#### Lorenzo A. Phelps *v.*The United States.

*On the Proofs.*

*An officer in the military service is sentenced by a court-martial to be cashiered and dismissed from the service, and to forfeit all pay and allowance then due or thereafter to become due. The sentence is approved. Before the sentence of the court is promulgated the officer, in violation of orders, proceeded to aplace of residence notorious for rebel sympathizers and exposed to rebel raids, where he is captured by the enemy. On being released, he first hears the sentence of the court-martial. He is paid up to the time of the promulgation of the sentence. He claims pay during his captivity and up to the time he had notice of the sentence.*

I. Under the *Act*30í/¿ *March,*1814, (3 Stafc. L., 114, § 14,) an officer, non-commissioned officer, or soldier “ *captured by the enemy shall be entitled to receive during his captivity, notwithstanding the expiration of his term of service the same pay to zokich he may be entitled \ahile in the service of the United States."*But the act does not extend to one who was not in the discharge of his duties at the time of his capture, and who contributed to the disaster by culpably residing in a dangerous place, contrary to orders.

II. The sentence of a Court-Martial including a forfeiture of all pay due at the time of trial, or to become due thereafter, precludes an officer from a right to receive pay after trial and during his captivity, under the *Act 30th March*1814, (3 Stat. L. 114 § 14,) whether the sentence was promulgated before or after his capture.

*Mr. Enoch*Totten, for tbe claimant:

Tbe plaintiff was an officer in tbe volunteer service of tbe United States, witli tbe rank of a major of infantry, during tbe late rebellion. In tbe month of April, 1863, be was arraigned before a court-martial on a series of charges and specifications, tried, found guilty of a part thereof, and sentenced, among other things, to be dismissed from the military service of tbe United States. During tbe period which elapsed between tbe termination of tbe trial and final action of tbe reviewing officer and promulgation of tbe orders in tbe case, be was captured by tbe enemy and carried within tbe rebel lines, a prisoner of war. He was detained as such prisoner of war for nearly two years, when be was exchanged. He now institutes this action to recover tbe pay and allowances due to him in pursuance of tbe provisions of tbe act of March 30, 1814, alleging that tbe action of tbe said court-martial was void and of no effect.

Tbe Act *of March*30,1814, (3 Stat.L., 114,) provides as follows:

“Every non-commissioned officer and private of tbe army, or *210officer, non-commissioned officer, and private of any militia or volunteer corps, in tbe service of tbe United States, wbo bas been, or wbo may be, captured by tbe enemy, shall be entitled to receive during bis captivity, notwithstanding tbe expiration of bis term of service, tbe same pay, subsistence, and allowance to which be may be entitled whilst in tbe actual service of tbe United States.”

Tbe first question arising for determination is this: was the plaintiff “in the service of the United States” at tbe time of bis capture by tbe enemy? If this question is answered in tbe affirmative, it follows that be is entitled to bis pay and allowance under tbe said act. Tbe action of tbe court-martial in bis case was null and void, and therefore did not sever bis connection with tbe service.

*First.*Tbe court bad no jurisdiction to try or sentence him, because tbe officer under whose authority it was assembled bad no lawful power to perform that act. He was tbe commander of a geographical “ district.” Tbe sixty-fifth article of war provides, that “ any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial whenever necessary.” (2 Stat. L., 364; Brightly’s Digest, 79.) And tbe *Act of December*24,1861, (12 Stat. L., 330,) provides further, that “in time of war tbe commander of a division or separate brigade may a]ipoint general courts-martial, and confirm, execute, pardon, and mitigate their sentences, as allowed and restricted, in tbe 65th and 89th articles of war, to commanders of armies and dejiartinenfcs.” This officer was neither a general commanding an army, a colonel commanding a separate department, tbe commander of a division, nor of a separate brigade. Tbe record of tbe trial discloses tbe fact that be was tbe commander of a “ district.” Tbe statutes relating to courts-martial are penal statutes, and therefore fall within tbe well known rule of law, that such statutes must be construed strictly. (Black. Com., 881.) There is no law to be found which gives power to tbe commander of a “district” to appoint courts-martial. Tbe language of tbe statutes referred to as to what officers may exercise this authority is clear and explicit. And the Supreme Court of tbe United States, in *Denn*v. *Beid,*(10 Peters, 527,) declares that “it is not for tbe court to say, where the language of tbe statute is clear, that it shall be so construed as to embrace cases, because no good reason can be assigned why they were not included in *211its provisions.” * * * “ The court are bound by tbe clearly expressed language of tlie act.”

The act of December 24,1861, contains a proviso that the “sentences of such courts, extending to loss of life or dismission of a commissioned officer, shall require the confirmation of the general commanding the army in the field to which the division or brigade belongs.” The words “ division” and “brigade,” as employed here, mean component parts of an “army in the field,” (see § 483 and § 474, Army Kegulations;) while the word “ district,” as used in the order appointing the court in this case, clearly refers to the geographical section of country subjected to the military control of the officer who issued the order. It has no reference to the number of men in his command, as the words “army,” “division,” and “separate brigade,” clearly do.

