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8 708. Courts Martial.

The tribunals in which those who violate the military law are commonly tried (except where urgency demands a more summary method) are termed courts martial. Article 64 of the Articles of War provides:

“ The officers and soldiers of any troops, whether militia or others mustered and in pay of the United States, shall at all times and in all places be governed by the Articles of War and shall be subject to be tried by courts martial.”

General courts martial consist of any number of officers from five to thirteen, but not of less than thirteen except when to convene that number would be manifestly injurious to the service. S

Commissioned officers are triable only before these general courts martial, and, when it can be avoided, the officers composing the court are not to be inferior in rank to the accused.

For the trial of enlisted men for certain offenses summary courts, composed of one officer, appointed by the commanding officer, are provided. There is also provision made for garrison courts martial consisting of three officers for the trial of offenses not capital.

These military tribunals are presided over, as said, by officers detailed for the purpose. No provision is made either for presentment or indictment by jury. The constitutionality of this is expressly provided for by the Fifth Amendment to the Constitution which declares that “no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger.” There is no constitutional necessity for a trial jury in courts martial for the reason that these courts are not federal judicial tribunals, and, therefore, no more than territorial courts, are within the application of the Sixth Amendment to the Constitution.

Courts martial are, in fact, agencies of the Executive.

8 Art. 75 of the Articles of War. 9 Art. 79, Articles of War.

8 709. Powers of Courts Martial; Jurisdiction of Civil Courts

to Review Proceedings of. A leading case fixing the constitutional status of courts martial is Dynes v. IIogver, to decided in 1858. This was an action of trespass and false imprisonment brought by the plaintiff, lately a seaman in the United States navy. The defendant pleaded that the imprisonment was by the authority of a naval general court martial convened under an act of Congress. The plaintiff demurred to the plea on the ground that the court martial had been without jurisdiction. Justice Wayne, delivering the opinion of the Supreme Court, after referring to the various constitutional provisions, said:

“ These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations, and that the power is given without any connection between it and the third article of the Constitution defining the judicial power of the l'nited States, indeed, that the powers are entirely independent of each other.

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 whieh 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 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 of a party aggrieved by it, inquire into the want of the court's jurisdiction, and give him redress."

10 20 How. 65; 15 L. ed. 838.

From this decision it appears that, when acting within their jurisdiction, both as to the parties and to the subject-matter, courts martial are not subject to the jury provision of the Constitution, which apply only to the federal judiciary proper, nor are their decisions subject to review by the civil courts. In assuming jurisdiction, however, they, in a sense, act at their peril, for this question may be examined into by the civil courts, and if no jurisdiction is found, all acts committed by them are trespasses, punishment and damages for which the civil courts will award and the executive officers enforce.

In Tarble's case," decided in 1872, was examined the right of a state court by writ of habeas corpus to inquire whether an individual was a member of the United States army and navy and, therefore, subject, as such, to federal military law. The court deny this right, and assert that this was a question exclusively for the federal civil courts to determine. 12

11 13 Wall. 397; 20 L. ed. 597.

12 “ The important question is presented by this case, whether a state court commissioner has jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers into the military service of the United States, and discharge them from such service when, in his judgment, their enlistment has not been made in conformity with the laws of the United States. The question presented may be more generally stated thus: whether any judicial officer of a State has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States, by an officer of that Government. For it is evident if such jurisdiction may be exercised by any judicial officer of a State, it may be exercised by the Court Commissioner within the county for which he is appointed; and if it may be exercised with reference to soldiers detained in the military service of the United States, whose enlistment is alleged to have been illegally made, it may be exercised with reference to any other department of the public service when their illegal detention is asserted.d It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of the authority is affirmed. The jurisdiction, if it exist at all, can only be limited in its application by the legislative power of the State. It may even reach the parties imprisoned under sentence of the National Courts, after regular indictment, trial and conviction, for offenses against the laws of the United States. As we read the opinion of the Supreme Court of Wisconsin in this case, this is the claim of authority asserted by that tribunal for itself and for the judi

