courts of criminal jurisdiction, in so far as such duties are apposite to the procedure of military courts. It would be proper for an officer so detailed to employ all honorable means to acquit him, that is to invoke every defence which the law and facts justify, without regard to his own opinion as to the guilt or innocence of the accused. Military law does not any more than the civil assume to punish all wrong doing, but only such as can be ascertained by the methods of justice which the law and the customs of the service prescribe.1 64, 164, March, 1894; Card 609, November, 1894. 991. An application by an accused officer to be furnished, at the expense of the United States, with civil counsel to defend him on his trial by court martial, remarked upon as unprecedented and not to be entertained. Par. 1057, A. R. (968 of 1895; 1072 of 1901), relates to no such a case. 50, 277, November, 1891. No authority exists for the payment by the United States of civil counsel employed by an officer or an enlisted man to defend him on his trial by court martial. 165, May, 1889; 45, 438, February, 1891. COURT MARTIAL AUTHORITY AND FUNCTION. 32, 992. Courts martial are no part of the Judiciary of the United States, but simply instrumentalities of the Executive power. (Compare § 2038, post.) They are creatures of orders; the power to convene them, as well as the power to act upon their proceedings, being an attribute of command. (See SEVENTY-SECOND ARTICLE; ONE HUNDRED AND FOURTH ARTICLE.) But, though transient and summary, their judg ments, when rendered upon subjects within their limited jurisdiction (see COURT MARTIAL JURISDICTION), are as legal and valid as those of any other tribunals, nor are the same subject to be appealed from, set aside, or reviewed, by the courts of the United States or of any State.* V. 656, December, 1863; LV, 486-492, March, 1888. See COUNSEL, Court Martial Manual of 1901, p. 25. See Dynes r. Hoover, 20 How., 79; Ex parte Vallandigham, 1 Wall., 243; Keyes ». U. S., 109 U. S., 336; Wales r. Whitney, 114 id., 564; Smith e. Whitney, 116 id., 167; Johnson r. Sayre, 158 id., 109, 118; Fugitive Slave Law Cases, 1 Blatch., 635; In re Bogart, 2 Sawyer, 402, 409; Moore r. Houston, 3 S. & R., 197; Ex parte Dunbar, 14 Mass., 392; Brown v. Wadsworth, 15 Verm., 170; People v. Van Allen, 55 N. York, 31; Perault r. Rand., 10 Hun., 222; Moore r. Bastard, 4 Taunt., 67; 6 Opins. At. Gen., 415, 425. "No acts of military officers or tribunals, within the scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of common law." Tyler v. Pomeroy, 8 Allen, 484. Where a court martial has jurisdiction, "its proceedings cannot be collaterally impeached for any mere error or irregularity committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give conensiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances." Ex parte Reed, 10 Otto, 13. See Winthrop's Mil. L. & P., 55–57 and authorities cited; 3 Greenleaf Ev., 470; Clode Mil. F., 361; id., M. L., 58. In Rose ex rel. Carter v. Roberts (99 Fed. Rep., 948) the court said: "It is not the 993. A court martial should in general be left to determine its own course of procedure, except where the same is defined by law, regulation, or usage. It would be unwarranted by usage to require in orders that a court martial shall adopt a certain procedure in any case or class of cases as to a matter properly within its discretion. Thus a commander could not properly order that courts martial convened by him should take testimony in cases in which the accused pleaded guilty, though he might properly recommend their doing so. XXXIV, 138, February, 1873. 994. Where the accused pleads guilty and the specification does not fully set forth the particulars of the offence, the court is authorized to call upon or permit the judge-advocate to introduce testimony sufficient to inform itself, as well as the reviewing officer, as to the extent of the criminality involved in the offence and the measure of punishment proper to be imposed.1 XXXIX, 206, October, 1877; Card 5093, October, 1898. 995. While a specific punishment may be recommended in orders to be adjudged by courts martial in a certain class of cases, it is not competent to order such courts to adopt a particular form of sentence in any case. The duty and discretion of courts martial in the imposition of punishments are prescribed and defined by the Articles of War. XXXI, 354, May, 1871. 