cessor in command) who can relieve or detail a member or a judgeadvocate. XXVIII, 198, October, 1868.

1009. Strictly, communications from the convening authority to the court as such (and vice versa) should be made to (and by) the president as its organ, unless in the latter case the court directs the judgeadvocate to represent it; communications relating to the conduct of the prosecution should be made to (and by) the judge-advocate. XXIX, 336, October, 1869.

1010. There is no law prohibiting a court martial of the United States from sitting on Sunday, and the fact that a sentence of such a court is adjudged on that day can affect in no manner its validity in law. XXXIX, 321, 627, November, 1877, and August, 1878; Card 2955, February, 1897.

1

1011. The polling of a court martial, in the manner of a jury or otherwise, is a proceeding wholly unknown to military law. So, where an officer, acting as the counsel of a soldier on trial by court martial, demanded, on the court ruling adversely upon the admission of a special plea, that it be polled,-held that his action was wholly irregular as well as disrespectful to the court. XXXIV, 454, September, 1873. 1012. A court martial is authorized, in its discretion, to sit with doors closed to the public. Except, however, when temporarily closed for deliberation, courts martial in this country are almost invariably open to the public during a trial. XXIX, 34, June, 1869. But in a particular case where the offences charged were of a scandalous nature, it was recommended that the court be directed to sit with doors closed to the public. Card 1637, August, 1895.

1013. A court martial is authorized to exclude from its session any person who, it has good reason to believe, will endeavor to intimidate or interrupt the witnesses, or otherwise conduct himself in a disorderly manner. XXIX, 237, August, 1869.

1014. Where, after the accused has pleaded guilty, or after he has pleaded not guilty and the evidence for the prosecution has been presented, he effects an escape from military custody and disappears, he may properly be held to have waived his right of defence, and the court is authorized to proceed with the trial to a finding and, in the event of conviction, a sentence. XI, 260, 295, December, 1864; XXI, 169, January, 1866. Where, in such a case, the accused leaves counsel, the court may, in its discretion, allow such counsel to introduce evidence and present an argument. XIX, 487, March, 1866.

1015. The remarking by the court, in connection with the finding 1See G. C. M. O. 37, War Dept., 1873.

2 See Fight . The State, 7 Ohio, 180; McCorkle . The State, 14 Ind., p. 39; State v. Wamire, 16 Ind., 357. See also Court-Martial Manual (1901), par. 7, p. 15.

or sentence, unfavorably upon an officer or soldier (other than the accused) whose conduct is exhibited by the testimony, or upon an act or practice deemed proper to be noted in the interests of military discipline, though now comparatively unusual, is sanctioned by the authorities as permissible and regular in a proper case. XXVIII, 626, May, 1869; XXIX, 216, August, 1869.

1016. A court martial may, in connection with its judgment, properly animadvert upon a witness, not only as testifying falsely but as giving evasive and disingenuous testimony; but the power to thus animadvert upon witnesses should be exercised with caution. 42, 156, July, 1890.

1017. To detail as a military commission the same officers as those already constituting a court martial or vice versa, without dissolving the court first convened, though a proceeding for which there are precedents both in the Mexican war and the war of the rebellion, is one which should not be resorted to where, without material embarrassment to the service, it can be avoided. And this view is applicable, though with less force, to the case of a single officer proposed to be detailed upon two distinct military courts at the same time: such a detail should not be made unless, on account of the scarcity of officers available for such duty, it cannot well be avoided. VII, 134, February, 1864; XIX, 495, March, 1866.

1018. A court-martial has only statutory powers. Its judicial authority being derived wholly from statute (mostly the Articles of War), it can exercise no common law functions, such, for example, as the general power to punish for contempt. XLIX, 306, August, 1885. Its origin and authority being statutory, the statute law investing it with its powers must be closely followed. No presumption can be made in favor of its jurisdiction. LV, 486, March, 1888.

1019. Courts-martial being no part of the Judiciary of the United States, but simply instrumentalities of the Executive power, the provisions of Art. VI of the Amendments to the Constitution, according, in criminal prosecutions, the right of trial by jury and to be confronted with the witnesses, do not apply to their procedure which is governed wholly by statute and military usage. Held therefore that the use of depositions under the provisions of the 91st Article of war was not open to objection on constitutional grounds. 52, 204, February, 1892; 55, 493, October, 1892.