*Second.*The sentence of the court is void and of no effect, because it was not confirmed according to the statute in such casemade and provided. (12 Stat. L.,330; Brightly’s Digest, 1101; § 896, Army Regulations.) The army regulations have the force of statutes. (12 Stat. L., 268; Brightly, 1107; *Gratiot*v. *The United*States, 4 How., 117.)

Under the act of 1814, before cited, the plaintiff is entitled to the same pay and allowances that would have been due to him had he been actually on duty with his command, from January 1, 1863, to March 6,1865, (for amount of which see Army Regulations, 545, and *Gilmore*v. *The United States,*2 C. Cls.R., 364;) together with his traveling allowance from Annapolis, Maryland-, to Burlington, in Ohio, at the rate of one day's pay and allowancesfor every 20 miles traveled. (12 Stat. L., 269; Brightly, 1108; 2 Stat. L., 1769, § 16; General Orders No. 43, War Department, 1861.)

*Mr. Alexander Johnston,*(with whom was the *Assistant Attorney General,)*for the defendants:

The first objection urged as to the legality of the action of the court-martial is that said court had no jurisdiction, because it was not appointed by “ the commander of a division or separate brigade,” as provided by law, but by the commander of a “ district.” The foundation for the assumption of this fact is, that the order convening the court is headed “Headquarters, *212district of Kanawha.” This is a circumstance going to show that General Scammon was the commander of a district; but it does not prove that he was not “ the commander of a division or separate brigade.” The testimony is, that he was, in fact, the commander of a division, “ designated as the third division, composed of a first and second brigade, eighth army corps, subordinate only to the department commander, middle department. This objection, therefore, falls to the ground.

The second objection is, that “the sentence was never confirmed in accordance with the statute in such case made and provided.” This is a very fine point, so much so that I fail to observe it. The statute *(Act of December*24,1861, § 1, Stat. at Large, vol. 12, p. 330) provides that sentences of courts-martial extending to loss of life or dismission of commissioned officers shall require the confirmation of the general commanding the army in the field to which the division or brigade belongs.” In this case the order of confirmation is in the words following, viz:

“ Headquarters Department op West Yirginia,

“ Clarksburg, *West.*Va., *August*15,1863.

“The proceedings and findings of the foregoing are approved and confirmed. Major Lorenzo A. Phelps, 5th regiment Virginia volunteer infantry, ceased to be an officer in the military service of the United States from April 24,1863.

“B. F. KELLEY,

*"Brig.*General.”

It is not denied that General Kelley was the proper officer, but that his confirmation is of “ the proceedings and findings” and not of “ the sentence.” The sentence was that, the claimant should “ forfeit all q>ay and allowances now due or which may hereafter become due him, and that his shoulder-straps be publicly cut off his . shoulders before the United States troops at dress parade, and that he be cashiered and dismissed the service of the United States.” This sentence is a part of “the proceedings” which General Kelley approves and confirms.

I. *The claimant toas not an officer in the military service of the United States at the time of Ms capture.*

His sentence, as pronounced by the court, April 24,1863, was as follows: “ To forfeit all pay and allowances now due or which *213may hereafter become due; that his shoulder-straps be publicly cut off his shoulders before the United States troops at dress parade, and that he be cashiered and dismissed from the service of the United States.”

The proceedings were regular and the evidence of record fully sustains the findings.

Brigadier General Kelley, commanding the department of West Virginia, approved the sentence August 15,1863. '

After his trial, and before the promulgation of the sentence, to wit, May 17,1863, the claimant was ordered by B. B. Hayes, colonel commanding brigade, to “proceed to Ceredo, West Virginia, and there remain under arrest to await the decision of the court-martial in his case.” Afterward, on the 7th of September, 1863, more than three weeks after the sentence of the .court had been confirmed, the claimant was captured at Guyan-dotte, ten miles from Oeredo.

This man had been ordered to Oeredo, which is on the Ohio river, opposite Burlington, his place of residence. There is no testimony showing why he did not remain there. General Holt (Bep., p. 88) alludes to an affidavit of the claimant, wherein he stated that he left Ceredo because it became dangerous to remain there any longer, owing to the proximity of rebel troops and the absence of United States troops. If this were proven, it would make no difference. He had the same right to cross the river to his home in Ohio that he had to go anywhere else than to Oeredo. The report of Colonel Enochs, (Bep., p. 76,) and the statement of General Hayes, (p. 84,) show that the true intent and meaning of the order was “ merely to remove him fiom the regiment and direct him to remain *at home.”*Had he gone home, he would not have violated the spirit of the order, and would have been safe.

II. *The act of March,*30,1814, *does not apply to such a case.*

By sec. 14 of this act, (5 Stat. L., 115,) it was enacted:

“ That every non-commissioned officer and private of the army, or officer, non-commissioned officer, or private of any militia or volunteer corps in the service of the United States, who has been or may be captured by the enemy, shall be entitled to receive during his captivity, notwithstanding *the expiration of his term of*service, the same pay, subsistence, and allowances to which he may be entitled whilst in the actual service of the United States.”

