the judge advocate general for "review and report." Upon this reference the judge advocate general acted and reported on the whole. case. President Grant did nothing further in the premises, and the matter remained open when President Hayes came into office. He then took it up as unfinished business, and, acting as though the proceedings had never been approved, entered an order of disapproval. Under these circumstances, 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. Consequently, Major Runkle was never legally cashiered or dismissed from the army, and he is entitled to his longevity pay, as well as that which he has already received for his regular pay, both before the order of Secretary Belknap was revoked and afterwards.

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 otherwise 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.

The judgment of the court of claims is reversed, and the cause remanded for further proceedings in conformity with this opinion.

2. MILITARY PERSONS-SPECIAL RIGHTS AND LIABILITIES IN CIVIL LAW

1. WILKES v. DINSMAN.

(Supreme Court of the United States, 1849. 7 How. 89, 12 L. Ed. 618.)

Error to the circuit court for the District of Columbia, in an action of trespass, brought by a person who served as a marine on board one of the vessels employed in the exploring expedition under the command of the defendant, alleging that the defendant caused him to be whipped and imprisoned. The nature of the justification, and the questions arising out of it, appear in the opinion of the court. * * * WOODBURY, J., delivered the opinion of the court.

The original action in this case was trespass by a marine in the exploring expedition, against its commanding officer.

It will be seen, by the statement of the case, that the injury complained of was a punishment inflicted on the plaintiff by the defendant, in November, 1840, near the Sandwich Islands, for disobedience of orders, or a refusal to perform duty when directed.

The plaintiff claimed that the term for which he was bound to serve as a marine had then expired; that the defendant had no right or justification to detain him longer on board; and that his refusal to do duty longer being the only reason, and an insufficient one, for punishing him at all, under such circumstances he was entitled to recover damages of the defendant for subjecting him to receive twelve lashes, and for a repetition of the punishment on a subsequent day, after another request and refusal by him to obey. And also, in the mean time, for putting him in irons, and confining him in a native prison on the island of Oahu.

The defendant pleaded the general issue; * *

Various questions of law arose during the trial, which are presented on the record in nine separate bills of exceptions by the defendant, and one by the plaintiff. Some of them are of an ordinary character, but others possess much interest, and are important in their consequences, not only to these parties, but to the government, and the community at large.

In a public enterprise like the exploring expedition, specially authorized by congress, in 1836, (see act of congress of 14th May, 1836, 5 Statutes at Large, 29, § 2,) for purposes of commerce and science, very valuable to the country, and not entirely without interest to most of the civilized world, it was essential to secure it from being defeated by any discharge of the crews before its great objects were accomplished, or by any want of proper authority, discretionary or otherwise, in the commander, to insure, if possible, a successful issue to the enterprise.

It is not to be lost sight of, however, and will be explained more fully hereafter, that, while the chief agent of the government, in so important a trust, when conducting with skill, fidelity, and energy, is to be protected under mere errors of judgment in the discharge of his duties, yet he is not to be shielded from responsibility, if he acts out of his authority or jurisdiction, or inflicts private injury either from malice, cruelty, or any species of oppression, founded on considerations independent of public ends.

The humblest seaman or marine is to be sheltered under the ægis of the law from any real wrong, as well as the highest in office. Considerations connected with these views are involved in most of the points ruled by the court below.

* *

*

Having thus ascertained that the defendant had further jurisdiction over the plaintiff, and it being admitted that the latter refused to perform his orders, and, in the language of the 14th article, that he disobeyed the lawful orders of his superior officer, 2 Stats. at Large, 47, and this on an important subject, and under circumstances likely to extend to many more of the crew, and to end in mutiny or an abandonment of the expedition, if not suppressed with promptitude and decisive energy, the next inquiry is whether the punishment was inflicted within the license of the law.

It is not the province of the judiciary to decide on the expediency or humanity of the law, but merely its existence, and the conformity or non-conformity to it by the defendant.

