The commander of the Engineer battalion, established by the Act of July 28, 1866, is a commander of a "corps in the sense of the above article, and is authorized to convene regimental courts.1

A regimental commander cannot assemble such courts, except from officers under his immediate command. He cannot go to other posts than his own for officers of his regiment, except by express authority of the department or superior commander.

Garrison Courts. Every officer commanding a garrison, fort, or other place, where the troops consist of dif ferent corps, shall, subject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts-martial consisting of three officers to try offenses not capital.2

The presence on duty with the garrison, etc., and as a substantive part thereof, of a single representative of a corps, or a branch of the service other than that of which the bulk of the command is composed, is sufficient to fix upon the body the character of "one consisting of different corps," and to empower the commanding officer to assemble a court-martial. Thus the presence of an ordnance sergeant or hospital steward would bring the body within the meaning of this article; not so, however, the presence of a civil physician acting as surgeon, or a hospital matron, or any civil employé of the government.3

The words "or other place," used in this article, would include any place where the troops consist of "different corps;" viz., arsenals, barracks, draft rendezvous, etc.

The question was submitted to the Judge-Advocate General in 1875-whether a garrison commander could detail for garrison court-martial duty a staff officer of

Opinions J. A. G., pp. 26–27; also G. O. 5, A. G. O., Jan. 18, 1843.

superior rank to himself. In reply he stated "that the question has not been decided by this Bureau, and as it is not known to have actually arisen in the military administration, it would be premature to discuss it at present. A decided impression, however, is entertained, that a garrison commander, in the exercise of the general authority given him by the 82d Article of War, would be competent to detail for garrison court-martial duty, a medical or other staff officer stationed at the post, though of superior rank to himself.” 1

Field Officer's Court. In time of war a field officer may be detailed in every regiment to try soldiers thereof, for offenses not capital. The colonel, or commanding officer of the regiment, should detail the field officer as a court. If there be but one field officer he cannot detail himself, but may be detailed by the brigade or next superior commander.

Where the detail of a field officer as a court was made by the brigade commander, in a case where there was present in command of the regiment a field officer superior to the one detailed, who would have been the proper officer to make the detail, it was held that such action did not affect the validity of the proceedings of the field officer's court.2

As the field officer's court is applicable to the regimental organization only, the commander of a post, whose command is not a regimental organization, is not competent to convene a field officer's court."

CHAPTER III.

JURISDICTION OF COURTS-MARTIAL.

Source of Jurisdiction. Courts-Martial derive their jurisdiction, in this country, from statutes of Congress. Under its constitutional power "to make rules for the regulation and government of the land forces," Congress has established a military discipline, defined military offenses, provided courts for their trial and punishment, prescribed the jurisdiction and practice of these courts, and the mode of executing their sentences; in fact, has done everything necessary for a proper administration of justice in the army.

Limited Jurisdiction. It was early settled by the Supreme Court that the circuit and district courts of the United States have no criminal jurisdiction but what is expressly conferred upon them by statute,' and the reasoning in those cases is equally applicable to courtsmartial. Both derive their jurisdiction from the same source-Congress-but not from the same constitutional grant. Civil courts derive their jurisdiction from those clauses of the constitution referring to the judicial power, while courts-martial derive theirs from that clause referring to the war power of Congress, and these two powers are entirely independent of each other..

2

3

1 U. S. v8. Hudson, 7 Cranch, 32; U. S. vs. Wiltberger, 5 Wheaton, 76; U. S. vs. Bevans, 3 Wheaton, 376.

2 Art. III. § 1, Art. I. § 8, Clause 9. 4 Dynes vs. Hoover, 20 Howard, 79.

3 Art. I. § 8, Clause 13.

Courts-martial are, therefore, courts of limited and special jurisdiction, and it should appear upon the record the facts or circumstances which give jurisdiction, either expressly or by legal intendment.1

Though limited in their jurisdiction, in cases within their competency courts-martial, when legally constituted and duly organized, are courts whose decisions are as conclusive and complete as any civil court of original jurisdiction.'

Responsibility for Excess of Jurisdiction. Courtsmartial must confine themselves strictly to their statutory jurisdiction and prescribed mode of procedure, and any excess will render each member responsible in damages to an aggrieved party.

In 1806, a court-martial fined one Wise, a justice of the peace within the District of Columbia. Wise brought a suit against Withers, a collector of militia fines, for entering his house, vi et armis, and taking away his goods. to satisfy the judgment of this court. The Supreme Court on writ of error decided "that a justice of the peace is exempt from the performance of militia duty;" and further said, "it follows from this opinion that a courtmartial has no jurisdiction over a justice of the peace as a militiaman; he could never be legally enrolled; and it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officers are all trespassers.

In Dynes vs. Hoover, the same court held that where a court is illegally constituted, or acts in a case where it has no jurisdiction over the subject matter or charge, or

1 Turner vs. The Bank of North America, 4 Dallas, 11.

Houston vs. Moore, 5 Wheaton, 1; Dynes vs. Hoover, 20 Howard, 83; Rawson vs. Brown, 6 Shepley (Maine), 216; Brent vs. Bogardus, 7 Johns, (N Y.), 157.

Wise vs. Withers, 3 Cranch, 330, et seq.

4 20 Howard, 80-83.

one in which, having jurisdiction over the subject matter, it failed to observe the rules prescribed by the statute for its exercise; in such cases all the parties to such illegal trial are trespassers upon a party aggrieved by it, and he may recover damages from them in a proper suit in a civil court by the verdict of a jury.

The court further said," When we speak of proceed ings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistaken rulings in respect to evidence or law, but of a disregard of the essentials required by the statute under which the court has been convened to try and to punish an offender for an imputed violation of the law."

The English practice conforms to this. In 1743, Lieutenant Frye, serving in the West Indies on a British man-of-war, was ordered by his superior officer to assist in arresting another officer. The lieutenant demanded what he had, according to the customs of the naval service, a right to demand, a written order, before he would obey the command. For this he was put under arrest, tried by a naval court-martial, and sentenced to fifteen years' imprisonment. It appears that the depositions of certain illiterate persons, unknown to the accused, were taken and admitted in evidence; that the accused objected to such evidence, but the objection was overruled. In 1746 he brought an action in the Court of Common Pleas against the president of the court-martial, and damages of £1000 were awarded for his illegal detention and sentence; and the judge informed him that he might also bring his action against any member of the court-martial.' Nature and Classes of Jurisdiction. Jurisdiction is the power of a court to try, the capacity to punish. That

1 MacArthur, Vol I., pp. 268-271.