Mr. Chief Justice Waite delivered the opin- Internal Revenue Collector-sureties—rights of—

Pursuant to that requirement, the defendant first named, having been appointed such colSubmitted Nov. 3, 1879. Decided Nov. 10, 1879. lector, on the 12th of January, 1867, gave the bond described in the complaint, and the other

APPEAL from the Circuit Court of the Unit- defendants signed the same as that she coll, tot

ed States for the Eastern District of Mis- charge in the complaint being that the collector

III. That the court erred in instructing the jury that the transcript was prima facie evidence of the correctness of the item charged therein as the amount of error by the assessor in footing lists, as per report of the supervisor.

IV. That the court erred in instructing the jury that, upon the evidence given, the bond was a voluntary bond and was not extorted, and that the collector and his sureties were liable upon it.

V. That the court erred in instructing the jury that the direction to the collector contained in the letter of the Commissioner to execute the bond, he having previously given one, must be considered as the direction of the Secretary of the Treasury.

sureties to the ruling of the court, that they were liable for that charge. No objection was made to the charge as against the collector, but the objection was that the sureties were not liable, because the money was received under the subsequent Act.

Viewed in that light, it must be assumed that the charge was a proper one as against the collector and, inasmuch as it was money collected by law of the owner or producer of the articles to be gauged and inspected, it was clearly public money in his hands to which he had no legal right. By the terms of the bond in suit the sureties are to become responsible if their principal does not justly and faithfully account for and pay over to the United States all Five things are established by the Act of Con- public moneys which may come into his hands gress: (1) That it is the duty of the Commis- or possession. Beyond doubt, the amount went sioner to pay over daily to the Treasurer all pub-into his hands and possession as public money, lic moneys which may come into his posses- and in the judgment of the court here, the rulsion. (2) That the Treasurer is required to give ing of the court below, that the sureties are proper receipts for the money, and keep a faith- liable for it, is correct. U. S. v. Powell, 14 Wall., ful account of the same. (3) That it is also the 493-502 [81 U. S., XX., 726–8]; U. S. v. Singer, duty of the Commissioner, at the end of each 15 Wall., 111-121 [82 U. S., XXI., 49–51]. month, to render true and faithful accounts of all 3. When suit is brought in any case of depublic moneys received or paid out or paid to linquency of a revenue officer or other person the Treasurer, and to exhibit proper vouchers accountable for public money, a transcript from for the same. (4) That it is the duty of the Fifth the books and proceedings of the Treasury DeAuditor to receive such vouchers and examine partment, certified by the register, and authenthe same, and to certify the balance, if any, and ticated under the seal of the department, *** to transmit the accounts with the vouchers and shall be submitted as evidence; and the court certificate to the first comptroller for his decis- trying the cause shall be authorized to grant ion thereon. (5) That it is the duty of the Com- judgment and award execution accordingly. R. missioner, when such accounts are settled as S., sec. 886; Bruce v. U. S., 17 How., 439 [58 provided in that section, to transmit a copy U. S., XV., 130]; Smith v. U. S., 5 Pet., 292; thereof to the Secretary of the Treasury. 13 Cox v. U. S., 6 Pet.,172; Hoyt v. U. S.,10 How., Stat. at L., 223. 109.

Argument to show that by the true construction of that section the Fifth Auditor is the proper officer to audit such accounts is scarcely necessary, as it is clear that the Act contemplates that they should be audited, and that it does not devolve the duty upon any other officer. Conclusive support to that theory, if more be needed, is also derived from the first paragraph of section 277 of the Revised Statutes, which, among other things, provides that the Fifth Auditor shall receive and examine all reports of the Commissioner of Internal Revenue, which, of course, embraces such accounts as that of the collector in this case, as it includes all the accounts rendered in the department of the Commissioner. R. S., 2d ed.,sec. 277, p. 46. 2. Authority to appoint gaugers was conferred by the 53d section of the Act imposing taxes on distilled spirits and tobacco, and for other purposes. 15 Stat. at L., 147. Fees for gauging and inspecting, as prescribed by the Commissioner, were to be paid to the collector by the owner or producer of the articles to be gauged and inspected. Such fees were to be retained by the collector until the last day of each month, when the aggregate amount of fees so retained was, under regulation of the Commissioner, to be paid to the officers performing that duty, not to exceed, however, the rate of $3,000 per annum.

