of courts-martial may be conveniently arranged for discussion under the following heads: civil and criminal, original and appellate, exclusive and concurrent. Civil and Criminal. Courts-martial are tribunals with the sole power of trying criminal cases. These cases, as a rule, are named in terms in the articles of war; but, by the 62d Article, their jurisdiction is extended to "all crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline." Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the army and navy, and by those who have studied the law of courts-martial, and the offenses of which the different courts-martial have cognizance.1 Original and Appellate. In all cases save one the jurisdiction of courts-martial is original. The 30th Article provides for an appeal from the regimental court-martial named therein to a general court-martial, but this is the only case where a military court exercises an appellate jurisdiction-nor is there any appeal from the decisions of a court-martial to any other court. In Dynes vs. Hoover the Supreme Court said,-" 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 decis1 Dynes vs. Hoover, 20 Howard, 82. 220 Howard, 82. ions no appeal or jurisdiction of any kind has been given to the civil magistrate or the civil courts." Exclusive and Concurrent. Jurisdiction is likewise exclusive and concurrent. Over purely military offenses courts-martial have at all times exclusive jurisdiction.1 In time of war, insurrection, and rebellion, jurisdiction is also conferred over a class of offenses not purely military. These are larceny, robbery, and all those offenses named in the 58th Article, when committed by persons in the military service of the United States. This jurisdiction is held by the Judge-Advocate General to be exclusive. Where a person in the military service is held in custody of the civil authorities, charged with one of the crimes mentioned in this article, the governor of the State in which the prisoner is confined should be called upon to deliver him up to the military authorities for trial by a military court, he being entitled to such a disposition under the provisions of the article." Concurrent Jurisdiction. There are certain cases in which the jurisdiction of courts-martial is, in a certain sense, concurrent with the civil courts. Soldiers do not cease to be citizens by enlisting in and joining the army, and are just as amenable to the civil tribunal as other persons. In entering the military service they take upon themselves new responsibilities without freeing themselves from the old. A civil offense, therefore, may not only constitute an offense against the civil authority, but also against the military, and, as such, be punishable by both. In this sense the jurisdiction of the military and civil courts is concurrent. 1 See cases cited in Note 1, p. 1, Chap. III., also U. S. vs. Mackenzie, 1 N. Y. Legal Observer, p. 371. 2 Opinions J. A. G., p. 211. I. Bishop's Criminal Law, 5th Ed., § 46. This double accountability, where an offense bears criminal qualifications to two jurisdictions, has been frequently affirmed by the Supreme Court.1 Trial and punishment by both is not regarded as coming within that clause of the constitution which provides that "no person shall be twice put in jeopardy of life or limb for the same offense." Many cases in our service have settled this question beyond dispute. In 1839 Captain Howe of the Dragoons was charged with "conduct to the prejudice of good order and military discipline," in cruelly beating, kicking, and maltreating a private soldier belonging to his command, all of which cruelty did cause the death of said private. The court-martial convened in April, 1840. The second special plea in bar of trial, presented by the accused, was to the effect that the charges against him were not proper to be tried by a court-martial, but only by a civil court; and that the offense, if committed at all, was committed within the county of St. John, E. F., and that the superior court of the Eastern District of Florida had jurisdiction in said offense. The court sustained this second plea, and decided that they could not take cognizance of the offense for the trial of which the court was convened. The commanding general disapproved this decision, inasmuch as the unmilitary conduct charged ought to have been tried by the court-martial, leaving the homicide to be tried by the civil tribunal. Subordination to Civil Authority. It is a conceded. fact in this country that the military is ever subordinate to the civil, but the question arises, in this connection, which of these courts would first take cognizance of cases 1 Fox vs. Ohio, V. Howard, 434-435; U. S. vs. Marigold, IX. Ibid, 569; Moore vs. Ilinois, XIX. Ibid, 20. 2 G. O. 25, A. G. O., May 22, 1840. Vide VI. Opinions Attorney-General, June 5, 1854. of this kind, and whether, after proceedings have commenced, a military court would be bound to deliver up the prisoner to the civil authority. In the case of Captain Howe, although the courtmartial had commenced proceedings, the commanding general, out of respect to the civil authority, deemed it proper to suspend all proceedings in the case, until the decisions of the civil court should be made known. If this was a case of absolutely concurrent jurisdiction, the court which first took cognizance of the case would attach to itself exclusive jurisdiction.' But as the jurisdiction is concurrent as to the person, and not as to the offense, this rule does not obtain. The rule laid down by Attorney-General Cushing, accords with the civil practice. He says, "Any other court having lawful jurisdiction may proceed against the prisoner at the same time for another offense, or for another criminal qualification of the same act; but the latter court cannot take the custody of his person away from another court where jurisdiction has lawfully attached." * * * "If the jurisdiction of a court-martial has not lawfully attached, the commanding officer should upon application by the civil authorities, in accordance with the 59th Article of War, deliver up the prisoner. But if the party escape from the sheriff, or if he be released on bail, or if he be tried and acquitted, or if he be tried and convicted, in each of these cases, as soon as he leaves the manual custody of the civil magistrate, he reverts to the authority of his military superior." He may then be tried by a military court. Limitations as to Time. The jurisdiction of courts1 Kent's Commentaries, Vol. I. § 341, Note " a," also, Smith vs. McIver, 9 Wheaton, 532. Kent's Commentaries, Vol. II., §§ 122-125. martial depends materially upon the time of committal of the offense. The 103d Article provides that no person shall be liable to be tried and punished by a general court-martial for any offense which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period. This limitation was first introduced into our articles in 1806, and applies to all offenses. In estimating the time, however, the order convening the court is not to be considered as the order for the prisoner's trial, but the order of the reviewing authority referring the charges to the court for trial. Where the offense appears to have been committed more than two years before the order for trial, the onus probandi would rest upon the government to prove the "absence or other manifest impediment." In 1872 the Attorney-General gave as his opinion that," the words 'other manifest impediment' must be construed with the words immediately preceding, viz. 'reason of having absented himself,' and, taken together, it is apparent that the impediment intended by this act is an impediment similar in kind to absence; that is, one which renders it impossible for a prosecution' to take place, I do not think it could be extended to concealment of the offense. The fact that the offense was not discovered by government will not be sufficient manifest impediment' to warrant a trial." a Attorney-General Taft held that the "absence" spoken of, in order to bring the accused within the jurisdiction of a court," must be such as to render him not amenable to XIV. Opinions Attorney General, June 12, 1872. 2 Ibid., also June 30, 1873. |