1020. The principle of the Vth Amendment to the Constitution, but

See Simmons §§ 699-707; Kennedy, 196-7; De Hart, 182-3; O'Brien, 268. In Jekyll r. Moore, 2 Bos. & Pul. 341, the expression of opinion by a court-martial, in acquitting an accused, that the prosecution had been actuated by malice, was held not to constitute a libel.

16906-01-19

not the amendment itself, applies to courts martial trials as a part of our common law military. As Sec. 860, Rev. Sts., does not apply to courts-martial, it does not set aside the general principle which with ́courts-martial takes the place of the constitutional provision, but whether it applies or not, an accused on trial before a court-martial cannot, when testifying as a witness in his own behalf, be compelled by it to criminate himself as to the matter at issue. Card 1495, July,

1895.

1021. A court martial convened by the Secretary of War, held legally constituted; such act of the Secretary being administrative and in law the act of the President whom he represents.' The order here is not a judicial but an executive act, and, like any other executive order, is legal if made through the head of the executive department to the province of which it pertains. LVI, 465, August, 1888; 64, 169, March, 1894.

1022. The officers of the branches of the service specified in par. 190, A. R. (do. of 1895; 208 of 1901), are subject to be detailed upon court martial duty only by orders emanating from the War Department. An officer of the Subsistence Department, assigned to duty at a general "dépot of supply," was ordered to "report, on his arrival, by letter to the department commander." Held that this was not an order to report for duty and did not except him from the application of the regulation or place him, for court martial service or otherwise, under the command of such commander, but enjoined merely a formal announcement of his arrival and entering upon his duties properly called for by considerations of courtesy and deference towards his military superior. 48, 255, July, 1891.

1023. A court martial cannot be availed of for the collection of the private debts of officers: it can take no notice of their financial obligations except as evidence of fraud or dishonor when admissible in proof of an offence under the Articles of War. 35, 463, October, 1889.

COURT MARTIAL JURISDICTION.

1024. Courts martial (though, within their scope and province, authoritative and independent tribunals-see $ 992, ante) are bodies of exceptional and restricted powers and jurisdiction; their cognizance being confined to the distinctive classes of offences recognized by the military code. Their jurisdiction is criminal, their function being to

2

1See § 2294, post.

Er parte Watkins, 3 Pet., 193, 209; Barrett v. Crane, 16 Verm., 246; Brooks r. Adams, 11 Pick., 440; Brooks r. Davis, 17 id., 148; Brooks e. Daniels, 22 id., 498; Washburn r. Phillips, 2 Met., 296; Smith e. Shaw, 12 Johns., 257; Mills 7. Martin, 19 id., 7; In matter of Wright, 34 How. Pr., 221; Duffield . Smith, 3 Sergt. & Rawle, 590; Bell r. Tooley, 12 Iredell, 605; State v. Stevens, 2 McCord, 32; Miller v. Seare, 2 W.

award (in proper cases) punishment: they have no authority to adjudge damages for personal injuries or private wrongs. XXVII, 454, January, 1869. They have no power to rescind a contract or to pass upon other civil rights. They are called into existence solely for the purpose of awarding punishment for military offences. Card 3608, November, 1897.

1025. While it will in general be more for the interest and convenience of the service to bring an accused officer or soldier to trial near the locality of his offence, he may with equal legality be tried by a court convened in any other part of the United States. XI, 351, December, 1864.

1026. In order to become amenable to the military jurisdiction, an officer or soldier must have been legally and fully admitted into the military service of the United States. Thus held that an officer of State volunteers appointed by a governor of a State, but not yet mustered into the United States service, was not amenable to the jurisdiction of a court martial of the United States for an offence committed while engaged in recruiting service under the authority of the gov ernor. XII, 475, July, 1865.