Four hundred and ninety-four dollars and thirty-eight cents, money collected from that source in excess of what the collector had paid out, remained in his hands, and was charged in the accounts as settled by the accounting officers of the Treasury. Due exception was taken by the

Treasury settlements of the kind are only prima facie evidence of the correctness of the balance certified; but it is as competent for the accounting officers to correct mistakes and to restate the balance as it is for a judge to change his decree during the term in which it was entered. U. S. v. Eckford, 1 How., 250. Errors of computation against the United States are no more vested rights in favor of sureties than in favor of the principal. All such mistakes in cases like the present may be corrected by a restatement of the account.

4. Sufficient appears to show that the principal defendant was appointed collector March 28, 1865, in the recess of the Senate, to hold until the expiration of the then next session of Congress, and no longer. On the 25th of July following, he was appointed to the same office by the President and was confirmed by the Senate. Due notice of his appointment was given, and he was furnished with a blank form of bond, which, on November 2, 1866, he executed with sureties; but the bond being several and not joint and several, as it should be, he was officially requested to execute a new bond correcting that error. In pursuance of that request, on the 12th of January of the next year he executed the bond described in the complaint, and from the date of the first bond to the date of the second his accounts were settled by the treasury officers under the first bond. When the second bond was offered in evidence, the defendant objected to its admissibility; but the court overruled the objection, and instructed the jury that it was not extorted, which instruction constitutes the fourth exception.

Evidence to support the charge of duress is | answer before a general court-martial, convened entirely wanting. Instead of that, the defend- pursuant to the order of that officer on board ant testified that he did not remember that he the United States ship Essex, then stationed at made any objection to executing the bond, and Rio Janerio, in Brazil. The court found the supposed that he did it because the Commis- petitioner guilty, and sentenced him accordingsioner had given such directions. ly. The admiral declined to approve the sen5. Exception was also taken to the instruc- tence and remitted the proceedings back to the tion of the court that the direction of the Com-court, that the sentence might be revised. The missioner to execute a new bond must be con sidered as the direction of the Secretary, which is so obviously correct as to require no argument in its support, as it is matter of common knowledge that the Commissioner is a subor dinate officer of the Treasury Department. Dugan v. U. S., 3 Wheat., 172; U. S. v. Kirkpat rick, 9 Wheat., 720; Hamilton v. Dillin, 21 Wall., 73 [88 U. S., XXII., 528].

Suffice it to say that in view of these suggestions it is clear that there is no error in the record.

Judgment affirmed.

Ex Parte ALVIN R. REED.
(See S. C., 10 Otto, 13-23.)

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 Naval court martial-regulations of the navy-more severe. It was approved by the admiral, revision of sentence—jurisdiction—habeas cor- and ordered to be carried out. The court was

pus.

1. A naval court-martial has jurisdiction to try a paymaster's clerk.

subsequently dissolved. While in confinement, under the sentence, on board a naval vessel at Boston, the petitioner sued out a writ of ha 2. The Secretary of the Navy is authorized to es- beas corpus, and brought his case before the Cirtablish Regulations of the Navy," with the ap-cuit Court of the United States for the District proval of the President, which have the force of law. 3. 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. The proceedings must be sent back for revision before the

court shall have been dissolved.

4. Where such court has jurisdiction over the person and the case, its proceedings cannot be collaterally impeached for any mere error or irregularity. Every act of a court beyond its jurisdiction is void.

5. A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner upon such writ, the sentence under which he is held must be, not merely erroneous and voidable, but absolutely void.

[No. 5, Original.] Argued Oct. 27, 1879. Decided Nov. 10, 1879

APPLICATION for a writ of habeas corpus.

The case is sufficiently stated by the court.
Mr. Geo. S. Boutwell, for petitioner.
Mr. Charles Devens, Atty-Gen., in oppo-
sition.