*214The word “expiration” bere clearly means tlie “end of a limited time;” and the “limited time” referred to is of course the “term of service.”

Milligan, J.,

delivered the opinion of the court:

In July, 1861, the plaintiff in this action alleges he was mustered as captain into the military service of the United States, and that he served in that capacity until April, 1862, when he was promoted to the rank of major, and as such duly commissioned. On the 13th of April, 1862, a court-martial was organized, pursuant to an order previously issued, before which he was tried and convicted, and sentenced to be cashiered and dismissed from the military service of the United States, and to forfeit all pay and allowance then due or thereafter to become due.

But before the sentence of the 'court-martial, as he alleges, was promulgated, or he had notice thereof, he was captured by the military forces of the enemy, and confined in prison until the 8th day of March, 1865.

He further states, he had been paid for his services up to and including the 31st of December, 1862, and that his pay and allowance from the 1st of January, 1863, up to the 8th day of March, 1865, when he had notice of the sentence of the court-martial, is still due him, and for which this action is prosecuted.

Three questions are presented in argument: 1st. It is insisted that the court-martial that tried and convicted the claimant, was irregular, and had no legal authority to try and pronounce judgment of conviction upon him. 2d. The officer who approved the sentence of conviction was not lawfully authorized thereunto. 3d. The capture was before the promulgation of the sentence of the court, and did not, under the act of Congress approved March 30,1814, 3 Stat. L., 114, work a forfeiture of his pay and allowance during his imprisonment.

In answer to the first two propositions, we have carefully examined the acts of Congress regulating the calling of courts-martial, and the approval of the sentences thereof, and have no difficulty whatever in sustaining the regularity of the court, and its lawful authority to try and sentence the claimant.

It is equally clear that the general who approved the finding *215and sentence of tbe court bad lawful authority to do so; and therefore we dismiss these questions without encumbering this opinion with further argument on them.

The third proposition presents more difficulty, but which we think may be resolved in a clear and satisfactory manner.

The act of the 30th of March, 1814, sec. 14, provides: “That every officer, non-commissioned officer, and private of any militia or volunteer corps in the service of the United States, who has been or may be captured by the enemy, shall be entitled to recover during his captivity, notwithstanding the expiration of his term of service, the same pay, subsistence, and allowance to which he may be entitled whilst in the actual service of the United States.”

This section of the statute has undergone construction, in this case, by the Judge Advocate General, which we think is fair and just, and I cannot do better than to incorporate it into this opinion, as expressing the views of this court on this section. He says: “ The status of a soldier is not changed by his capture, so far as his relations to this government are concerned. He is entitled to all the rights of a soldier after capture, as if he were in actual service, under the conditions-which existed at the time he was taken. If, therefore, he were entitled to pay at that time, his rights would, under the act of 1814, continue until his release, notwithstanding tbe expiration of his term of service.”

“At the time he was captured, Major Phelps was awaiting sentence of a court-martial; but, as there is no law to prevent the payment of an officer under such circumstances, except in cases of desertion, he was entitled to pay at that time, and his rights must continue, unless the subsequent confirmation and publication of the sentence determine them.”

Though the act of 1814 is apparently confined to cases of expiration of the term of service by lapse of time, it may well be regarded as including in its spirit the termination of service by any other means whatever. That act is in conformity with a principle which is general in its application, to wit, that when a soldier’s connection with the service ceases, by limitation of time or by act of the government, he should be restored to his rights as a citizen, subject only to the right to impose disabilities by way of punishment for offences of which he has been duly convicted.

*216Allowing this provision of the statute, when properly construed, to cover the case of the' claimant, the only question remaining for our determination is, to ascertain whether he was in the discharge of his duty at the time of his capture.

The record shows that the trial was had at Charleston, West Virginia, and after the hearing of the case, and before the sentence was promulgated, the claimant was ordered “ to proceed to Oeredo, West Virginia, and to await the decision of the court-martial in his case.” This order is dated on the 17th of May, 1863; and it appears he was afterwards captured at Guyan-dotte, Virginia, on the 7th of September, 1863, a distance of ten miles from the place to which he was ordered. No sufficient excuse is shown for his disobedience of orders, and Guyandotte is proven to be a place notorious for its rebel sympathizers, and the frequency with which it was visited by guerillas and rebel raiding parties. Whether he knew his sentence before he went there or not, does not appear; in any event, his disobedience of orders puts him beyond the rule in regard to prisoners of war captured while in the discharge of their duty, and he cannot escape the consequences of his own act.

Whether the sentence of the court-martial was published before his capture or not, is not fully proven. It is, however, reasonable to suppose it was, as 23 days elapsed after the approval of the sentence of the court before he was taken prisoner. But, however this may be, the sentence, upon his release from captivity, was duly announced to him, and it is now lawfully executed, and the forfeiture of all pay then due or thereafter to become due is not, under the circumstances of this case, subject to remission.

The judgment of the court is, therefore, that the petition be dismissed, and that the claimant take nothing by his action.