United States v. Page/Opinion of the Court

by Melville Fuller

United States Supreme Court

137 U.S. 673

United States  v.  Page

It is contended that the sentence of dismissal was a nullity because it does not sufficiently appear from the record of the court-martial proceedings, and the indorsements thereon, that the findings and sentence were approved by the president. The sixty-fifth article of war, (2 St. p. 367, c. 20,) which was in force at the time of these proceedings, provided: 'Any general officer commanding an army, or colonel commanding a separate department, may appoint general courtsmartial, whenever necessary. But no sentence of a court-martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial, in time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution until after the whole proceedings shall have been transmitted to the secretary of war, to be laid before the president of the United States for his confirmation or disapproval and orders in the case. All other sentences may be confirmed by the officer ordering the court to assemble, or the commanding officer, for the time being, as the case may be.' Undoubtedly, the action required of the president under this article is judicial action. He decides personally, and the judgment is his own personal judgment, and not an official act presumptively his. But that judgment need not be attested by his sign manual in order to be effectual. This was so held by Attorney General Wirt, (2 Op. Attys. Gen. 67,) Attorney General Cushing, (7 Op. Attys. Gen. 473,) and Attorney General Devens, (15 Op. Attys. Gen. 290;) and in the opinion of the latter numerous instances of the attestation of the president's determination by the secretary of war are given. It is argued that the president was required by paragraph 896 of the army regulations of 1863, then in force, to affix his signature to the statement of his decision. That paragraph provided: 'The judge advocate shall transmit the proceedings, without delay, to the officer having authority to confirm the sentence, who shall state, at the end of the proceedings in ech case, his decision and orders thereon.' But the next paragraph (897) read: 'The original proceedings of all general courts-martial, after the decision on them of the reviewing authority, and all proceedings that require the decision of the president under the 65th and 89th articles of war, and copies of all orders confirming or disapproving or remitting the sentences of courts-martial, and all official communications for the judge advocate of the army, will be addressed to 'The Adjutant-General of the Army, War Department,' marked on the cover, 'Judge Advocate." This provision, as is pointed out by Attorney General Devens, (15 Op. Attys. Gen. 292,) 'shows that paragraph 896 was intended to embrace proceedings other than those requiring the decision of the president, namely, proceedings which may be confirmed by the officer who ordered the court to assemble, or the commanding officer for the time being, as the case may be.' And the attorney general concludes that, 'in the case of the confirmation of a sentence of dismissal by a court-martial, no formality appears to be prescribed by law for attesting the determination of the president; and as, in cases of that sort, the attestation of such determination by a written statement, signed by the secretary of war, is in acordance with long usage, tht mode of attesting the president's action, confirming a sentence of dismissal, is to be considered as sufficient.' We are satisfied that this view is correct. Since, ther fore, it appeared by the order of the secretary of war, written upon the record of the court-martial in controversy, that the proceedings had 'been forwarded to the secretary of war, and by him submitted to the president,' and that the proceedings and findings upon certain charges and specifications were approved, and that the sentence was approved, the only possible conclusion to be drawn from such statement is that the approval was by the president, in whom alone was reposed the authority to act. The secretary of war declared that he had submitted the proceedings in conformity with the sixty-fifth of the rules and articles of war; and the sixty-fifth article required the whole proceedings to be laid before the president for his confirmation or disapproval and orders in the case. By what process of reasoning can the conclusion be justified that, although these proceedings were laid before the president for his confirmation or disapproval, yet the findings and sentence were approved by some one else, who had no authority to act in the premises? On the contrary, where the record discloses that the proceedings have been laid before the president for his orders in the case, the orders subsequently issued thereon are presumed to be his, and not those of the secretary by whom they are authenticated: and this must be the result here, where the approval follows the submission in the same order.

In Runkle v. U.S., 122 U.S. 543, 7 Sup. Ct. Rep. 1141, the record failed to show the vital fact of the submission of the proceedings to the president. The findings of the court of claims in that case upon this point were that the proceedings, findings, and sentence of the court-martial were transmitted to the secretary of war, who wrote upon the report that such proceedings, findings, and sentence were approved. But it was not found, nor did the secretary's indorsement show, that the whole proceedings had been submitted to the president. The secretary did, indeed, conclude his order with the statement that, in view of the unanimous recommendation by the members of the court and the previous good character of the accused, and in consideration of evidence by affidavit as to his physical condition, presented to the war department since the trial, and credible representations as to his inability to pay the fine imposed, the president was pleased to remit all of the sentence, except so much thereof as directed cashiering; but this court held that the order was capable of division into two separate parts, one relating to the approval of the proceedings ad § entence, and the other to the executive clemency which was invoked and exercised; and that it was only in relation to the latter that the president seemed to have exercised a personal power under the constitution,-the power, namely, of granting pardons,-while the former indicated on its face departmental action only. And this conclusion was fortified, in the judgment of court, by the order of President Hayes stating that the record of official action showed that the approval of the proceedings of the court was by the petition to President Grant on the day pettion to President Grant on the day the order cashiering him was issued, averring that the proceedings had not been approved by the president; that this petition was referred to the judge advocate general for review and report; and that this report was made; and by which order President Hayes, taking up the matter as unfinished business, and acting as though the proceedings had never been approved, disapproved of the same. 'Under such circumstances,' said Mr. Chief Justice WAITE for the court, 'we cannot say it positively and distinctly appears that the proceedings of the court-martial have ever in fact been approved or confirmed, in whole or in part, by the president of the United States, as the articles of war required before the sentence could be carried into execution.' And he closed the opinion in these words: 'Such being our view of the case, it is unnecessary to consider any of the other questions which were referred to the court of claims. Neither do we decide what the precise form of an order of the president approving the proceedings and sentence of a court-martial should be, nor that his own signature must be affixed thereto. But we are clearly of opinion that it will not be sufficient unless it is authenticated in a way to show other wise than argumentatively that it is the result of the judgment of the president himself, and that it is not a mere departmental order which might or might not have attracted HIS PERSONAL ATTENTION. THE FACT THAT The order was his own should Not be left to inference only.' Inasmuch as it did not affirmatively appear that the whole proceedings had been laid before the president,-and it was argued that this must have been so because of the exercise of executive clemency, though the latter was declared to have been influenced by matters subsequent to the trial,-it was thought that the order of approval could not be presumed to have been made by the president upon the strength of an inference drawn from the remission of a part of the sentence. The inference that the president had personally acted could, indeed, be properly drawn from the substantive fact of the submisssion of the proceedings to him, if that had appeared, but presumption could not supply that fact, and then a presumption upon that presumption be availed of to make out that the approval was the president's personal act. This, as the chief justice remarked, would leave the fact that the order was his own to inference only.

The judgment of the court of claims is reversed, and the cause remanded, with directions to dismiss the petition.

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