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 sum mary 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 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

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 inthe court of chivalry of former times. 3 Christended originally to be a partial substitute for tian's Bl., 68, 108; Bouv. L. Dic., tit. Courtsmartial. The difference between military law and martial law is too well known to require any remark. 1 Kent, Com., 12th ed., 241, n. 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." 2 Campbell, Lives of Ch. J., 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, sec. 8 and amendment 5. In Dynes v. Hoover, 20 How., 65 [61 U. S., XV., 838], 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.

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.

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," R. S., sec. 1624, arts. 4, 14; and it embraces, besides the frauds enumerated, "any other fraud against the United States." R. S., sec. 1624, art. 14.

In case of conviction, adequate punishment is required to be adjudged. R. S., sec. 1624,

art. 51.

Except where the sentence is death or the dis- We do not overlook the point that there must missal of a commissioned or warrant officer, it be jurisdiction to give the judgment rendered, may be executed when confirmed by the officer as well as to hear and determine the cause. If ordering the court. R. S., sec. 1624, art. 53. a magistrate having authority to fine for assault The place of paymaster's clerk is an impor- and battery should sentence the offender to be tant one in the machinery of the navy. Their imprisoned in the penitentiary, or to suffer the appointment must be approved by the com- punishment prescribed for homicide, his judgmander of the ship. Their acceptance and agreement would be as much a nullity as if the prement to submit to the laws and regulations for liminary jurisdiction to hear and determine had the government and discipline of the navy must not existed. Every act of a court beyond its jube in writing, and filed in the department. risdiction is void. Nash ("Cornett") v. Williams, They must take an oath and bind themselves to 20 Wall., 226 [87 U. S., XXII., 254]; Windsor v. serve until discharged. The discharge must be McVeigh, 93 U. S., 274 [XXIII., 914]; 7 Wait, by the appointing power, and approved in the Act. and Def., 181. Here there was no defect same manner as the appointment. They are of jurisdiction as to anything that was done. required to wear the uniform of the service; Beyond this we need not look into the record. they have a fixed rank; they are upon the pay- Whatever was done, that the court could do un roll, and are paid accordingly. They may also der any circumstances, we must presume was become entitled to a pension and to bounty land. properly done. If error was committed in the Navy Reg. of August 7, 1876, p. 95: In re Bo- rightful exercise of authority, we cannot corgart, 2 Sawy., 396; U. S. v. Bogart, 3 Ben., 257; rect it. R. S., secs. 4695, 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. at L., 565; R. S., sec. 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.

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 [71 U. S., XVIII., 281].

The application of the petitioner is, therefore, denied.

Cited-109 U.S., 340; 6 Sawy., 241.

UNITED STATES, Piff.,

v.

HERMAN HIRSCH ET AL.

(See S. C., 10 Otto, 33-36.)

It is not in the power of the revising authority to compel a court to change its sentence, where, Crimes under revenue laws-limitations as to. 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., ch. 5, secs. 262-264.

Such regulations have the force of law. Gratiot v. U. S., 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.

1. The crimes of a false classification of goods as to value and quality, and effecting an entry of goods at less than the true weight or measure, arise under the revenue laws and are barred by the five years' Statute of Limitations.

2. A conspiracy to defraud the United States out of duties on imported merchandise, is not a crime, arising under the revenue laws, and is barred by the three years' Statute of Limitations. [No. 179.]

ON

Argued Oct. 23, 1879. Decided Nov. 10, 1879.
N a certificate of division in opinion between
the Judges of the Circuit Court of the
United States for the Southern District of New
York.

The question on which the Judges were divided, sufficiently appears in the opinion of the Court.

Mr.S. F. Phillips, Solicitor-Gen., for plaintiff.

Messrs. Weeks & Foster and Geo. Hoadly, for respondents.

Mr. Justice Miller delivered the opinion of the court:

The defendants were prosecuted on an indictment with four different counts, to all of which they pleaded the Statute of Limitations. The indictment was found on the 3d day of February, 1877, and the offenses were charged to have been committed on the 13th of September, 1873.

The first two counts are framed under section 5440 of the Revised Statutes, and set out a conspiracy to defraud the United States of the duties on certain goods imported from abroad.

