deemed to have been abandoned, and the | shall operate merely to put an end to the accused shall be set free, or his bail dis- pending prosecution, depends upon the terms charged, as the case may be; Provided, how- used in the different statutes. Generally ever, That the supreme court of the District speaking, where the statute has provided of Columbia, holding a special term as a that the discharge shall be from imprisoncriminal court, or, in vacation, any jus- ment or bail, without other language, it has tice of said court, upon good cause shown been held not to operate as a statute of in writing, and when practicable, upon due limitation. On the other hand, where the notice to the accused, may, from time to statute has provided that the failure to time, enlarge the time for the taking action prosecute shall discharge the accused so far in such case by the grand jury." 31 Stat. as relates to the offense, or from the crime, at L. 1189, 1342, chap. 854. or he shall be acquitted of the offense charged in the indictment, failure to prosecute has been held to work a final discharge from the offense. Of the former class of cases are State v. Garthwaite, 23 N. J. L. 143; of the latter class are Ex parte McGehan, 22 Ohio St. 442; Com. v. Cawood, 2 Va. Cas. 527; State v. Wear, 145 Mo. 162, 46 S. W. 1099; Re Edwards, 35 Kan. 99– 103, 10 Pac. 539.

so to do indicates the intention to deal only | discharged for failure of the grand jury to with delays in action by the grand jury act, and then immediately rearrested, so against persons under arrest or bonds. It is that the statute will be defeated of its purdelay in the action of the grand jury, not pose to protect the accused. The question the cutting down of the time of prosecution of whether one who has made application for offenses, that is aimed at in this stat- to the court, and been discharged for fail ute. Much stress is laid in the argument of ure to find an indictment against him withcounsel for the respondents upon the ex- in the time limited, could again be arrested pression, "the prosecution of such charge without indictment, is not involved in this shall be deemed to have been abandoned." case. The question is, Is the prosecution But having reference to the previous part of the offense finally barred by this statof the section, "such charge" relates to the ute, so that the accused may not be one under which the accused has been com- held to answer upon an indictment mitted or held to bail. The section prefound after the nine months' period scribes the time within which the grand jury has elapsed? It is urged by counsel for the must act, and failing so to do, it is de- respondents that the power given the court creed that the prosecution shall be deemed to enlarge the time for taking action by the to have been abandoned, and the effect upon grand jury is not limited, and that the time the accused is not that he shall be dis- may be extended beyond the period of three charged from prosecution for the offense, years fixed by the general statute of limibut that he shall be set free, if imprisoned, tations. We cannot agree to this contention. or his bail discharged, if released on bond. We think the general statute of limitations The statute, it is observed, acts upon per- has not been repealed or modified by this sons committed to prison, and, with like section. The purpose of statutes of limitaeffect, upon those not incarcerated, but only tion is to finally bar all prosecution, and the held to bail. We think it would require purpose of the act under consideration, as clear and specific language to indicate a we view it, is to control the prosecution by legislative intent to bar the prosecution of requiring action by the grand jury, and, all offenses for the failure of the grand jury in default thereof, release the person of the to act within nine months of the arrest of accused or discharge him from bail, so far the accused, when the latter is at large up- as the pending prosecution is concerned. on bond. Again, if the contention of counsel While the construction of this section is not for the accused is adopted, one will be dis- free from difficulty, we think the view herecharged from further prosecution if the in expressed best effectuates the purpose and grand jury does not act upon the case, but intention of Congress in enacting this statif the grand jury does act, and the charge ute, viewed in the light of the language used against the accused is found to be unwar- and the objects intended. This view of the ranted, he is still subject to indictment un- case renders it unnecessary to pass upon til the three years of the statute of limi- other questions raised in the record. tations have run, while the person whose case has not been wholly investigated will be forever released from the offense. Furthermore, § 1044 does not apply to capital offenses, for such are expressly excluded from the operation of that section; but § 939, under consideration, makes no exception, and applies alike to all offenses, and would operate to discharge a person accused of murder as well as one accused of petty theft. But, it is urged, § 939 permits the court to control and extend the time for taking action by the grand jury, thereby indicating the purpose of Congress to make this statute one of limitation. But we do

not think the control of the time for taking action before the grand jury, given in this paragraph, enlarges the statute so as to make it applicable beyond the effect prescribed, which is upon the liberty of the accused or his freedom from the requirement to give bail. It is urged that if the construction insisted upon by the government is given to this statute the accused may be

The judgment of the Court of Appeals will be reversed, and the cause remanded with directions to reverse the judgment of the Supreme Court of the District of Columbia, and remand the cause to that court for further proceedings in accordance with this opinion.