1027. An officer or soldier (except as otherwise provided in the 60th Article) ceases to be amenable to the military jurisdiction, for offences committed while in the military service, after he has been separated therefrom by resignation, dismissal, being dropped for desertion, muster out, discharge, &c., and has thus become a civilian.3 The old English precedent of Sackville's case (which appears indeed to stand alone even in England) has not been followed in this country or recognized in our law. I, 395, November, 1862; II, 49, March, 1863; XII, 476, July, 1865; XIII, 108, December, 1864; XIX, 64, 71, October, 1865; XXI, 37, November, 1865; XXXI, 34, 48, November, 1870; 571, August, 1871; XXXIII, 354, September, 1872; XXXIV, 422. August, 1873; XXXV, 649, November, 1874; XLII, 313, June, 1879.

Black., 1141; 6 Opins. At. Gen., 425. "A court martial is a court of limited and special jurisdiction. It is called into existence by force of express statute law, for a special purpose, and to perform a particular duty; and when the object of its creation is accomplished, it ceases to exist. * ** If, in its proceedings or sentence, it transcends the limit of its jurisdiction, the members of the court, and the officer who executes its sentence, are trespassers, and as such are answerable to the party injured, in damages, in the courts." 3 Greenl. Ev., § 470. See also MeNaghten, pp. 175, 176. 1See 2 Greenl. Ev., §§ 471, 476; United States r. Clark, 6 Otto, 40; Warden v. Bailey, 4 Taunt., 78.

That the jurisdiction of courts-martial is non-territorial, see § 1041, post.

See this principle repeated and illustrated in G. C. M. O. 4, 16, War Dept., 1871; G. O. 90, Dept. of Pennsylvania, 1865; do. 43, Middle Dept., 1865; do. 22, Dept. of the Missouri, 1866.

Note the counter dictum of Lord Mansfield, in Parker . Clive, 4 Burrow, 2419 (dated in 1779), that officers of the army, "after resigning their commissions, cease to be objects of military jurisdiction."

A discharge of a soldier, when subject to trial and punishment for a military offence, is a formal waiver and abandonment by the United States of jurisdiction over him. XXXIV, 406, August, 1873. Nor does a soldier, after having been dishonorably discharged by sentence, remain liable to the military jurisdiction, for desertion or any other military offence committed before discharge, by reason of being still held in military custody as a prisoner in confinement under the same sentence; for he is then held not as a soldier but as a civilian convict. XXXI, 34, November, 1870: XXXII, 190, December, 1871; XXXIII, 354, September, 1872; XLI, 228, May, 1878; Card 7614, January, 1900.

Nor can a person, who, by reason of acceptance of resignation, dismissal, discharge, &c., has become wholly detached from the military service, be made liable to trial by court martial, for offences committed while in the service, on the ground that such offences were not discovered till after he had left the army. XXXVII, 374, March, 1876. The returning by a dismissed, &c., officer to the service under a new commission does not revive a jurisdiction, for offences committed while he was in the service, which had lapsed upon his being separated from it.' V, 314, November, 1863; XXXV, 649, November, 1874.

Except as to the offences covered by the 60th Article of War, amenability to military jurisdiction ceases on dismissal or other severance from the military service, the United States being deemed to have waived the right of prosecution; nor is such amenability for offences committed during a period of service which has been legally terminated, revived by a subsequent re-entry into service. L. 634, August, 1886.

1028. An honorable discharge releases from and marks the termination of the particular contract and term of enlistment to which it relates only; and does not therefore relieve the soldier from the consequences of a desertion committed during a prior enlistment. 49, 442, October, 1891; 53, 179, April, 1892; 59, 86, April, 1893. Similarly held with respect to a discharge without honor. Card 2115, March, 1896. These discharges release the soldier from amenability for all offences charged against him within the particular term to which they relate, including that of desertion, except as provided in the 60th Article of War. Card 2041, May, 1896. But a dishonorable discharge (¿. e. by sentence) does not relate to any particular contract or term of enlistment; it is a discharge from the military service as a

'It is to be understood that the general rule of the nonamenability to military trial of officers and soldiers, after discharge, dismissal, &c., for offences committed prior thereto, is subject to a specific statutory exception, viz. that provided for in the concluding provision of the 60th Article. As to the question of the constitutionality of this provision, see § 117, ante, and note; also note to § 1031, post.