APPEALS FROM THE COURT OF CLAIMS.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the Court
The claimant's suit was for arrears of pay claimed to be due him as a retired officer of the army of the United States, accruing from December 1, 1883, to November 30, 1890, at the rate of two thousand one hundred dollars per annum, and amounting to the sum of fourteen thousand seven hundred dollars. This claim was met by a finding and sentence of a court-martial, held on the 10th of July, 1872, in the city of Philadelphia, whereby Fletcher was found guilty of "conduct unbecoming an officer and a gentleman," and sentenced to be dismissed the service.
By Article 65 of the act of April 10, 1802, 2 Stat. 359, 367, c. 20, establishing rules and regulations for the government of the armies of the United States, it was provided that "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." And Article 83 read thus: "Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service."
These articles, and the provisions of the act of May 29, 1830, 4 Stat. 417, c. 179, amending the 65th Article, were carried forward into Articles 72 and 106 of section 1342 of the Revised Statutes.
Upon the record of the proceedings, findings and sentence of the court-martial which tried Captain Fletcher, the Secretary of War endorsed that: "In conformity with the 65th of the Rules and Articles of War, the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War for the action of the President. The proceedings, findings and sentence are approved, and the sentence will be duly executed."
Was this order void on the ground that it does not appear that the President personally approved the proceedings and directed the execution of the sentence?
By the first section of the act of August 7, 1789, 1 Stat. 49, establishing an Executive Department to be denominated the Department of War, now in substance section 216 of the Revised Statutes, the Secretary of War is to perform and execute such duties as shall be enjoined on, or entrusted to him by the President, relative to the land or naval forces or to such other matters respecting military or naval affairs as the President shall assign to the department, and to conduct the business of the department in such manner as the President shall from time to time order or instruct. And we have held that while the action required of the President in respect
of the proceedings and sentences of courts-martial is judicial, yet that such action need not be evidenced under his own hand.
Under Article 65, the proceedings of this court-martial were not forwarded to the Secretary of War for individual action by him, but to enable him to lay them before the President, so that the latter might take action as prescribed. There is nothing to indicate that the Secretary of War assumed to confirm or disapprove, or issue orders in the case, and as his endorsement showed that he was proceeding under that article, and that he had received the record for the purpose of being acted on by the President, the approval and the direction for the execution of the sentence were manifestly the acts of the President. The presumption is that the Secretary and the President performed the duties devolved upon them respectively, and it would be unreasonable to construe the Secretary's endorsement as ...