The other two counts are drawn under section 5445, and charge the defendants with a false entry of the goods at the custom-house, by a fraudulent notice and by a false classification as to quality and value.

The Judges of the circuit court certify a division of opinion on the question, "whether the trial is barred by section 1044, the indictment having been found more than three years after the commission of the alleged offense, or whether it is within the provision of section 1046, as having been found within five years next after the commission of the offense.

Section 1044 enacts that "No person shall be prosecuted for any offense, not capital, except as provided in section 1046, unless the indictment is found within three years next after such offense shall have been committed." It is clear that this section is a bar to the prosecution, unless the case comes within the provision of section 1046. It is there declared that" No person shall be prosecuted, tried, or punished for any crime arising under the revenue laws, or the slave trade laws of the United States, unless the indictment is found, or the information is instituted, within five years next after the committing of such crime."

something more than the common law definition of a conspiracy is necessary to complete the offense, to wit: some act done to effect the object of the conspiracy, it remains true that the combination of minds in an unlawful purpose is the foundation of the offense, and no party could be convicted on the overt Act under this section who had not joined in the previous conspiracy.

Nor does the section, as found in the Revised Statutes or in the original Act, make any special reference to the revenue or to revenue laws. Its language is: "If two or more persons conspire, either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more such parties do any act to effect the object of the conspiracy, all the parties shall be liable," etc.

The conspiracy here described is a conspiracy to commit any offense against the United States. The fraud mentioned is any fraud against the United States. The fraud may be against the coin, or to cheat the Government of its land or other property. The offense against the United States may be treason, and persons have been convicted under this statute for a conspiracy to do the acts which are defined to be treason.

Since, then, the section does not mention the revenue or the revenue laws, but is one which in terms includes every form of conspiracy against the United States, and every form of conspiracy to defraud the Government, it is difficult to see how the crimes which it creates and which are punishable under it, can be said to arise under the revenue laws. Specific acts which are violations of the laws made to protect the revenue may be said to be crimes arising under the revenue laws, as are those in the third and fourth counts; but a conspiracy to defraud the Government, though it may be directed to the revenue as its object,, is punishable by the general law against all conspiracies, and can hardly be said, in any just sense, to arise under the revenue laws.

In support of the opposite view, it is said that section 5440 was originally section 30 of the Act of March 2, 1867, 14 Stat. at L., 484, and as that statute was a revenue law, this section must be held also to be a revenue law.

It must be admitted that, in construing any part of the Revised Statutes, it is admissible, and often necessary, to recur to its connection in the Act of which it was originally a part.

The question before us then is, whether the indictment describes crimes arising under the revenue laws of the United States. There can be little doubt that the crimes set out in the third and fourth counts, conforming as they do to the description of the offense found in section The force of the argument arising from find5445, of a false classification of goods as to value ing an enactment in a statute directed mainly and quality, and effecting an entry of goods at to a particular subject is much diminished by less than the true weight or measure, arise un- our experience of the manner in which inconder the revenue laws. The section is one in-gruous legislation is combined in the same bill tended solely for the protection of the revenue arising from customs, and is found originally in the Act of March 4, 1863, 12 Stat. at L., 737, which is entitled An Act to Prevent Frauds Upon the Revenue, and for Other Purposes.' That this section which is section 3 of that statute is a revenue law, is beyond question, and the offense defined by it is, therefore, a crime arising under the revenue laws of the United States.

With regard to the first two counts, the answer is not so clear.

The gravamen of the offense here is the conspiracy. For this there must be more than one person engaged. And though by the statute

as passed by the two Houses of Congress. The important principle which was revolutionary in the law of evidence, by which parties to suits and persons having a pecuniary interest in the results are made competent witnesses, is found in a few words, inserted as a proviso to an ap propriation bill.

The Act of 1867 is entitled "An Act to Amend Existing Laws Relating to Internal Revenue, and for Other Purposes," and it consists of thirty-four sections. Every section, except the one defining conspiracies, has reference to internal revenue and, if the argument is worth anything, the statute must be limited to that kind of revenue.