(197 U. S. 386) UNITED STATES, Appt.,

v.

JOHN SMITH.

Court-martial-time for service of charges -necessity of authorization of general court-martial by President.

and specifications and order the court-mar- | confinement, except the sum of three dollars tial, but is the arrest resulting from the ($3) per month for necessary prison expreferring of the charges by the proper authority and the convening of the court-marpenses, and a further sum of $20 to be paid tial. him at the expiration of his term of confinement, when he shall be dishonorably discharged from the United States Navy."

2. The prohibition against the convocation of a general court-martial by the commander of a fleet or squadron without the previous authorization of the President, which is made by U. S. Rev. Stat. § 1624, art. 38, when

such fleet or squadron is "in the waters of the United States," applies only to those waters which are within what was termed by the act of March 3, 1901 (31 Stat. at L. 1108, chap. 852, U. S. Comp. Stat. 1901, P. 1040), the continental limits of the United

States.

[No. 184.]

The term of imprisonment prescribed in the sentence was somewhat mitigated by the Secretary of the Navy. Thereafter, on being released, Smith sued in the court of claims to recover the pay which would have been earned by him had he been entitled to receive the same during the period covered by the sentence. The right to recover was based on the averment that a copy of the charge had not been served on Smith when he was originally put under arrest on May 26, 1899,

Argued March 15, 1905. Decided April 3, it being claimed that for this reason the

1905.

judgment of the court-martial was void. After finding the facts as above recited, the

APPEAL from the Court of Claims to re- court of claims concluded, as matter of law,

view a judgment awarding the pay which would have been earned by the claimant but for his confinement under sentence of a naval court-martial. Reversed.

See same case below, 38 Ct. Cl. 257.

that the claimant was entitled to recover, and from the judgment entered upon such finding the government appealed.

Messrs. Edwin P. Hanna, Assistant Attorney General Pradt, and Felix Brannigan for appellant.

Messrs. John Spalding Flannery and Frederic D. McKenney for appellee.

Statement by Mr. Justice White: On May 26, 1899, John Smith was serving under enlistment as a fireman of the first class on board the United States naval vessel Yorktown, then at anchor in Iloilo harbor, Philippine Islands. On the date named Smith was reported to the commanding officer of the Yorktown as having refused to do duty, and consequently such officer ordered him "put under sentries as a prisoner in single irons for safekeeping to await trial by a general court-martial." Subsequently, on June 30, 1899, Rear Admiral Watson, the commander-in-chief of the United States naval force on the Asiatic station, convened a general court-martial, to meet on July, 3, 1899, for the purpose of trying accused persons who might be legally brought before the court, and on the same day a charge was preferred against Smith, by the rear admiral, accompanied with a specification, for refusing to obey a lawful order of his superior officer. Smith, who, as already stated, had been placed under arrest on May 26, 1899, was served on July 1, 1899, with a copy of the charge and specification which had been preferred against him, and an extra watch was put over him as well as over other prisoners who were being held for trial. On July 5, 1899, Smith was sent under guard before the court-martial. He was tried, found guilty, and sentenced "to be confined in such place as the Secretary of the Navy may direct for a period of one year, to perform extra police duties during such confinement, to lose all pay that may become due him during such *Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 93. †U. S. Comp Stat. 1901, p. 1116:

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

Article 43 of § 1624 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1117), upon which the court of claims based its legal conclusion that the action of the court-martial in question was void because the charge and specification were not served upon the claimant at the time of the original arrest, reads as follows: "The person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest."

It is conceded by the findings that at once, when the charge and specification were formulated by Rear Admiral Watson and the court-martial was ordered to be convened, a copy of the charge and specification was served upon Smith. It is also established by the findings that no objection as to tardiness of service was made at the time of trial. Conceding, arguendo solely, and without so deciding, that under these circumstances the objection as to the lateness of the service was jurisdictional, and could be collaterally inquired into, we think the contention is wholly devoid of merit. Nearly ten years before the trial in question was had, in the year 1890, the Secretary of the Navy submitted to the Attorney General the question of whether the arrest referred to in article 43 related to the preliminary

Comp. Stat. 1901, p. 1040), the continental limits of the United States. In other words, the provision in question did not take into

