Dynes v. Hoover, a direct reference to what the law was in England, that this court said, in Wise v. Withers, 3 Cr., 337, that in such a case "the court and the officers are all trespassers." When we speak of proceedings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistaken rulings in respect to evidence or law, but of a disregard of the essentials required by the statute under which the court has been convened to try and to punish an offender for an imputed violation of the law. Courts martial derive their jurisdiction and are regulated with us by an act of Congress, in which the crimes which may be committed, the manner of charging the accused, and of trial, and the punishments which may be inflicted, are expressed in terms; or they may get jurisdiction by a fair deduction from the definition of the crime that it comprehends, and that the Legislature meant to subject to punishment one of a minor degree of a kindred character, which has already been recognised to be such by the practice of courts martial in the army and navy services of nations, and by those functionaries in different nations to whom has been confided a revising power over the sentences of courts martial. And when offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognised to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance. With the sentences of courts martial which have been convened regularly, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the rules and articles of war, irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrate or civil courts. But we repeat, if a court martial has no jurisdiction over the subject-matter of the charge it has been convened Dynes v. Hoover. to try, or shall inflict a punishment forbidden 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. (IIarman v. Tappenden, 1 East., 555; as to ministerial officers, Marshall's case, 10 Cr., 76; Morrison v. Sloper, Wells, 30; Parton v. Williams, B. and A., 330; and as to justices of the peace, by Ld. Tenterden, in Basten v. Carew, 3 B. and C., 653; Mules v. Calcott, 6 Bins, 85.) Such is the law of England. By the mutiny acts, courts martial have been created, with authority to try those who are a part of the army or navy for breaches of military or naval duty. It has been repeatedly determined that the sentences of those courts are conclusive in any action brought in the courts of common law. But the courts of common law will examine whether courts martial have exceeded the jurisdiction given them, though it is said, "not, however, after the sentence has been ratified and carried into execution." (Grant v. Gould, 2 H. Black, 69; Ship Bounty, 1 East., 313; Shalford's case, 1 East., 313; Mann v. Owen, 9 B. and C., 595; in the matter of Poe, 5 B. and A., 681, on a motion for a prohibition.) A judge, or any person acting by authority as such, where he has over the subject-matter, and over the person, a general jurisdiction which he nas not exceeded, will not be liable to have his judgment examined in an action brought against himself; but if jurisdiction be wanting over the subject-matter, and over the person, such judgment would be examinable. (Hammond v. Howel, 1 Mod., 184; Garnett v. Ferrand, 6 B. and C., 611; Moslyn v. Fabugas, Cow., 172; Bonham's case, 8 Co., 114; Greenwell v. Burwell, 1 Le Roy, 454; by Holt, C. J., 1 Le Roy, 470; Lumley v. Lance, 2 Le Roy, 767; Basten v. Carew, 3 B. and C., 649. The preceding cited cases relate to judges of record. As to judges not of record, ecclesiastical judges, Acherly v. Parkerson, 3 M. and S., 411. Commissioners of court of bequests, Aldridge v. Haines, 2 B. and Ad., 395. As to returning officer of election, Ashby v. White, 2 Ld. Raym., 941; Cullen v. Morris, 2 Start, 577.) In this case, all of us think that the court which tried Dynes had jurisdiction over the subject-matter of the charge against him; that the sentence of the court against him was not forbidden by law; and that, having been approved by the Secretary of the Navy as a fair deduction from the 17th article of the act of April 23d, 1800, 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, and in virtue of his Withers v. Buckley et al. constitutional obligation, that "He shall take care that the We affirm the judgment of the Circuit Court. 20h 84 7wa327 L-ed 816 DAVID D. WITHERS, PLAINTIFF IN ERROR, V. RANSOM BUCKLEY, DANIEL WILSON, NEWTON HUFF, HUGH R. DAVIS, DOUGLAS H. COOPER, CHARLES Vaughan, AND JAMES METCALF. 23wa 68 92 552 104 79 123 166 This court has no jurisdiction, under the 25th section of the judiciary act of 1789, of the question whether or not a law of a State is in opposition to the Constitution of that State. Therefore, where it is alleged that the Constitution of a State declares that private property shall not be taken for public uses, and that the highest court of the State has sustained the validity of a law which violates this constitutional provision, this court has no power to review that decision. The fifth article of the amendments of the Constitution of the United States was intended to prevent the Government of the United States from taking private property for public uses without just compensation, and was not intended as a restraint upon the State Governments. A law of the State of Mississippi, for improving the navigation of a river which Being admitted upon a footing of equality with the other States, the State of THIS case was brought up from the High Court of Errors and Appeals of the State of Mississippi, by a writ of error issued under the 25th section of the judiciary act. The case is stated in the opinion