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justice.” “The word “amenable’ as used in this article would seem to mean, within the reach and power of the military authorities to bring to trial before a court-martial. Unquestionably the absence of the accused in a foreign land would place the accused beyond such jurisdiction, and thus make him amenable; so, it has been thought, would absence within the limits of the country if he were where the military authorities by reasonable diligence could not discover him." “It would be difficult, perhaps impossible, to lay down any general rule whereby to determine in all cases under what facts and circumstances the accused may be deemed to be beyond the reach and power of the military authoritics to bring him to trial, or beyond the jurisdiction of a court-martial. This is a matter which must needs be left, in each case, to the judgment of the court itself, upon the particular facts and circumstances appearing therein, subject to revision by the proper authority.” . Deserters. In the case of deserters much difficulty has arisen in determining when the statute of limitations commence to run. As formerly interpreted it was held, that, taking into consideration the language of the 48th Article, the limitation would commence to run from date of apprehension or surrender. This view is very ably maintained by Adjutant-General Townsend in a pamphlet printed in 1876, and is shown to have been the practice of the government for a long number of years. Two other interpretations have been advanced as to when the limitation commences: 1st. At the end of two years from the date of desertion. 2d. Two years after the expiration of the term for which the soldier enlisted; this being the latest opinion.” As there has been much controversy over this point, the Secretary of War, in his annual report of 1877, recommended that it be set at rest by final legislation. It is settled in reference to this class of offenders, that the enlisting in another regiment, or branch of the service, will not constitute such “absence” or “manifest impediment” as will entitle the government to try after the expiration of two years.' Jurisdiction after Expiration of Service. Much question has arisen among writors on military law as to whether a court-martial has jurisdiction over an officer or soldier after they have been dismissed the service, or their term of service has expired. English writers maintain that an officer can be brought before a court-martial after being dismissed the service. They base their opinion upon the case of Lord George Sackville.” This officer was deprived of his military command and commission, without having been brought to trial, for imputed misconduct at the battle of Minden. He demanded a court-martial, and the question of competency was referred to the twelve judges, who unanimously declared that they saw no ground to doubt the legality of the jurisdiction of a court-martial under those circumstances. He was therefore tried by court-martial, pronounced guilty, and sentenced as follows: “that the said Lord George Sackville is, and he is hereby adjudged unfit to serve his Majesty in any military capacity.” The only case in this country in which this question has been the subject of judicial decision, is that of William B. Bird, which came before the United States District Court for the District of Oregon, in 1871. Judge Deady said, “As at present advised, I do not see what provisions of the constitution, or statute, or principle of common law can be invoked to prevent the arrest and trial of a person by court-martial for a military offense, committed while such person was an officer or soldier of the army of the United States, after the expiration of the term of service, so that the order for trial is issued within the time limited by the article of war.” " This, however, does not correspond to the general practice of our government. In 1871 the President announced that the enactments to be found in Articles 48 and 60 are held to show legislative recognition of the general rule, to which the military department of the government also has uniformly adhered in practice, to wit, that officers or soldiers, after they have been regularly discharged from the military service, or after their term of service has expired, unless proceedings against them have been commenced before such expiration, are not (except when otherwise provided by statute) within the jurisdiction of a court-martial for offenses committed by them while in service.” In the case of Joseph White, a discharged soldier undergoing sentence of a general court-martial, the question arose as to whether an offender who has never passed from military control, cannot be made amenable to some tribunal for new crimes committed while a prisoner, and upon this question Major G. N. Lieber, Judge-Advocate U. S. A., recommended that White be allowed to serve out his time of confinement, and that he then be turned over to the civil authorities for trial for the assault and battery. The Adjutant-General, in a letter to the commanding general Department of Dakota, said, “I have the
1 § XIV. Opinions Attorney-General, June 30, 1873. * XV. Opinions Attorney-General, Sept. 1, 1876. 3 Ibid.
1 Harris' Case, XIV. Opinion Attorney-General, June 30, 1873. G. C. M. O. 63, A. G. O., Aug. 10, 1874.
* Tytler p. 113, Hough's Precedents, 6 and 16.
* Smollett's England, Vol. 13, p. 271.
1 Scott's Digest of Military Laws, 421. * G. C. M. O., 16, A. G. O., Aug, 30, 1871; see also VIII. Opinions Attorney. General, 328, and IX, Ibid, 182.
honor to inform you that the Judge-Advocate General of the army concurs in the opinion of Major Lieber, and remarks that the want of authority in a military court to try him for the offense he is alleged to have committed, results necessarily from his discharge from the army, which has formally and completely separated him from the military service; that he is now only a citizen suffering punishment as a military convict, under a sentence passed upon him ; while as a soldier, he was subject to military discipline and control; that it may be inconvenient for his trial for this offense to be postponed until the expiration of his period of confinement, but this inconvenience, however great it may be, cannot give to a military court jurisdiction over an ordinary assault and battery committed by a citizen. The Secretary of War approves the views of the Judge-Advocate General.” I Exceptions. There are, however, as recognized in the order above quoted, certain exceptions to this rule. First. Where an officer has been arrested, or a soldier confined, for a military offense before expiration of service. A case illustrative of this was that of William Walker, a seaman in the navy. He was put in confinement, and charges were preferred against him to the Secretary of the Navy before the expiration of the term of his enlistment. The Supreme Court of Massachusetts decided in 1830 that this was “clearly a sufficient commencement of the prosecution to authorize a court-martial to proceed to trial and sentence, notwithstanding the term of service had expired before the court-martial had been convened.” The court further remarked, to show the fallacy of a different construction, “that if any of the class of offenses not punishable at common law, and of which no other courts excepting courts-martial can take cognizance, should be committed immediately before the expiration of his term of service, he would escape with impunity. He might be guilty of the grossest insults to his officers; of disobedience of orders in the most critical moment to the ship ; and in the hour of battle he might refuse to fight, and there would be no power to punish him.” " In the case of Bird, before mentioned, it was held that the jurisdiction of courts-martial under these circumstances, was undoubted.” Second. When the term of service has expired, but no muster out has been made, or discharge given. The Judge-Advocate General decided, during the war, that officers and soldiers of volunteers remain liable to trial and punishment for military offenses, although their terms of service have expired, if they have not been formally mustered out.” The same would be true of a regular soldier until he is regularly discharged." In the case of Dinsman vs. Wilkes, the Supreme Court held that “the decision of the question (whether the commander of a squadron had power to detain a marine after the term of his enlistment expired, if in the opinion of the commander public interest required it) by the commander was final and conclusive, and if the marine did not conform to it he was liable to punishment.” Third. When an officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he had been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed, and if American Jurist, April No. 1830.
* Letter dated A. G. O., Sept. 28, 1872.