Little v. Barreme which was an action in trespass again t a naval officer who had seized the plaintiff's ship in obedience to an order of the President, which order was, however, based upon a misinterpretation by him of an act of Congress. In rendering his opinion, Chief Justice Marshall said:

"I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between the acts of the civil and those of military officers; and between proceedings within the body of the country and those on the high seas. The implicit obedience which military men usually pay to the orders of their superiors, and which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them and who is placed by the laws of his country in a situation which in general requires that he should obey them. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in the opinion of my brethren, which is that the instructions cannot change the nature of the transaction, or legalize an act which without them would have been a plain trespass."

§ 707. Powers of the Military Commander.

In time of war, as we shall see, the powers of the military commander, in the control of his own men, and of the citizens of the State to which he belongs, are much broader than they are in time of peace, but it is still true that they are subject to the limitations which the civil law imposes. With respect to the persons and property of the enemy, however, he is subject only to the limitations which the laws of war, as determined by international usage, supply, and for violation of these he is responsible only to the military tribunals.

72 Cr. 170; 2 L. ed. 243.

§ 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."

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.

8709. 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. Hoover, 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 United 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 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 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. 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

§ 710. Jurisdiction of Courts Martial Over Offenses Which Are also Violations of the Local Civil Law.

In Coleman v. Tennessee13 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 draft; 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 com manders being subject to constant annoyance and embarrassment from this source. The experience of the late 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 afford no adequate remedy. Proceedings on habeas corpus are summary, and the delay incident to bringing the decision of a state officer, through the