punishment a complete expulsion from the army-and covers all unexpired enlistments. A soldier thus dishonorably discharged cannot be made amenable for a desertion or other military offence committed under a prior enlistment, except as provided in the 60th Article of War. Nor would a subsequent enlistment after such dishonorable discharge operate to revive the amenability of the soldier for such offences. 53, 179, supra; 55, 165, August, 1892; 59, 55, April, 1893; Card 7614, January, 1900.

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1029. A soldier, however, provided he has not been in fact discharged, may be brought to trial by court martial after the term of service for which he enlisted has expired, provided, before such expiration, proceedings with a view to trial have been duly commenced against him by arrest or service of formal charges. By such arrest or service the military jurisdiction attaches, and, once attached, trial by court martial, and punishment, upon conviction, may legally ensue, though the soldier's term of enlistment may in fact expire before the trial be entered upon. In the leading case on this point of a seaman in the navy (In re Walker, 3 American Jurist, 281), the Supreme Court of Massachusetts held (January 25, 1830) as follows: In this case the petitioner was arrested, or put in confinement, and charges were preferred against him to the Secretary of the Navy before the expiration of the time of his enlistment; and this was clearly a sufficient commencement of the prosecution to authorize a court martial to proceed to trial and sentence, notwithstanding the time of service had expired before the court martial had been convened." So held, in a case of a soldier of the regular army, arrested on the day before the expiration of his term of enlistment, with a view to a trial for a military offence by court martial, that the jurisdiction of the court had duly attached, and that his trial might legally be proceeded with. XXVI, 512, April, 1868. And similarly held in repeated cases of soldiers and officers of regular and volunteer regiments. V, 313, November, 1863; VII, 24. July, 1864; XII, 352, February, 1865; XIV, 229, March, 1865; XVI, 562, September, 1865; XXVII, 599, April, 1869; Card 2011, January, 1896.

1030. Persons in the military service are amenable to the jurisdiction of courts martial for military offences committed by them while in arrest or confinement awaiting trial by court martial. 33, 335, June, 1889.

1031. By the VIth Amendment of the Constitution, civilians are guaranteed the right of trial by jury in all criminal prosecutions."

See G. C. M. O. 16, War Dept., 1871.

And see Judge Story's charge to the jury in United States . Travers, 2 Wheeler Cr. C., 490, 509; In the matter of Dew, 25 L. R. 540; In re Bird, 2 Sawyer, 33.

Thus in time of peace-a court martial cannot assume jurisdiction of an offence committed by a civilian without a violation of the Constitution. It is only under the exceptional circumstances of a time of war that civilians may, in certain situations, become amenable to trial by court martial. XIX, 475, March, 1866; XXXVIII, 641, June, 1867.

1032. Any statute by which any class of civilians is attempted to be made amenable to trial by court martial for offences committed while civilians and in time of peace, is necessarily unconstitutional. XLII, 250, April, 1879.

1033. Sec. 1361, Rev. Sts., applies only to prisoners in confinement at the military prison at Leavenworth. So, in a case of a prisoner, who, while confined, after discharge under sentence, at the prison at Alcatraz Island, was brought to trial by court martial for an escape and sentenced, on conviction, to an additional term of imprisonment, held that the second trial-the prisoner being then a civilian-was wholly without legal authority and the sentence of no effect. XXXI. 47, November, 1870; XXXVII, 541, May, 1876.

1034. So, where a prisoner confined at the Leavenworth prison after a discharge from the service, was brought to trial by court martial for an offence (desertion) committed not during his confinement but more than a year and a half before he was received at the prison under his original sentence, held that Sec. 1361, Rev. Sts., furnished no authority for such trial, and that the court was therefore without jurisdiction and the sentence void. XLI, 228, May, 1878.

1035. To give a court martial jurisdiction of the person of an officer or soldier charged with a military offence, it is not necessary that he shall have been subjected to any particular form of arrest, or that he shall have been arrested at all, or even ordered to attend the court. Here, as before a civil tribunal, his voluntary appearance and submission for trial is sufficient to give the court jurisdiction of his person. XXVIII, 27, July, 1868.