996. It may be said to be a principle of military law that a court martial is to be left independent as to matters legally or properly within its own discretion. Such a court, however, may not assume authority over a subject belonging to the province of the officer by whom it has been convened. Thus, while it may decline to proceed with the trial of a case manifestly not within its jurisdiction, it cannot properly refuse so to proceed on the ground that it is not empowered adequately to punish the offender upon conviction; or that officers junior to the accused have been placed upon the detail; or that-the detail being less than thirteen-a greater number might have been put office of a writ of habeas corpus to perform the functions of a writ of error in reviewing the judgment of a court martial. Courts martial are tribunals created by Congress in pursuance of the power conferred by the Constitution, and have as plenary jurisdiction of offences committed to them by the law military as do the circuit and district courts of the United States in the exercise of their statutory powers over other offences. The question of jurisdiction may be reached by such a writ, as it may be when the judgment of any tribunal is attacked; but the range and scope of the inquiry is controlled by the same rules and limitations in either case. There must be jurisdiction to hear and determine, and to render the particular judgment and sentence imposed; but, if this exists, however erroneous the proceedings may be, they cannot be reviewed collaterally, or redressed by habeas corpus. These principles have been repeatedly declared by the authorities. In re Davison (C. C.), 21 Fed., 618; Ec parte Reed, 100 U. S., 13, 25 L. Ed.,538; In re Coy, 127 U. S., 731, 8 Sup. Ct., 1263; 32 L. Ed., 274; Ex parte Yarbrough, 110 U. S., 651, 4 Sup. Ct., 152, 28 L. Ed., 274; U. S. v. Pridgeon, 153 U. S., 59, 14 Sup. Ct., 746, 38 L. Ed., 631." 'See Court-Mar. Manual of 1901, p. 42, par. 2. upon the court without injury to the service; or that the accused has not been placed in arrest. A court declining to go on with a trial upon any such ground may be peremptorily ordered by the convening authority to proceed: if it still refuses, the preferable course will ordinarily be to dissolve it in general orders (adding, if deemed desirable, an expression of censure on account of its contumacy), and to convene, for the trial, a court composed entirely of new members. XXI, 177, January, 1866; XXV, 578, May, 1868; XXVIII, 57, August, 1868. 997. A court martial has no authority over the person of an accused except when he is before it for trial. It cannot arrest him, or by its own order cause him to be brought to the place of trial; the compelling of his attendance before the court being a duty of the convening officer or post commander.' XXII, 606, Fbruary, 1867. XXXIX, H. December, 1876. So, a court martial has, as such, no authority to arrest, or to require its judge-advocate or other officer to arrest, a witness suspected of false swearing upon a trial which has been had before it: in such a case its proper course is to report the facts to the convening authority for his action. III, 109, July, 1863. 998. Charges are regularly and properly referred to a court martial for trial by the officer who has constituted it (or his superior), and at court martial may in general properly decline to entertain charges otherwise submitted. The validity, however, of the proceedings or sentence of a court martial in any case will not be affected by the circumstance that the charges were in fact irregularly referred to it by a commander inferior to the convening officer and without having been. approved by him. XXII, 502, December, 1866; XXVI, 167, November, 1867. 999. A court martial is not authorized, in its discretion and of its own motion, to reject or strike out a charge or specification formally referred to it for trial by competent authority, nor to direct or permit the judge-advocate to drop or withdraw such a charge or specification, or enter a nolle prosequi as to the same. For such action the authority of the convening commander is requisite. But where, by a special plea or objection, an issue is made by the accused as to the sufficiency of any pleading, the court, without referring the question to the convening officer, is empowered to allow the plea or objection and quash or strike out the charge, &c. XXIX, 370, October, 1869; 20, 378, November, 1887. See note to § 1000, post. Compare G. C. M. O. 13, Dept. of the Missouri, 1877; do. 36, 79, Dept. of the Platte, 1877; do. 13, id., 1878; do. 41, id., 1880; do. 45, 48, Div. of Pacific and Dept. of Cal., 1880. This paragraph sets forth the established practice in our service. It is now incorporated in the Court-Martial Manual (1901), p. 19, sec. v. As to the authority of the court to direct an amendment of a charge or specification, see note to § 720, ante. 1000. When a court martial desires to have the benefit of the testimony of a party who has not been introduced as a witness by the prosecution or defence, it may properly call upon the judge advocate to have such party summoned, or if he is a military person-may apply to the convening authority or post commander to have him ordered before it to testify,' and it may adjourn the trial for a reasonable time to await his attendance. XXV, 578, May, 1868. 1001. In the interests of justice and for the purpose of fully informing itself of the facts, the court may, in its discretion, allow the introduction, by either side, of material testimony after the case has been formally closed. Such a proceeding, however, must be of course exceptional, and a party should not be permitted to offer testimony at this stage, unless he exhibits good reason for not having produced it at the usual and proper time. XII, 401, May, 1865; XVII, 398, October, 1865. 