Where a private in the navy, therefore, is guilty of any "scandalous

conduct," the commander is, by the 3d article of the laws for the government of the navy, authorized to inflict on him twelve lashes, without the formality of a court-martial. 2 Stats. at Large, 46.

If disobedience was not such conduct, but, under the 14th article, exposed the offender to severe punishment by a court-martial, the plaintiff could hardly complain that it was mitigated to only the twelve lashes which the captain was authorized to inflict without calling such a court, by article 30, as well as article 3, ibid. 49, and no more stripes were given here for any one act of disobedience than the 3d and 30th articles warrant.

Nor were they accompanied by any circumstance of unusual severity or of cruelty, either in the manner or the instrument employed. After an interval of two or three days, according to the counts in the writ, as well as the proposed proof, and after explanations and exhortations to duty, and time given for reflection, followed by renewed disobedience, the same number of stripes was repeated, because deemed necessary in order to enforce duty.

After another interval for like purposes, on a subsequent day, upon a new refusal, the punishment was again inflicted, and the plaintiff thereupon returned to duty.

If precedents were needed to justify this course, it has been settled in a penal prosecution that a like act, when prohibited, if distinctly repeated, even on the same day, constitutes a second offence, and incurs an additional penalty. Brooks qui tam v. Milliken, 3 D. & E. 509.

Again, if this disobedience could not be considered a technical offence under either of the articles already referred to, it surely is an offence in nautical service, and one of much magnitude at times; and the 32d article provides that all crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea. 2 Stats. at Large, 49.

In the discipline of the merchant service, where an act of disobedience is persisted in, and endangers the due subordination of others, the captain is justified, not only in punishing personally, but in resorting to any reasonable measures necessary to produce submission and safety. See Fuller v. Colby, 3 Woodb. & Min. 1, Fed. Cas. No. 5,149, and cases there cited, and 9 Law Reporter, 386.

Under this portion of the inquiry arises also the question as to the ruling about putting the plaintiff in irons, and about the confinement of him on shore in a prison of the natives.

This appears to have been done under the same aspect of the case, looking to the preservation of sound discipline and the safe imprisonment of the plaintiff till he consented to return to his duties.

It appears that several other marines in the squadron were taking like insubordinate ground with the plaintiff, and that the escape of two prisoners confined on board had already been allowed; that many more appeared anxious to quit the vessels, doubtless under the seductive attractions of the islands near; that several of the officers and men were engaged at a distance in making scientific observations; and that, under such circumstances, a confinement of the plaintiff on shore

for a few days might be a prudent precaution to prevent a defeat of the chief objects of the expedition.

This, therefore, without proof of malice, is not actionable, nor does it amount to putting a seaman on shore in a foreign country to desert him there, contrary to the act of congress, as that must be done maliciously, and then is properly punishable by statute, no less than on principles of admiralty law. 4 Statutes at Large, 117, § 10; Abbott on Shipping, 177; Jay v. Almy, 1 Woodb. & Min. 268, Fed. Cas. No. 7,236; United States v. Netcher, 1 Story, 307, Fed. Cas. No. 15,866. But if it was only to imprison him there for a few days, and, under all the circumstances, was considered by the defendant to be with more propriety and safety than in the squadron, it was justifiable, unless accompanied by malice. The William Harris, Ware, 367, 17 Fed. Cas. No. 17,695; The Nimrod, Ware, 9, Fed. Cas. No. 10,267; Wilson v. The Mary, Gilpin, 31, Fed. Cas. No. 17,823; 3 Kent Com. 182.

As to the cleanliness of the prison the healthfulness of the food, and the general treatment while there, the evidence is contradictory, and is not now a matter for our decision.

The only remaining consideration, in order to dispose of all which is left in any of the exceptions, is the competency of the commander to decide on these various questions without being amenable to the plaintiff in an action at law for any mere error of judgment in the exercise of his discretion, which may have been involuntarily committed under the exigencies of the moment.

