certain functions of Executive authority conferred upon him in his constitutional capacity as Commander in Chief of the Navy, and exjmessly by certain statutes, which make, for example, dismissal dependent upon his action, the fact that he possesses these constitutional and statutory powers does not operate to deprive him of another and distinct function, vested in him, not as Commander in Chief of the Navy, but as Chief Executive of the nation and the possessor of the pardoning power, inherited as part of the royal prerogative. He may act at the same time in the exercise of both authorities. Pie may approve a sentence under the first-mentioned branch of his authority, and then, having confirmed the sentence, he may, in the exercise of his pardoning power, immediately, as Chief Executive, remit or mitigate, in whole or in part, absolutely or conditionally, the penalties imposed by the sentence of the court-martial. The officer under sentence is not compelled to accept a conditional pardon; but if he does, however, accept it, he accepts it with any ordinary, usual, or appropriate conditions imposed by the President in the exercise of his pardoning power.

“ It has already been stated that there may be annexed to a pardon any condition which is not immoral, illegal, or' impossible of performance. (Am. and Eng. Enc. of Law, p. 580.)

“ Where a conditional pardon has been granted and ac-cej>ted, and the convict has fulfilled the conditions thereof, the effect of the pardon becomes the same as though it were bjr its terms full and absolute. *(Id.,*595.)”

The contention of the claimant that the President had no authority to modify his sentence of dismissal, but should have confirmed the verdict of the court-martial, is absurd. The claimant, having taken advantage of the Executive clemency, is now estopped from denying the validity of the action of the President.

Booti-i, J.,

delivered the opinion of the court:

Commander Mullan, the claimant herein, while serving as commandant at the navy-yard at Pensacola, Fla., learned of certain accusations of misconduct having been preferred *171against him to the Navy Department. Desiring to refute the same, he requested the Navy Department to refer them for investigation to a court of inquiry. Complying with his request, the Navy Department ordered a court of inquiry to be convened at the navy-yard at Pensacola, Fla., for the purpose of investigating the same. The result of the court of inquiry’s investigation was a finding adverse to the claimant. Not' being satisfied with the finding of the court of inquiry, claimant again appealed to the Navy Department requesting the Secretary of the Navy to convene a court-martial for an investigation of said charges. Complying with this request, the Navy Department did convene a court-martial at the navy-yard, Washington, D. C., for the purpose of trying claimant upon such parts of the findings of the court of inquiry as it deemed proper to charge against him.

The correspondence leading up to and resulting in the assembling of the court-martial is fully set out in the findings. The sentence of the court-martial was likeAvise adverse to the claimant, and he would thereunder have been dismissed from the Navy save for the order of the President, as set out in Finding XI.

This suit is for the recovery of the difference in pay between the amount paid him after the sentence of the court-martial and the amount alleged to be due as waiting orders pay. The case involves the legality of the court-martial.

Civil courts are precluded from setting aside or reviewing the proceedings and sentences . of courts-martial where it affirmatively appears that they were legally constituted and had jurisdiction of the offense charged against the person of the accused and complied with the statutory regulations governing their proceedings. *(Dynes v. Hoover,*20 How., 65; *Ex parte Reed,*100 U. S., 13; *Smith*v. *Whitney,*116 U. S., 167; *Johnson*v. *Sayre,*158 U. S., 109; *Swaine*v. *United States,*165 U. S., 553; *Carter*v. *McClaughry,*183 U. S., 365; *McClaughry*v. *Deming,*186 U. S. 49.)

Claimant first challenges the jurisdiction of the court-martial over the subject-matter of the offense charged, predicating the same upon the condition imposed by the Secretary of r the Navy as to the admissibility of the evidence adduced before the court of inquiry as evidence before the court-martial,*172the Secretary manifestly having refused to accede to claimant’s request for a court-martial unless the admissibility of the same was previously agreed to; and upon said testimony being' inadmissible before the court-martial under article 60 of section 1624, Revised Statutes; and being so could not be validated by stipulation of the parties.

Article 60, section 1624, Revised Statutes, reads as follows :

“ The proceedings of courts of inquiry shall be authenticated by the signature of the president of the court and of the judge-advocate, and shall, in all cases not capital nor extending to the dismissal of a commissioned or warrant .officer, be evidence before a court-martial, provided oral testimony can not be obtained.”

