We will first consider the second of the questions referred to the court of claims, namely: 'Were the proceedings and findings of said court-martial regular, and the sentence duly approved by the president of the United States, as required by law?' The sixty-fifth article of war, (2 St. 367, c. 20,) in force at the time of these proceedings, was as follows: 'Any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial whenever necessary. But no sentence of a court-martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial, in the time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution until after the whole proceedings shall have been transmitted to the secretary of war, to be laid before the president of the United States for his confirmation or disapproval and orders in the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer, for the time being, as the case may be.'
Thus it appears that the sentence of a general court-martial in time of peace, to the effect that a commissioned officer be cashiered,-dismissed from service,-is inoperative until approved by the president. Before then it is interlocutory and inchoate only. Mills v. Martin, 19 Johns. 7, 30; Sim. Cts. Mart. (6th Ed.) c. 17, p. 294. A court-martial organized under the law of the United States is a court of special and limited jurisdiction. It is called it o existence for a special purpose, and to perform a particular duty. When the object of its creation has been accomplished it is dissolved. 3 Greenl. Ev. § 470; Brooks v. Adams, 11 Pick. 442; Mills v. Martin, supra; Duffield v. Smith, 3 Serg. & R. 590, 599. Such, also, is the effect of the decision of this court in Wise v. Withers, 3 Cranch, 331, which, according to the interpretation given it by Chief Justice MARSHALL in Ex parte Watkins, 3 Pet. 193, 207, ranked a court-martial as 'one of those inferior courts of limited jurisdiction whose judgments may be questioned collaterally.' To give effect to its sentences, it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with; and that its sentence was conformable to law. Dynes v. Hoover, 20 How. 65, 80; Mills v. Martin, 19 Johns. 33. There are no presumptions in its favor so far as these matters are concerned. As to them, the rule announced by Chief Justice MARSHALL in Brown v. Keen, 8 Pet. 112, 115, in respect to averments of jurisdiction in the courts of the United States, applies. His language is: 'The decisions of this court require that averment of jurisdiction shall be positive; that the declaration shall state expressly the facts on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.' All this is equally true of the proceedings of courts-martial. Their authority is statutory, and the statute under which they proceed must be followed throughout. The facts necessary to show their jurisdiction, and that their sentences were conformable to law, must be stated positively; and it is not enough that they may be inferred argumentatively.
As the sentence now under consideration involved the dismissal of Runkle from the army, it could not become operative until approved by the president, after the whole proceedings of the court-martial had been laid before him. The important question is therefore whether that approval has been positively shown.