1002. In a case where-a plea of guilty having been interposed-the prosecution had closed and the accused had proceeded to present to the court a statement of defence, held that the court was authorized, in its discretion, to reopen the case and hear testimony relative to certain gross ill-treatment to which the accused in his statement had represented that he had been subjected, and which he claimed, had excused or extenuated his offence. XXXI, 35, November, 1870. 1003. A court martial, after having entered upon a trial which has to be suspended on account of the absence of material witnesses, or for other cause, is authorized, in its discretion, to take up a new case not likely to involve an extended investigation, and proceed with it to its termination before resuming the trial of the first case. III, 281, August, 1863; IX, 650, September, 1864; XXVI, 548, May, 1868. 1004. A court martial has no power to terminate its own existence or function. Where therefore it has adjourned "sine die" (see 'It has not been the practice in this country for the convening authority to detail an officer to attend a military court in a ministerial capacity-to summon witnesses, enforce the attendance of the accused, &c. In the special case, indeed, of the persons charged with complicity in the assassination of President Lincoln, and tried by military commission, it was ordered by the President-May 1st, 1865-as follows: "That Brevet Major General Hartranft be assigned to duty as special provost marshal general for the purposes of said trial, and attendance upon said commission, and the execution of its mandates." 2 Compare Eberhardt v. State, 47 Ga., 598; and see the trial, by court-martial, of B. G. Harris (Ex. Doc. No. 14, H. R., 39th Cong., 1st sess., p. 25), where, on the day on which the accused was to present his final argument to the court, and which was two days after the formal closing of the case, the defence was allowed to introduce new testimony on the merits. See also Court-Martial Manual (1901), p. 43. It is moreover the duty of a court martial to see that injustice is not done the accused by the admission on the trial of improper testimony prejudicing his defence, or unfairly tending to aggravate the misconduct charged. In the interests of justice, therefore, the court may exclude such testimony although its admission may not be objected to on the part of the accused. Compare State v. O'Connor, 65 Missouri, 374. $395, ante), it may, without being formally reconvened in orders, reassemble and take up and try a case referred to it by the convening authority, through its president or judge-advocate, precisely as if it had not adjourned at all. It is its duty indeed to hold itself in readiness to try all cases so referred, until formally dissolved by the convening officer or his successor in the command. XIX, 628, May, 1866; XLI, 282, June, 1878. 1005. An adjournment "sine die" by a court martial does not dissolve it, and the reviewing authority is authorized to send back to the court its record for the reconsideration of the judgment, and the court itself to reconsider and reframe the sentence, subsequently to such an adjournment and without regard to it.' LV, 208, December, 1887. 1006. A court martial is not legally dissolved till officially informed of an order, from competent authority, dissolving it. The proceedings of a court martial, had after the date of an order dissolving it but before the court has become officially advised of such order, will thus be quite regular and valid. Where an order dissolving forthwith a court martial has been duly officially received by the court and has thus taken effect, an order subsequently received revoking this order will be entirely futile. It will not revive the court, but the same, to be qualified for further action, must be formally re-convened as a new and distinct tribunal. XLIII, 160, January, 1880; 32, 29, April, 1889. 1007. Except where it sustains a challenge under Art. 88, a court martial is not authorized to dispense with the attendance of a member. XXXVII, 34, September, 1875. It cannot excuse a member to enable him to attend to other duties; for example, to act as counsel for the accused. For such purpose he must be duly relieved by the convening authority. XXI, 650, September, 1866; XXXV, 488, 490, July, 1874. Where a court martial relieved two of its members on the ground that, having been absent from a portion of the proceedings, they had not heard a portion of the testimony, held that, provided fire members had always remained and been present, the validity of the findings and sentence was not affected, and the same would properly be approved, unless it appeared that the action of the court had in some manner prejudiced the defence. 15, 48, February, 1887. 1008. Where a court martial excused its judge-advocate, and required its junior member to act as judge-advocate in his stead, held that its action was wholly unauthorized and that its proceedings were properly disapproved. It is only the convening authority (or his suc 1See Brown r. Root, Sup. Court, D. C., 1900 (44,087 Law). "See note to § 1667, post. 'See G. C. M. O. 62, War Dept., 1874. |