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. 3 Limitations as to Time. The jurisdiction of courts 1 Kent's Commentaries, Vol. I. § 341, Note “ a," also, Smith vs. McIver, 9 Wheaton, 532. ? Kent's Commentaries, Vol. II., §§ 122-125. 3 VI. Opinions Attorney-General, April 7, 1854. 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." 2 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 1 XIV. Opinions Attorney General, June 12, 1872. 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 authorities 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.' 112 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.3 1 S XIV. Opinions Attorney-General, June 30, 1873. 3 Ibid. 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.' Much Jurisdiction after Expiration of Service. question has arisen among writers 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." 3 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 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. 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.2 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 Scott's Digest of Military Laws, 421. 2 G. C. M. O., 16, A. G. O., Aug, 30, 1871; see also VIII. Opinions Attorney. General, 328, and IX, Ibid, 182. |