of the court. It was argued by Mr. Benjamin for the plaintiff in error, and Mr. Carlisle for the defendants. There was also a brief filed by Mr. Yerger for the plaintiff in error, and by Mr. Badger and Mr. Carlisle for the defendants. The points made on behalf of the plaintiff in error are taken from the brief of Mr. Yerger: I. There is no doubt of the jurisdiction of the court of equity upon the case stated by the bill. (4 Cush. Rep., 86; 3 Wend. Rep., 636; 2 John. Ch. Rep., 165; 6 Paige's Rep., 262.). Withers v. Buckley et al. II. Apart from any public or private nuisance, the bill alleges special injury to the complainant, which is within the principle of the, above-cited decisions, and others hereinafter cited. III. We contend that the act of 1850 is unconstitutional. First, because it provides no compensation to the complainant; and, secondly, that it is void, because prohibited by the ordinance of Congress. 1. As to its unconstitutionality. The land of complainant is on the waters of Old river and the Narrows. The water rans through it. This is not a navigable stream, according to common-law meaning of the term. But a grant of land on or bounded by such a stream as this, passes the right to the land to the middle of the stream. The use of the water also, as an incident, passes by a grant, and is as sacred a right as the land itself. (See Morgan v. Reading, 3 Smedes and Mar.; 2 John. Ch. Rep., 165.) Where a grant of land is on a stream above the ebb and flow of the tide, the land passes, and the water also, subject only to the right of the public to navigate it. The use of the water is a part of the freehold. (Angel on Water-courses, pp. 1-11, 12, 13-29; Co. Litt., 4; 2 Brown Com., 142; Bullen v. Raynells, 2 N. Ham., 255.) In all cases, above the ebb and flow of the tide, a right of property in the water passes with a grant of the land, and it cannot be divested or taken away without compensation, as the above authorities show. The case from Harrington's Rep., and from 2 Peters Rep., were cases of navigable waters according to common law, as the cases show, in which case there can be no individual right to the water. In the case in 8 Cowen, 146, the only injury to plaintiff was the temporary erection of bridges to build the pier, and that it was like materials used in building, it might be a temporary inconvenience to a neighbor, &c. (See pages 150 and 151.) It may be said that the principle of the common law, as to streams where the tide ebbs and flows, applies to the waters of the Mississippi and the streams which flow into it. But this was the great point, argued most laboriously, and decided by the High Court of Mississippi, in the case of Morgan v. Reading, 3 Sm. and Mar., 366, and numerous other authorities are against it. (See also Gardner v. Village of Newberry, 2 John. Ch. Rep., 165; Belknap v. Belknap, 2 John. Ch., 463; 3 Paige Rep., 577; 1 Dev. Rep., 121; 6 Paige Rep., 262; 4 Mason, 379.) IV. But the ordinance of Congress also prevents the Legis Withers v. Buckley et al. lature from obstructing the navigation of the Mississippi and its waters. It may improve them, but it cannot obstruct, by damming up the water, or diverting it from its natural course, so as to entirely deprive its navigation. (Hutchinson's Code, 55, 57, 59.) The case in 1 McLean's Rep. is directly in point. It decides that a private injury must be alleged; that the mere fact of a right to navigate, without using or intending to use the right, and without private injury alleged, would not do. But when the navigation was obstructed, and a private injury was alleged, equity would interfere. (See pages 343, 344, 346, 350, 351, 352, 353.) Act of 1819, p. 106, declares Homochitto navigable, and the bill alleges that from time immemorial the grantors of plaintiff and himself used the water to supply this place, and to transport cotton and supplies to and from his place. Mr. Carlisle, after commenting upon the points presented by the counsel for the plaintiff in error, presented the following view of the case: The jurisdiction of this court is assumed upon the allegation, which the plaintiff in error is to maintain, that the statute of Mississippi is unconstitutional; because it purports to authorize the taking of private property for public use, without just compensation; and because it is repugnant to the 4th section of the act of 1st March, 1817, (3 Stat., 349.) But the bill does not show any case of taking private property for public use. The complaint is of an apprehended consequential injury, resulting from diverting the waters of the Homochitto. No land of the complainant lies on that river. It is a navigable river, lying wholly within the territorial limits of the State of Mississippi. As such, it is subject to the power exercised by this statute; and its waters are not the subject of private property in any sense of the words "private property in the Constitution, or in any sense which can interfere with the full exercise of the power in question, according to the discretion of the Legislature. If the plaintiff in error suffer loss through the lawful exercise of this public power, it is damnum absque injuria. Least of all (it is submitted) can a party so situated restrain by injunction the exercise of such a power. As to the supposed conflict with the act of 1817, the obvious answer is, that the statute is not to obstruct the Homochitto, but to improve its navigation. "Old river and the Narrows" are not "navigable rivers and waters," in the meaning of that act. Besides, even if they were, it is submitted that the plain |