General Courts-Martial. The President of the United States, being by the constitution Commander-inChief of the army, may appoint general courts-martial; and by the 72d Article, whenever any officer therein authorized to appoint a general court-martial, is the accuser or prosecutor of any officer under his command, the President is required to appoint the court.

The Secretary of War may appoint general courtsmartial. No principle of law is better established than that the Secretary of War, in ordering a court-martial in any case, represents the President, whose executive agent he simply is in the matter. A court-martial, instituted by G. O. 26, A. G. O., Aug. 27, 1850, expressed a doubt as to the regularity of the order by which it was convened, on the ground that the Secretary of War was not competent to render such an order. The President held it legal.2 The Supreme Court has also decided that the acts of the War Department are, in legal contemplation, the acts of the President.3

Any general officer commanding the army of the United States, a separate army, or a separate department, shall be competent to appoint a general court-martial either in time of peace or war.1

Where an officer with the brevet of a general officer is assigned by the President to command an army, or separate department, and placed on duty according to his brevet rank, he is entitled to order a court under this article.

The "army" which a general must command under this article must be held to mean a body of men under military 1 Opinions J. A. G., p. 25.

G. O. 35, A. G. O., Oct. 30, 1850.

U. S. vs. Eliason, 16 Peters, 291. Wilcox vs. Jackson, 13 Peters, 498. • Art. 72.

organization that is complete in itself, and does not exist as an integral part of some other organization.1

In time of war the commander of a division, or a separate brigade of troops, is competent to appoint a general court-martial, but when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander.2

The Superintendent of the Military Academy has power to convene general courts-martial for the trial of cadets, and to execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other general courts-martial.3

For many years, and up to 1841, it was customary for commanding officers, to whom the right of convening general courts-martial had been given, to delegate such authority to inferior commanders, at least so far as to authorize them to name or appoint the members of the court; but it was decided that he alone to whom the law has given the authority to act in such cases, must appoint the court; and no right to delegate such authority can be exercised without the express sanction of law.*

Regimental Courts. Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regiment or corps, courts-martial, consisting of three officers, to try offenses not capital.

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In time of war, however, no soldier serving with his regiment shall be tried by a regimental or garrison courtmartial when a field officer of his regiment may be so detailed."

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

3 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 of ficer 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.1

2

3

1 U. S. v8. Hudson, 7 Cranch, 32; U. S. vs. Wiltberger, 5 Wheaton, 76; U. S. "8. Bevans, 3 Wheaton, 376.

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

3 Art. I. § 8, Clause 13.