by John Marshall Harlan

“ It is, in substance and effect, nothing more than a declaration that the power theretofore exercised by the president, without the concurrence of the senate, of summarily dismissing or discharging officers of the army or navy, whenever in his judgment the interest of the service required it to be done, shall not exist or be exercised in time of peace, except in pursuance of the sentence of a court-martial, or in commutation thereof. ”

“ The statute permits an officer of the navy to be tried by a court-martial, more than one-half of whose members are his juniors in rank, if it cannot be avoided without injury to the service. Rear-Admiral Crosby, beng commander in chief of a squadron not operating or stationed in the waters of the United States,' had the power, without express authority from the president, to convene a general court-martial for the trial of the appellant. Rev. St. art. ”

“ In view of these adjudications, the judgment below may be sustained without reference to the inquiry whether the court-martial that tried Mullan was legally constituted, or whether he ceased to be an officer of the navy in consequence of the approval of the sentence by the president. The fact appears that Francis M. Green, under the appint ment of the president, by and with the advice and consent of the senate, was commissioned commander in place of Eastman, retired, and Mullan, dismissed. ”