CHAPTER IV. DIFFERENT KINDS OF MILITARY TRIBUNALS. I. COURTS MARTIAL. Courts martial have been recognized or established by express laws of Congress. The Act of February 28, 1795, provided for calling out the militia and also for the organization of courts martial, designating the officers of whom they should be composed, prescribing punishments by these tribunals for persons who should fail (in the instances specified in Sect. 5) to obey the orders of the President. These courts derived their authority, not from any State law, but only from the statutes of the United States.** It is, however, not questioned that either of the States may pass laws providing for the trial of such delinquents by State courts martial.† The act of April 10, 1806, enacts articles of war, regulates (Article 64) the mode of organizing general courts martial; gives (Art. 65) the power of appointing them to general officers commanding an army, or colonels commanding a separate department, and institutes inferior courts martial (Art. 66); limits * Commonwealth vs. Irish, 3 S. & R. 176. S. C. 5 Hall's Law Jour. 476. Meade vs. Dep. Marsh. Va. Dist. 5 Hall L. J. 536. † Houston vs. Moore, 3 S. & R. 169. Martin vs. Mott, 12 Wh. R. 19. and requires confirmation of sentences (Arts. 65, 67), and provides (Art. 69) for the appointment of prosecuting officers usually called Judge Advocates. This act regulates the oaths of officers composing the court; the oath of the Judge Advocate, the punishment of the accused for standing mute; it provides for challenges, punishes misbehavior in court, contempts, or unbecoming conduct of persons convicted; it lays down rules relating to testimony and oaths of witnesses, and depositions, and designates (Sect. 99) such crimes or misconduct as are punishable by courts martial. The Act of Aug. 5, 1861, gives power to commanders of divisions or separate brigades to appoint general courts martial in time of war. The decisions of these tribunals are required to be reported to, and to be reviewed by, some superior officer who may confirm, modify, or set them aside. But the final judgments of courts martial are not liable to be reviewed or reversed by any judicial court of the United States.** When a court martial has once acquired jurisdiction. of the person and the subject-matter, that jurisdiction is exclusive of civil courts for that offence. But the same transaction may constitute an offence against municipal as well as military law, and, in such cases, the offender is liable to punishment by both. II. MILITARY COURTS OF INQUIRY. The Act of April 10, 1806, provides the manner of constituting such courts, their powers and proceedings. It recognizes the right of organizing them by the gen * Dynes vs. Hoover, 20 How. (Appendix, 84). erals or commanding officers; power is conferred upon these courts to summon, to compel attendance, and to examine witnesses; the right of the accused to crossexamine witnesses is secured; and the mode of authenticating proceedings is prescribed. But courts of inquiry being liable to abuse, are prohibited in all cases, except when demanded by the accused, or ordered by the President of the United States. The Act of March 3, 1863, Sect. 25, gives power to every Judge Advocate of a court of inquiry to issue process to compel the attendance of witnesses, like that which State, Territorial, or District Courts issue in places where said court of inquiry is held. These and other statutes show that this class of military courts is fully recognized by the laws of the United States. III. MILITARY COMMISSIONS, INSTITUTED BY THE COMMANDER-INCHIEF, OR UNDER STATUTES. Military commissions were first made familiar to the people of this country by General Orders No. 287, issued by General Scott at the head-quarters of the army, National Palace of Mexico, Sept. 17, 1847. During the occupation of Mexico by our army many crimes were committed by hostile individuals against soldiers, and by soldiers against the Mexicans, not punishable by courts martial as organized under the Articles of War; and, as General Scott wrote in his order, "A supplemental code is absolutely needed. That unwritten code is martial law, as an addition to the written military code prescribed by Congress in the Rules and Articles of War, and which unwritten code all armies in hostile countries are forced to adopt, not only for their own safety, but for the protection of the unoffending inhabi tants and their property about the theatres of military operations, against injuries on the part of the army, contrary to the laws of war. . . . For this purpose it is ordered that all offenders in the matters aforesaid shall be promptly seized, confined, and reported for trial before military commissions to be duly appointed, etc." These commissions were appointed, governed, and limited, as nearly as practicable, as prescribed for courts martial; their proceedings to be recorded, reviewed, revised, disapproved, or confirmed, and their sentences executed, all as nearly as might be as in the cases of the proceedings and sentences of courts martial, "provided that no military commission shall try any case clearly cognizable by any court martial, and provided also that no sentence of a military commission shall be put in execution against any individual belonging to this army, which may not be according to the nature and degree of the offence, as established by evidence, in conformity with known punishments in like cases in some one of the States of the United States of America." "The administration of justice, both in civil and criminal matters, through the ordinary courts of the country, was nowhere and in no degree to be interrupted by any officer or soldier, except" in certain specified cases. Martial, military, and civil or municipal law were administered in Mexico by General Scott, under such military commissions, with the exception above stated. But courts of this description were instituted under the general war power of the Commander-in-Chief,—a power which was fully conceded by the Supreme Court of the United States, - not under the authority of Congress. Congress has, however, recognized in express 1 terms "military commissions," in the act of March 5, 1863, Chap. 75; and having authorized the appointment of a Judge Advocate General, required all proceedings of such commissions to be returned to him for revision and record. This Act, Section 30, gives military commissions, equally with courts martial jurisdiction, in time of war, in case of "murder, assault and battery with intent to kill, manslaughter, mayhem, wounding by shooting or stabbing with an intent to commit murder, robbery, arson, burglary, rape, assault and battery with intent to commit rape, and larceny, when committed by persons who are in the military service of the United States, and subject to the articles of war." Spies are also, by the same Act, Section 38, punishable with death by sentence of a military commission. The several statutes above cited show that Congress, in pursuance of its powers under the Constitution, has recognized and established courts martial, courts of inquiry, and military commissions. Courts of the same denomination, but exercising a much broader jurisdiction of persons and subjects, have been organized and established by the President of the United States, under the war powers delegated to him by the Constitution, as Commander-in-Chief of the army and navy; and the binding authority of such courts has been admitted and solemnly asserted by the Supreme Court of the United States. Tribunals instituted by the war power of the President are those through which it is most usual to apply the laws of war in enemy's country, while hostilities are in progress, and for a certain length of time after a declaration of peace. All these tribunals constitute usual and necessary parts of the machinery of warfare, and are the essential instruments of that military government by which alone the permanency of conquest can be secured. |