It is to be observed that claimant’s privilege to have the accusations made against him to the Navy Department first investigated by a court of inquiry and again investigated by a court-martial, the supreme military tribunal, was not a matter of statutory or military right. No charges had been preferred against the claimant by the Navy Department and no effort had been made or was being made by the Department to secure his dismissal from the service because of the accusations against him, so far as the record before us discloses. The Secretary of the Navy was vested with power to convene such a tribunal, but also with discretion as to convening the same. Claimant had made an appeal for the exercise of the Secretary’s discretion, but he nevertheless still had the right and privilege to reject or accede to the stipulation respecting the waiver of statutory requirements as to the admissibility of testimony prior to the convening of the court-martial. The convening of the court-martial was entirely for his benefit, for unless he could acquit himself of the charges preferred he would be shortly liable under the provisions of the act of August 5, 1882, section 1447, Revised Statutes, providing for his promotion, to which he was at the time eligible, to be discharged from the service with not more than one year’s pay. The Navy Department could ivell have rested the case upon the findings of the court of inquiry in so far as claimant’s right to promotion was concerned. Moved, no doubt, by a desire to afford to the claimant every available *173proceeding to acquit himself of the charges preferred against him, that he might secure the benefit of the act of August 5, 1882 (supra), his request for a second investigation was granted. It is not contended that claimant or his counsel were ignorant of the existence of or terms of article 60, section 1624, of the Revised Statutes. The correspondence between claimant and Secretary of the Navy respecting the admissibility of this testimony indicate a full knowledge upon his part as to the statutes relating thereto.

During the progress of the trial the agreement was observed by claimant and his counsel and no objection entered of record to the production and consideration of said evidence by the court-martial. The question of waiver is usually one of fact. The right itself has some limitations grounded upon the doctrine of public policy. The rule, however, is well established that one. may waive the advantage of a law intended for his benefit where the waiver does n.ot affect the rights of others or contravene the public good. It is asserted, however, with much earnestness that article 60, supra, being legislation for the mutual benefit of both claimant and defendants, was mandatory and not subject to waiver. The purpose of the statute was to so limit and circumscribe the proceedings of courts-martial as to secure to the accused the right to be confronted with the witnesses against him in cases extending to capital punishment and dismissal from the service — the extreme penalties imposed for violation of military law. While confined within narrower limits than the rights secured to persons in civil life accused of crime under Article VI of the Federal Constitution, its intent is similar thereto, the Congress by its passage seeking to extend to the military officers of the Government accused of military offenses and subject only to the jurisdiction of military tribunals the same guarantees extended to those in civil life similarly accused, subject to trial before civil tribunals.

It is to be observed that the proceedings of a court of inquiry are not admissible under the statute in any case unless it affirmatively appears that oral testimony is unobtainable, thus securing to the accused even in minor offenses the right to exclude the findings of a court of inquiry, except in those extraordinary cases where all oral testimony as to the *174event has disappeared. The statute in its entirety seems to clearly indicate an intention to surround the accused with that high degree of protection whereby he may be legally assured that he will not be summarily divested of his rights under the law — a guaranty identical in most respects with that extended to civil persons in the bill of fights (art. 6, Constitution). In *Reynolds*v. *United States*(98 U. S., 158, 159), a case wherein the constitutional provision respecting the right of the accused to be confronted with witnesses against him was directly involved, Chief Justice Waite, speaking for the court, uses this language:

“ The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him, but if he voluntarily keeps the witnesses away he can not insist on his privilege.”

Again he says:

“ So that now in the leading text-books it is laid down that if a witness is kept away by the adverse party, his testimony, taken on a former trial between the same parties upon the same issues, may be given in evidence.”

True, in the case at bar the witnesses against the accused were not prevented from attending through the intervention of any wrongful act upon his part. Yet the stipulation waiving the right to insist upon their presence, if not binding, would have put the accused in the attitude of having secured the second hearing before a court-martial upon false representations. The claimant voluntarily surrendered an express provision of law, the complete import of which he well knew. By so doing'he acquired another right not given to him by law, to again present his defense to serious accusations against himself. If he is now permitted to avail himself of a defense in a civil tribunal which he might have presented to the tribunal having full jurisdiction at the time of the hearing, he will be in effect permitted to contravene the consequences of his own voluntary act and repudiate now an agreement which should in justice have been repudiated then, if at all. In the case of *Williams*v. *The State*(61 Wis., 281) the question of the right to waive a constitutional guaranty *175similar to that in article 6 of the Federal Constitution arose. The accused had been convicted of murder in the first degree. The evidence of a witness given before the coroner’s inquest was read to the jury by the consent and stipulation of the State’s attorney and the attorney, for the defendant. In affirming the judgment of the trial court the Supreme Court said:

“ But it is said that, as the Constitution provides that the accused shall enjoy the right to meet the witnesses face to face, he can not waive that right, and therefore the stipulation of the counsel that it might be read goes for naught. It is well settled that the accused may waive his right to be confronted with the witnesses on the trial.”

In the case of *State*v. *Polson*(29 Iowa, 133), the court said:

“ It will be observed that the right secured by this provision to the accused, to be confronted with the witnesses against him, is a personal right limited to proceedings in criminal prosecutions, or where the life or liberty of the citizen is involved. The provision is not in the nature of an inhibition upon a proceeding not in accord with the one secured.' Neither is it in the nature of a jurisdictional limitation upon the authority of the court, prohibiting the exercise of power except in the manner specified. It simply secures a personal right, and in no manner affects the jurisdiction of the court when prosecutions are tried. It very clearly appears that this right in proper cases, when no wrong can be done the accused, may be by him voluntarily waived. * * * It has been expressly ruled that when a prisoner permits illegal testimony to be given to the jury without objection, he can not afterwards raise any claim of privilege on account of the admission of such evidence.”

