be convened for the trial of Indians, for violations of the laws of war, on account of thefts, robberies, and murders committed by them upon incursions made into the State of Texas, where said Indians, (unlike the Modocs-see § 5 supra,) were mere raiders, with whose tribe, as such, the United States was not engaged in war, and whose crimes, therefore, were not committed flagrante bello.1 XXXVI, 221. 8. Where the State was not under martial law or military government, the fact that the offence was committed by a prisoner of war at a prison camp (within the State) for the confinement of prisoners of war, and guarded by federal troops, was held insufficient to give a military commission jurisdiction of the case. XV,358. But held that the mere fact of the appointing by the Executive of a "provisional governor" for an insurrectionary State, in June, 1865, prior to the date of the proclamation, (of April 2, 1866,) declaring the war at an end in that State, and while the territory of the same still remained in military occupation, did not operate to oust military commissions of jurisdiction of criminal offences committed within the State. XVI, 415.

9. It is a further restriction upon the jurisdiction of the Military Commission that, except where it may be invested by statute with a jurisdiction concurrent with that of courts martial, (as by secs. 30 and 38 of the Act of March 3, 1863,) its authority cannot be extended to the trial of offences which are, specifically or in general terms, made cognizable and punishable by courts-martial, by the articles of war or other statute. In repeated instances during the late war the proceedings of military commissions, in cases in which these tribunals had improperly assumed jurisdiction of offences legally triable by courts martial only, were recommended by

As to the nature of the hostility which may properly bring Indians" within the description of public enemies," compare XIII Opins. of Attys. Gen. 471. That a detached band of marauding Indians was not an "enemy " in the sense of the Act of Mch. 3, 1849, (Sec. 3483, Rev. Sts.,) providing for the making good of damage sustained by the capture or destruction of certain property "by an enemy"-was held by the Supreme Court in Stuart v. United States, 18 Wallace, 84.

"See Belding v. State, 25 Ark. 315. And compare XIII Opins. of Attys. Gen. 65-6; Coleman v. Tennessee, 7 Otto,

the Judge Advocate General to be disapproved. I, 384, 468, 482; VII, 440, 486; IX, 236; XV, 373; XVI, 73; XIX, 63.

10. As to the special statutory jurisdiction with which the Military Commission has, in certain cases, been invested, the Acts of Congress by which this has been conferred and defined have already been cited. Of these, the provision of the act of March 3, 1863, by which a jurisdiction, concurrent with that of the court martial, is given to this tribunal in cases of spies, is the only one now in force, being embodied in Sec. 1343, Rev. Sts.

Under the latest of these Acts, the "Reconstruction" Act of March 3, 1867, in sec. 3 of which the commanders of the military districts constituted thereby were empowered, in their discretion, "to organize military commissions," in lieu of the "local civil tribunals," for the trial and punishment of "all disturbers of the public peace and criminals," it was held by the Judge Advocate General as follows:

That the military commissions convened under the Act would properly be governed, as to their form of procedure, by the rules and forms governing military commissions under the laws of war, (see MILITARY COMMISSION, I, § 2,) while, as to their jurisdiction and power of punishment, they would in general properly be regulated by the local statutes governing the courts of which they were substitutes. XXIX, 406:

That, being substitutes for the State criminal courts, they were authorized to take cognizance of offences committed, (but not brought to trial,) before the date of the Act, equally as of those committed after such date. XXV, 424; XXVI, 234:

That cases of soldiers offending against the criminal law, whose offences were not within the jurisdiction of a court martial, might legally be brought to trial before military commissions convened under the Act. XXVI, 487, 543: That commissions ordered under this Act, being in lieu of the State tribunals, could not assume to take cognizance of a case within the jurisdiction of a court of the United States in operation in the district. XXVIII, 612:

That sentences duly adjudged by commissions convened

'The constitutionality of this Act and the legality of the institution under it of military commissions are affirmed by Atty. Gen. Hoar in XIII Opins. 59-67.

under this statute, and which had been duly and finally approved by the competent authority, (see sec. 4 of the statute,) might legally be executed prior to the passage of the Act admitting to representation in Congress the State in which the offence was committed; but that such sentences, not carried into effect, (or of which the execution had not been entered upon,) at that date, could not thereafter legally be enforced.' And held generally, that all proceedings of military commissions which remained pending or incomplete at such date became thereupon terminated. XXVII, 89, 90, 93; XXVIII, 51; XXIX, 620; XXX, 181.

11. The jurisdiction of a military commission convened under the law of war may be exercised up to the date of a peace agreed upon between the hostile parties or the declaration by the competent authority of the termination of the war status.

XX, 484.