United States over territory beyond the seas and far removed from the seat of government, but contemplated waters within the United States in the stricter and popular sense of the term. Looking to the language used, in the light of the surrounding circumstances and the purpose which it was intended to accomplish (Platt v. Union P. R. Co. 99 U. S. 64, 25 L. ed. 429), it is, we think, manifest that the prohibition against the convocation by the commander of a fleet or squadron of a general court-martial, without the previous authorization of the President, was intended to be operative only when the fleet or squadron was in a home

arrest which might be consequent upon the | 1901 (31 Stat. at L. 1108, chap. 852, U. S. commission of an offense, or applied to the arrest made after charges had been formulated and a court-martial ordered. The Attorney General advised that the word "ar-view the dominion or sovereignty of the rest," as employed in article 43, did not relate to the preliminary arrest or detention of an accused person awaiting the action of higher authority to frame charges and specifications and order a court-martial, but to the arrest resulting from the preferring of the charges by the proper authority and the convening of a court-martial. 19 Ops. Atty. Gen. 472. The reasoning by which the Attorney General reached the conclusion just stated we think was absolutely conclusive. Doubtless the opinion became the rule of practice in the Navy, and the construction affixed by the Attorney General to the statute was sanctioned by this court in Johnson v. Sayre, 158 U. S. 109, 39 L. ed.port, as above defined. That is to say, that 914, 15 Sup. Ct. Rep. 773, and such construction has been reiterated in an opinion announced this day. Bishop v. United States, 197 U. S. 334, 25 Sup. Ct. Rep. 440,

49 L. ed.

Congress contemplated the necessity of an order from the President when the circumstances supposed to require the convening of the court-martial could be with facility submitted to the President for his action in the premises. To give a broad meaning to the expression "waters of the United States," as employed in article 38, by con

Whilst these considerations dispose of the contentions raised and passed on below, a new ground for reversal was urged at bar, founded on article 38 of § 1624 of the Re-struing those words as referring, not only vised Statutes. That article reads as follows:

"Art. 38. General courts-martial may be convened by the President, the Secretary of the Navy, or the commander-in-chief of a fleet or squadron; but no commander of a fleet or squadron in the waters of the United States shall convene such court without express authority from the President."

to the home waters, but to far distant waters, would, we think, defeat the plain purposes of Congress, and seriously impair, if not destroy, an important power vested in the commander of a fleet or squadron when at distant stations, remote from the home country. Certainly, if the remoteness from the continental limits of the United States is immaterial, and the restriction of article 38 is applicable to the commander when his fleet or squadron is within waters thousands of miles removed from the boundaries of the United States, in the restricted sense of that term, no good reason is apparent why the commander of a fleet or squadron should not have been forbidden, without the leave of the President, to convoke a general court-martial, irrespective of where his fleet or squadron might be situated.

Although it is not denied that Rear Admiral Watson was a commander of a fleet within the meaning of that expression as employed in article 38, it is insisted that, as he convened the court-martial while in Manila bay, about six weeks after the treaty with Spain by which the Philippine Islands were acquired by the United States, therefore the fleet or squadron under his command was "in the waters of the United States," within the meaning of those words as employed in the enactment in question, and there was no power in the commanderin-chief to convoke a court-martial without express authority from the President, which is not found to have been given. This ob- ALFRED W. CARTER, Guardian, Plff. in jection, if well taken, is jurisdictional, but in our judgment it is without merit; and we reach this conclusion wholly irrespective of the status of the Philippine Islands.

The clause in question was originally enacted in 1862, before even the acquisition of Alaska, and was intended, we think, to apply to those waters within what was termed by Congress in the act of March 3,

Judgment reversed.

Err., v.

(197 U. S. 348)

GEORGE D. GEAR, Circuit Judge, etc.

Courts power of Hawaiian judges at chambers-effect of organic act.

The power of the Hawaiian judges at chambers in proceedings not incident or ancillary to some cause pending before a court, conferred

by the Hawaiian laws in force at the pas- Messrs. Joseph J. Darlington and sage of the organic act of April 30, 1900 William F. Mattingly for plaintiff in 31 Stat. at L. 141, chap. 339), was preserved by the provision of § 81 of that act, continuing in force the previous laws of Hawaii concerning "the civil courts and their jurisdiction and procedure."

Mr. John S. Low, guardian, in propria persona.

Submitted March 3, 1905. Decided April 3, of the court:

This was a writ of error to review a judgment of the supreme court of the Territory of Hawaii denying a writ of prohi-flict with § 81 of the act of Congress ap