In the case of *Warren*v. *Glynn*(37 N. H., 340), the court said:

“ Indeed the authorities are too numerous for citation, where it has been held that a party, cognizant in the earlier stages thereof, of an objection that might be fatal to the validity of a proceeding before a tribunal otherwise competent, can not be permitted to lie by and take his chances of a result in his favor, and, after one has been arrived at against him, avail himself of that objection to avoid the consequences of such adverse result.”

*176To the same effect are sections 118 and 1205, 1 Bishop, on' Criminal Procedure. Indeed, the question is too well settled to admit of further citations.

While the constitutional provision to which we have referred has no application to the proceedings of courts-martial and is applicable only to criminal prosecutions in the civil courts of the United States, its interpretation by the civil courts is nevertheless exceedingly persausive in giving-effect to a legislative enactment to accomplish a similar intent in proceedings of courts-martial.'

On March 15, 1825, ITon. William Wirt, then Attorney- . General for the United States, responding to a request from the Secretary of the Navy in reference to the legal effect of a waiver of the privileges set out in the ninety-first article of war, said: .

“ It is a settled rule of law that no evidence is to be given against a prisoner but in his presence. This, however, is a privilege for the benefit of the prisoner, which it is perfectly competent for him to waive; and, as I understand j^our letter of the 12th, it has been waived in the case therein stated, by the consent of the officer who is about to be put upon his trial, and the depositions of witnesses abroad, taken upon interrogatories and cross-interrogatories, should be used on the trial. I do not think that the point of time at which this consent was expressed will affect the competency of the testimony.”

We have been unable, after a most careful and exhaustive research of the authorities, both military and civil, to discover an opinion contrary to this rule. The evidence adduced before a board of inquiry is surrounded by all the solemnities of evidence taken in a court of record or before a court-martial. The accused is personally present and represented by counsel. The right of cross-examination prevails and every legal inhibition as to its competency or relevancy can be raised at the hearing. While it is a court of inferior jurisdiction and its findings usually advisory, its proceedings are not in anywise summary. The evidence adduced and preserved before courts of inquiry is superior in every respect to depositions. An accused thus arraigned can not plead ignorance of the testimony against him or hope by subsequent examination of the same witnesses, in the same *177cause, between the same parties, to materially change their testimony.

We therefore conclude that the provisions of the statute governing the admissibility of the findings of the court of inquiry were not departed from by the proceedings of the court-martial.

We are unable to see how the objections now raised as to the departure from article 60, section 1624, Revised Statutes, in any manner goes to the jurisdiction of the court-martial. Were that the only question involved the case would be one of easy solution. The mere effect of the stipulation being-made a matter of record at the convening of the tribunal did not preclude the claimant as á matter of right from contesting its validity at the time of the trial. In fact, the correspondence relative thereto- shows upon its' face a submission of this question to the court-martial. The statute in question is not in any manner a limitation upon the jurisdiction of the court-martial. The authority of the tribunal is not prescribed by its terms. It is merely a legal regulation as to its proceedings securing- certain rights to the accused, which in the absence of an express waiver upon his part, must be accorded him by the tribunal or subject their findings or sentence to collateral attack in civil courts, and as such we have treated it. The allegation of duress with respect to the stipulation aforesaid is without merit. There were absolutely no circumstances surrounding the execution of the instrument which even tended to limit the free agency of the accused; he was not precluded thereby from introduction of additional testimony. Finding X discloses that he did produce an additional witness, and the stipulation simply included the testimony of the witnesses upon the former hearing without any comment on the findings of the court. No rights of the accused were violated in respect to the convening of the court-martial, for, as before observed, accused was not entitled under any law to have such a tribunal convened. It was for his express benefit that he sought to invoke its aid in an appeal to the Navy Department.

Claimant’s second contention goes to the validity of the President’s action in respect to the sentence imposed upon *178the claimant by tlie court-martial, it being asserted that the action of the President in issuing- his order of July 8, 1897 (Finding XI), was contrary to article 54, section 1624, Revised Statutes, in that it commuted the sentence of the court-martial, whereas only power to mitigate was authorized.

Article 54, section 1624, Revised Statutes, is in these words:

“ Every officer who is authorized to convene a general Court-martial shall have power, on revision of its proceedings, to remit or mitigate, but not to commute, the sentence of any such court which he is authorized to approve and confirm.”

Granting *arguencL'o*without deciding the correctness of the position taken, we are of the opinion that the statute in question has no application to the President.

The court-martial having been legally constituted and having had jurisdiction of the subject-matter charged, and the person of the accused and its proceedings and sentence having complied with all statutory regulations governing the same, the petition herein will be dismissed.

Petition is dismissed.