12. A military commission, convened for the trial of offences under the law of war, has no jurisdiction of civil suits or proceedings, either based upon contract or brought to recover damages on account of private transactions or personal injuries. III, 190; V, 86; IX, 205; XI, 657. [As to the civil jurisdiction of special courts and commissions instituted during the late war, see LAW OF WAR § 12, note.]

MILITARY COMMISSION, III-SENTENCE.

Except in a case of a spy, whose sentence must be death, (Sec. 1343, Rev. Sts.,) the discretion of the Military Commission in the imposition of sentence is not in terms restricted or defined by the existing law. VII, 62. The sentence, however, should award a criminal punishment: a judgment of debt or damages would be irregular and properly disapproved. III, 190. So a military commission cannot properly impose a

1Compare United States v. Tynen, 11 Wallace, 88, where it is held that "There can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence." And to a similar effect see United States v. Finlay, 1 Ab. U. S. R. 364.

'See XIV Opins. of Attys. Gen. 250, where this principle is applied to an Indian war. See also V Opins. 58.

See State r. Stillman, 7 Cold. 341; G. O. 1, Dept. of the Missouri, 1862.

punishment reserved by law for courts martial-as dismissal or suspension in a case of an officer, or dishonorable discharge in a case of an enlisted man. X, 356. Where a military commission is acting practically as a substitute for a State criminal court, it should, in general, in determining the proper measure of punishment to be inflicted, take into consideration the State statute law, if any, prescribing the penalty or penalties for the offence.' XXIX, 406.

MILITARY GOVERNMENT.

SEE LAW OF WAR § 1.

MARTIAL LAW § 1.

MILITARY COMMISSION, II § 2, and note 2.

MILITARY OFFENCE.

Military offences proper are simply violations of the laws, orders, or rules of discipline governing the military state. Such offences are neither "felonies" nor "misdemeanors” in the legal sense of those terms, nor can an officer or soldier, convicted of an offence of this class, properly be subjected to any of the consequences attaching to a felony. Thus held that a soldier convicted by a court martial, assembled within the State of Kansas, of the offence of swearing falsely as a witness before a previous military court, could not be subjected to any disability attaching to a conviction of perjury as a felony by the laws of that State; his offence, as found, not being a civil crime but simply "conduct to the prejudice

1Except where the death sentence was pronounced, the punishment adjudged by military commissions during the late war was, in the great majority of cases, an imprisonment for a certain term or 'till the end of the war.' Fines were not rarely imposed, and a sending beyond the lines of the U. S. forces was not infrequent. A confiscation of property was also sometimes adjudged. In many instances, in lieu of any punishment, it was directed or recommended by the commission that the accused be required to take an oath of allegiance, or give a parole, and in some cases also to give a bond for future loyal behavior.

of good order and military discipline." VIII, 332; XXXVIII, 219. [See PERJURY § 1.]

MILITARY PRISON.

1. The proceeds of sales of articles manufactured by the prisoners at the Military Prison are clearly public funds, and, in the absence of any statutory provision in regard to their disposition,-Sec. 1351, Rev. Sts. only requiring that they shall be "accounted for" as received by the commandant,—can not legally be expended in repairing or improving the prison buildings, or otherwise, without authority of Congress. XLII, 24.

2. Held that, under the general authority vested in the Secretary of War by Sec. 1351, Rev. Sts., to direct as to the disposition of the articles manufactured by the convicts at the Military Prison at Leavenworth, and in the absence of anything in Sec. 3716, Rev. Sts., or elsewhere in the statute law relating to contracts, precluding such action,-the Secretary was empowered to order that the shoes made by the prisoners should be turned over to the quartermaster department for issue to the army. XLI, 427.

3. Held that the provisions of Secs. 1345 and 1346, in respect to the organizing, &c. by the Secretary of War, of the Board of Government of the Military Prison, did not simply vest a discretion in the Secretary to do or not to do, in whole or in part, as therein prescribed, but, imposing as they did a public duty, should be construed as mandatory upon him, (see STATUTES-CONSTRUCTION OF § 3,) and thus as properly requiring him to maintain such Board with the members, both military and civil, as specified in the former section, and with it to visit the prison as directed in Sec. 1346. XLI, 675.

1

SEE ARMY REGULATIONS § 2.

COURT MARTIAL, II 8, 9, and notes.
IMPRISONMENT § 2, 8, 18, note.
SUBSISTENCE STORES § 2.

The term "convicted of a felony," employed in Sec. 1118, Rev. Sts., (as amended by the Act of Feb. 27, 1877,) forbidding the enlistment of persons "convicted of a felony," refers clearly to a conviction by a criminal court of the United States, or of a State or Territory, (or of the District of Columbia,) of an offence made a felony by the laws of the same, or by the common law as recognized therein.