1036. It is no objection to the assuming by a court martial of jurisdiction of a military offence committed by an officer or soldier, that he may be amenable to trial, or may actually have been tried and con

See, in support of this view, Ex parte Milligan, 4 Wallace, 121-123; Jones r. Seward, 40 Barb., 563; In matter of Martin, 45 id., 145; Smith r. Shaw, 12 Johns., 257, 265; In matter of Stacy, 10 id., 332; Mills r. Martin, 19 id., 22; Johnson r. Jones, 44 Ills., 142, 155; Griffin . Wilcox, 21 Ind., 386; In re Kemp, 16 Wis., 382; Ex parte McRoberts, 16 Iowa, 605; Antrim's case, 5 Philad., 288; 3 Õpins At. Gen., 690; 13 id., 63.

A civilian brought to trial before a court-martial, cannot, by a plea of guilty or other form of legal assent, confer jurisdiction upon the court where no jurisdiction exists in law. Compare People v. Campbell, 4 Parker, 386; Shoemaker r. Nesbit, 2 Rawle, 201; Moore . Houston, 3 Sergt. & Rawle, 190; Duffield v. Smith, id., 599.

This view is approved, and the last sentence of the prisoner declared inoperative by the Secretary of War, in G. C. M. O. 4, War Dept.. 1871. But see now sec. 5 of the Summary Court Act approved June 18, 1898.

victed, by a criminal court of the State, &c., for a criminal offence involved in his act. Thus a soldier may be tried for a violation of Art. 21, in striking or doing other violence to a superior officer, after having been convicted by a civil tribunal for the criminal assault and battery. So, an officer or soldier may be brought to trial under a charge of "Conduct to the prejudice of good order and military discipline" for the military offence (if any) involved-see SIXTY-SECOND ARTICLE-in a homicide or a larceny, of which, as a civil offence, he has been acquitted or convicted by a criminal court.' And the reverse is also law, viz., that the civil court may legally take cognizance of the criminal offence involved, without regard to the fact that the party has been subjected to a trial and conviction by court-martial for his breach of military law or discipline. In such instances the act committed is an offence against the two jurisdictions and may legally subject the offender to be tried and punished under both. V, 140, October, 1863; XLI. 187, April, 1878; XLIII, 210, February, 1880; XLIX, 657, January, 1886; 65, 268-9, June, 1894; Card 6862, August, 1899.

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1037. It cannot affect the authority of a court martial to take cognizance of the military offence involved in an injury committed by a soldier against an officer, that, before the trial, the latter has resigned or been otherwise separated from the army. XXXII, 623, May, 1872. 1038. In March, 1870, the president of the National Home for Disabled Volunteer Soldiers" (a civilian) convened, at the home, a court martial composed of eight inmates of the same (all civilians, but designated by their former rank in the volunteer service, as “surgeon,” “captain," "sergeant," and "private") for the trial, on charges of desertion and other offences, of another (civilian) inmate. The court tried the accused, convicted him, and sentenced him to a term of imprisonment. The proceedings and sentence were approved 1As to the measure of the punishment, upon the conviction of the military offence, see § 2318, post.

That an officer may be amenable to the civil and the military jurisdiction at the same time for the same act, see cases of Ast. Surgeon Steiner and Captain Howe, 6 Opins. At. Gen., 413, 506. In the former case it is held that the "conviction or acquittal of an officer by the civil authorities, of the offence against the general law, does not discharge him from responsibility for the military offence involved in the same facts." In the latter case it is observed: "An officer may be tried by court martial for the military relation of an act, after having been tried by the civil authorities for the civil relations of the same act.' And see 30pins. At. Gen., 749, and compare Moore r. Illinois, 14 Howard, 19-20. In a case published in G. C. M. O. 20, Hdqrs. of Army, 1869, an officer was charged with and convicted of "Conduct to the prejudice of good order and military discipline," for the killing of a soldier, for which, as "manslaughter," he had previously been acquitted by a civil court. And see cases

in G. O. 78, Dept. of the East, 1869; G. C. M. O. 50, Dept. of the Missouri, 1871. See Court-Martial Manual (1901), par. 7, p. 17.

