questions raised was as to the legality of the punishment inflicted on the plaintiff. Judge Wayne delivering the opinion of the court said: "If a court-martial has no jurisdiction over the subject-matter of the charge it has been convened to try or shall inflict a punishment forbiden by the law, though its sentence shall be approved by the officers having a revisory power of it, civil courts may on an action by a party aggrieved by it inquire into the want of the court's jurisdiction and give him redress" (pp. 82, 83). And he further said: "In this case all of us think that the ocurt which tried Dynes had jurisdiction over the subject of the charge against him; that the sentence of the court was not forbidden by law, and that having been approved by the Secretary of the Navy as a fair deduction from the seventeenth article of the act of 23rd April, 1800 (which in this respect is similar to the twelfth article), and that Dynes having been brought to Washington as a prisoner by the direction of the Secretary, that the President of the United States, as constitutional commander-in-chief of the Army and Navy, &c., violated no law in directing the marshal to receive the prisoner Dynes, &c., for the purpose of transferrng him to the penitentiary of the District of Columbia. "
If the punishment by imprisonment at hard labor in the penitentiary were regarded as contrary to the usage of the naval service it would for that reason as we have already seen be forbidden by law. But the court in Dynes v. Hoover having decided that it is not forbidden by law it follows that it is not a punishment contrary to the usage of the service. If this decision stood alone it would be sufficient to vindicate the sentence against Toombs from the objection made to it. But it is further sustained by the case of Charles Crowell, a seaman who was convicted of striking, disobeying and treating with contempt his superior officers and sentenced to three years' confinement at hard labor in the penitentiary of this District. This sentence being referred to Attorney-General Black for his opinion as to its legality received his approval. (Man. Op., Numbers 30, Sept. 5, 1857.) Our naval records furnish other instances of the same sentence pronounced by naval courts-martial against convicted offenders, and although they were not always carried into effect I am not aware that the failure to do so resulted from any doubt of their legality.
But the chief authority on which the prisoner relies to sustain his objection is a case mentioned by Hickman, 266, where in 1797 the members of an English naval court-martial requested the opinion of the attorney-general, solicitor-general and the counsel for the Admiralty whether, in cases where by the act 22 Geo. II, c. 33, they have the discretionary power of punishing with death, or such other punishment as they shall deem the prisoner to deserve, the court had power to sentence the prisoner to transportation, solitary inprisonment or hard labor, or to inflict other than the usual corporal punishment or imprisonment for any term not exceeding two years, and they received for answer that the third section of act 22 Geo. II limited the sentence of imprisonment to two years, and as to their discretionary power of inflicting such other punishment except death as the court should deem the prisoner to deserve the opinion was that the discretion must be limited by the usge of the service with respect to * * * sentences of that kind, and that the court would not pronounce the sentence of transportation, hard labor or any sort of imprisonment except such as had been usual.
It may be proper to observe here that the limitation of the length of imprisonment contained in the act of 22 Geo. II and subsequent English