In order to settle this point correctly, it being in itself a very important one, as well as running through several of the exceptions, it will be necessary to advert to the circumstances, that Captain Wilkes was not acting here in a private capacity and for private purposes; but, on the contrary, the responsible duties he was performing were imposed on him by the government as a public officer. In the next place, those duties were not voluntarily sought or assumed, but met and discharged in the routine of his honorable and gallant profession, and under high responsibilities for any omission or neglect on his part, instead of being a volunteer, as in most of the cases of collectors and sheriffs made liable. 2 Strange, 820; 6 D. & E. 443. Now, in respect to those compulsory duties, whether in reënlisting or detaining on board, or punishing or imprisoning on shore, while arduously endeavoring to perform them in such a manner as might advance the science. and commerce and glory of his country, rather than his own personal designs, a public officer, invested with certain discretionary powers, never has been, and never should be, made answerable for any injury, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty. See the cases hereafter cited.

Nor can a mandamus issue to such an officer, if he is intrusted with discretion over the subject-matter. Decatur v. Paulding, 14 Pet. 497, 599, Appx. 10 L. Ed. 559, 609; Brashear v. Mason, 6 How. 102, 12 L. Ed. 357.

His position, in such case, in many respects, becomes quasi judicial, and is not ministerial, as in several other cases of liability by mere ministerial officers. Jenkins v. Waldron, 11 Johns. 114, 6 Am. Dec. 359; Kendall v. United States, 12 Pet. 524, 9 L. Ed. 1181; Decatur v.

Paulding, 14 Pet. 516, 599, Appx. 10 L. Ed. 559, 609. And it is well settled that "all judicial officers, when acting on subjects within their jurisdiction, are exempted from civil prosecution for their acts." Evans v. Foster, 1 N. H. 377; 14 Pet. 600, App.

Especially is it proper, not only that a public officer, situated like the defendant, be invested with a wide discretion, but be upheld in it, when honestly exercising, and not transcending it, as to discipline in such remote places, on such a long and dangerous cruise, among such savage islands and oceans, and with the safety of so many lives, and the respectability and honor of his country's flag in charge.

In such a critical position, his reasons for action, one way or another, are often the fruits of his own observation, and not susceptible of technical proof on his part. No review of his decisions, if within his jurisdiction, is conferred by law on either courts, or juries, or subordinates, and, as this court held in another case, it sometimes happens that "a prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object." "While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the fact upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance." Martin v. Mott, 12 Wheat. 30, 6 L. Ed. 537.

Hence, while an officer acts within the limits of that discretion, the same law which gives it to him will protect him in the exercise of it. But for acts beyond his jurisdiction, or attended by circumstances of excessive severity, arising from ill will, a depraved disposition, or vindictive feeling, he can claim no exemption, and should be allowed none under color of his office, however elevated, or however humble the victim. 2 Carr. & Payne, 158, note; 4 Taunton, 67.

When not offending under such circumstances, his justification does not rest on the general ground of vindicating a trespass in private life, and between those not acting officially and not with a discretion. Because then, acts of violence being first proved, the person using them must go forward next, and show the moderation or justification of the blows used. 2 Greenleaf on Ev. § 99.

The chief mistake below was in looking only to such cases as a guide. For the justification rests here on a rule of law entirely different, though well settled, and is, that the acts of a public officer on public matters, within his jurisdiction, and where he has a discretion, are to be presumed legal, till shown by others to be unjustifiable. Gidley v. Palmerston, 7 J. B. Moore, 111; Vanderheyden v. Young, 11 Johns. (N. Y.) 150; 6 Har. & Johns. 329; Martin v. Mott, 12 Wheat. 31, 6 L. Ed. 537.

This, too, is not on the principle merely that innocence and doing right are to be presumed, till the contrary is shown. 1 Greenl. §§ 35-37. But that the officer, being intrusted with a discretion for public purposes, is not to be punished for the exercise of it, unless it is first proved against him, either that he exercised the power confided. in cases without his jurisdiction, or in a manner not confided to him, as with malice, cruelty, or wilful oppression, or, in the words of Lord Mansfield, in Wall v. McNamara, that he exercised it as "if the heart