8 710. Jurisdiction of Courts Martial Over Offenses Which Are

also Violations of the Local Civil Law. In Coleman v. Tennessee's the court say: “ We do not call in question the correctness of the general doctrine

that the cial officers of that State. It does, indeed, disclaim any right of either to interfere with parties in custody, under judicial sentence, when the National Court pronouncing sentence had jurisdiction to try and punish the offenders; but it asserts, at the same time, for itself and for each of those officers, the right to determine, upon habeas corpus, in all cases, whether that court ever had such jurisdiction.”

After referring to the position taken by the Supreme Court in Ableman v. Booth (21 How. 506; 16 L. ed. 169) Justice Field continues:

“Among the powers assigned to the National Government, is the power to raise and support armies' and the power to provide for the government and regulation of the land and naval forces.' The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any state authority, how the armies shall be raised; whether by voluntary enlistment or forced drait; the age at which the soldier shall be received, and the period for which he shall be taken; the compensation he shall be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offenses, and prescribe their punishment. No interference with the execution of this power of the National Government of its armies by any state officials could be permitted without greatly impairing the efficiency, if it did not utterly destroy, this branch of the public service. Probably in every county and city in the several States there are one or more officers authorized by law to issue writs of habeas corpus, on behalf of persons alleged to be illegally restrained of their liberty; and if soldiers could be taken from the army of the United States and the validity of their enlistment inquired into by any one of these officers, such proceeding could be taken by all of them and no movement could be made by the national troops without their commanders being subject to constant annoyance and embarrassment from this

The experience of the lato rebellion has shown us that, in times of great popular excitement, there may be found in every State large numbers ready and anxious to embarrass the operations of the Government and easily persuaded to believe every step, taken for the enforcement of its authority, illegal and void. Power to issue writs of habeas corpus for the discharge of soldiers in the military service in the hands of the parties thus disposed. might be used, and often would be used, to the great detriment of the public service. In many exigencies the measures of the National Government might in this way be entirely bereft of their efficacy and value. An appeal in such cases to this court, to correct the erroneous action of these officers, would afforá no adequate reniedy. Proceedings on habeas corpus are summary, and the delay incident to bringing the decision of a state officer, through the


It may

same act may, in some instances, be an offense against two governments, and that the transgressor may be held liable to punishment by both when the punishment is of such a character that it can be twice inflicted, or by either of the two governments if the punishment, from its nature, can be only once suffered. well be that the satisfaction which the transgressor makes for the violated law of the United States is no atonement for the violated law of Tennessee."

It is clear that there is here opportunity for conflict between the military and civil powers. Congress, however, has provided against these contingencies by giving the precedence in such cases to the civil courts. The 59th Article of War declares: “ When any officer or soldier is accused of a capital crime, or of any offense against the person or property of any citizen of the United States, which is punishable by the laws of the land, the command

highest tribunal of the State, to this court for review, would necessarily occupy years, and in the meantime, where the soldiers were discharged, the mischief would be accomplished. It is inanifest that the powers of the National Government could not be exercised with energy and efficiency at all times, if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty."

Chief Justice Chase, dissenting, said:

I cannot concur in the opinion just read. I have no doubt of the right of a state court to inquire into the jurisdiction of a federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry.

“I have still less doubt, if possible, that a writ of habeas corpus may issue from a state court to inquire into the validity of imprisonment or detention, without the sentence of any court whatever, by an officer of the Cnited States. The state court may err; and if it does, the error may be corrected here. The mode has been prescribed and should be followed.

" To deny the right of state courts to issue the writ, or, what amounts to the same thing, to concede the right to issue and to deny the right to adjudi. cate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases, and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed or the people who adopted the Constitution. That instrument expressly declares that the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it.'” 13 97 U. S. 509; 24 L. ed. 1118.

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