In cases of double amenability, while-in view of the subordination of the military to the civil power-the civil jurisdiction is entitled to the preference, yet, in general, that jurisdiction which is first fully attached is ordinarily properly allowed to have the precedence in its exercise over the other. See Er parte McRoberts, 16 Iowa, 606; 6 Opins. At. Gen., 423; G. O. 25, Hdqrs. of Army, 1840.

by the convening authority, who thereupon applied to the Secretary of War for an order designating a military prison for the confinement of the party in execution of his sentence. Held (upon a reference of the case for opinion, by the Secretary of War), that the proceedings were unprecedented, unauthorized ab initio, and void as a whole and in detail; that the provision in the act establishing the home, that the inmates should be subject to the rules and articles of war in the same manner as if they were in the army," even if it could be regarded as constitutional, conveyed no authority for such a court as that constituted and composed in this case; and that the sentence adjudged by the same could not legally be executed in the manner proposed or otherwise. XXX, 286, April, 1870.

1039. The discharge of a soldier not taking effect until notice thereof,3 actual or constructive, held that a soldier who committed a military offence on the day on which he was to be dishonorably discharged under sentence but before the discharge was delivered to him (or to the officer in charge of the prison at which he was also to be confined under the same sentence) was amenable to the military jurisdiction for the trial and punishment of such offence as being still in the military service. 27, 383, October, 1888.

1040. Held that an officer could not, by procuring himself to be, or consenting to being, placed under a "conservator" as a habitual drunkard, in the form prescribed by the local law, withdraw himself from the military jurisdiction; but that he remained amenable to trial and punishment for offences committed prior to such proceeding and within the period of limitation. So recommended in the particular case that the officer be brought to trial for certain offences (duplication of pay accounts) committed prior to such proceeding. 63, 358, Fbruary, 1894.

In a case

1041. The jurisdiction of courts martial is non-territorial. of an officer who exhibited himself in a drunken condition at a public ball in Mexico, held that his offence was cognizable by a court martial of the United States, subsequently convened in Texas by the department commander. This for the reason that the military jurisdiction does not recognize territoriality as an essential element of military offences but extends to the same wherever committed; a principle which is amply confirmed by the comprehensive provision of the 64th Article of War. 48, 52, January, 1891; 64, 64, February, 1894.

It is inaccurately stated in the report of the case of Renner r. Bennett, 21 Ohio St. 434 (December, 1871), that no inmate of the National Home had ever been subjected to a trial by court martial. The instance referred to in the text, however, is the only one known of such a trial; and in this case the proceedings were on the report of the Judge-Advocate General, declared to be void ab initio and wholly inoperative by the Secretary of War.

* See & 1153, post.

See G. C. M. O. 11, Dept. Texas, 1894.

D.

DEED.

1042. An act of Congress authorized the Secretary of War simply to "cede" to a city certain piers. Id that the term "cede" called for a simple absolute grant, and that a deed of bargain and sale for a valuable consideration was not the correct form of transfer; further, that as the authority was in terms to cede, without more, the Secretary would not be empowered to attach to the grant any covenants or conditions as to the use or care of the piers or otherwise. Should the city hereafter permit its piers to become an obstruction to navigation, there is a remedy provided by law. LIII, 381, April, 1887. 1043. Certain lands were granted to the United States for canal purposes, and it was expressly stipulated in the deed that the same should be "occupied, used and employed in and for no other use or object whatever." A revocable license was granted by the Secretary of War to a bridge company to enter upon and lay a temporary railway over a part of such lands. Held that this was a mere permission for a transient use not inconsistent with the grant; and that, whether the stipulation in the deed was construed to be a mere covenant or a condition subsequent, there was here no such diversion of the premises from the purposes for which they were granted as to work a forfeiture.' LV, 37, September, 1886.

1044. No formal acceptance of a deed, apart from the delivery, is necessary, and in the practice of the War Department a formal acceptance is not usually given. An acceptance may be presumed from a variety of circumstances, such as placing the deed on record, possession of the deed, the conveyance being beneficial to the grantee, the exercising of ownership over the property conveyed, &c. Thus where the Secretary of War secured in 1871, under sec. 18 of the act of July 17, 1862, a deed to a certain piece of land for use as a cemetery, which deed was duly delivered, placed on record, and forwarded to the War Department, and the land was so used until 1880, at which time the Secretary of War declined to accept the said deed of 1871, it was held that the deed had long since been legally accepted, vesting the title in the United States, that the subsequent refusal to accept it, did not divest the title, and that, in the absence of authority from Congress,

See 2 Washburn on Real Property, 6; McKelway r. Seymour, 29 N. J. Law, 231; Chapin . School Dist., 35 N. H., 452; Thornton r. Trammiel, 39 Ga., 202.