EX PARTE REED.

*16 Mr. George S. Boutwell for the petitioner.

The Attorney-General, contra.

*19 MR. JUSTICE SWAYNE delivered the opinion of the court.

There is no controversy in this case about the facts. The questions we are called on to consider are all questions of law. A brief summary of the facts will therefore be sufficient.

The petitioner, Reed, was the clerk of a paymaster in the navy of the United States. He was duly appointed, and had accepted by a letter, wherein, as required, he bound himself "to be subject to the laws and regulations for the government of *20 the navy and the discipline of the vessel." His name was placed on the proper muster-roll, and he entered upon the discharge of his duties. While serving in this capacity, charges of malfeasance were preferred against him, and on the 26th of June, 1878, he was directed by Rear-Admiral Nichols to appear and answer before a general court-martial, convened pursuant to the order of that officer on board the United States ship "Essex," then stationed at Rio Janeiro, in Brazil. The court found the petitioner guilty, and sentenced him accordingly. The admiral declined to approve the sentence, and remitted the proceedings back to the court, that the sentence might be revised. The court thereupon pronounced the following sentence in substitution for the former one: —

"That the said Alvin R. Reed, paymaster's clerk, U.S. Navy, be imprisoned in such place as the honorable Secretary of the Navy may designate, for the term of two years; to lose all pay which may become due him during such confinement, excepting the sum of $10 per month, this loss amounting to $1,960; to be fined in the sum of $500, which fine must be paid before or at the end of the term of confinement. Should such fine not be paid at end of the term of confinement, to be detained in confinement without pay until such fine be paid, and at the expiration of the term of confinement to be dishonorably dismissed from the naval service of the United States."

This sentence was different from the preceding one in two particulars, and in both it was more severe. It was approved by the admiral, and ordered to be carried out. The court was subsequently dissolved. While in confinement, under the sentence, on board a naval vessel at Boston, the petitioner sued out a writ of habeas corpus, and brought his case before the Circuit Court of the United States for the District of Massachusetts. After a full hearing, that court adjudged against him, and ordered him back into the custody of the naval officer to whom the writ was addressed. The petitioner thereupon made this application in order that the conclusions reached by the Circuit Court may be reviewed by this tribunal.

It is supposed that courts-martial were intended originally to be a partial substitute for the court of chivalry of former times. *21 3 Christian's Bl. 68, 108; Bouv. Law Dict., tit. Courts-martial. The difference between military law and martial law is too well known to require any remark. 1 Kent, Com. (12th ed.) 241, note (a).

"... The common law ... knew no distinction between citizen and soldier; so that if a life-guardsman deserted, he could only be sued for a breach of contract; and if he struck his officer, he was only liable to an indictment or an action of battery." 3 Campbell's Lives of Chief Justices, 91.

The constitutionality of the acts of Congress touching army and navy courts-martial in this country, if there could ever have been a doubt about it, is no longer an open question in this court. Const., art. 1, sect. 8, and amendment 5. In Dynes v. Hoover (20 How. 65), the subject was fully considered and their validity affirmed.

The regularity of the original organization of the court here in question is not denied.

Three points in support of the petition have been brought to our attention. It is insisted —

1. That the court had no jurisdiction to try a paymaster's clerk.

2. That when the first sentence was pronounced, the power of the court was exhausted, and that the second sentence was, therefore, a nullity.

3. That the court could revise its former sentence only on the ground of mistake, and that there was no mistake, and consequently no power of revision.

The first of these propositions is clearly not maintainable.

Where the punishment is death, or fine and imprisonment, the jurisdiction in question is extended to all persons "in the naval service of the United States" (Rev. Stat., sect. 1624, arts. 4, 14); and it embraces, besides the frauds enumerated, "any other fraud against the United States." Id., art. 14.

In case of conviction, adequate punishment is required to be adjudged. Id., art. 51.

Except where the sentence is death or the dismissal of a commissioned or warrant officer, it may be executed when confirmed by the officer ordering the court. Id., art. 53.

The place of paymaster's clerk is an important one in the *22 machinery of the navy. Their appointment must be approved by the commander of the ship. Their acceptance and agreement to submit to the laws and regulations for the government and discipline of the navy must be in writing, and filed in the department. They must take an oath, and bind themselves to serve until discharged. The discharge must be by the appointing power, and approved in the same manner as the appointment. They are required to wear the uniform of the service; they have a fixed rank; they are upon the payroll, and are paid accordingly. They may also become entitled to a pension and to bounty land. Navy Regulations of Aug. 7, 1876, p. 95; In re Bogart, 2 Sawyer, 396; United States v. Bogart, 3 Benedict, 257; Rev. Stat., sects. 4695 and 2426.

The good order and efficiency of the service depend largely upon the faithful performance of their duties.

If these officers are not in the naval service, it may well be asked who are.

The second and third points will be considered together.

The Secretary of the Navy is authorized to establish "Regulations of the Navy," with the approval of the President. 12 Stat. 565; Rev. Stat., sect. 1547. Such "Regulations for the Administration of Law and Justice" were issued on the 15th of April, 1870. Thereby it is declared as follows: —

"The authority who ordered the court is competent to direct it to reconsider its proceedings and sentence for the purpose of correcting any mistake which may have been committed.

"It is not the power of the revising authority to compel a court to change its sentence, where, upon being reconvened by him, they have refused to modify it, nor directly or indirectly to enlarge the measure of punishment imposed by sentence of a court-martial.

"The proceedings must be sent back for revision before the court shall have been dissolved." Reg., c. 5, sects. 262-264.

Such regulations have the force of law. Gratiot v. United States, 4 How. 80.

The proceedings with respect to the revision of the second sentence were in conformity to these provisions.

It is clear that the court was not dissolved until after the approval of the second sentence by the admiral.

*23 The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances. The exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review by an appellate court.

We do not overlook the point that there must be jurisdiction to give the judgment rendered, as well as to hear and determine the cause. If a magistrate having authority to fine for assault and battery should sentence the offender to be imprisoned in the penitentiary, or to suffer the punishment prescribed for homicide, his judgment would be as much a nullity as if the preliminary jurisdiction to hear and determine had not existed. Every act of a court beyond its jurisdiction is void. Cornett v. Williams, 20 Wall. 226; Windsor v. McVeigh, 93 U.S. 274; 7 Wait's Actions and Defences, 181. Here there was no defect of jurisdiction as to any thing that was done. Beyond this we need not look into the record. Whatever was done, that the court could do under any circumstances, we must presume was properly done. If error was committed in the rightful exercise of authority, we cannot correct it.

A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be, not merely erroneous and voidable, but absolutely void. Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193; Ex parte Milligan, 4 Wall. 2.

The application of the petitioner is, therefore, denied.