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 Generali

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

1 Letter dated A. G. O., Sept. 28, 1872.

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." 1

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."

3

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 1 American Jurist, April No. 1830.

Scott's Digest of Military Laws, 421.

4 See U. S. vs. Travers, 2 Wh. Crim. Cas. 490.

3 Opinions J. A. G., 210.

XII, Howard, 390.

a court-martial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal of the President shall be void.1

The President cannot dismiss an officer in time of peace.2

Fourth. Where an officer procures his resignation or muster out on false representations.

In this case his discharge may be revoked, and he brought to trial for offenses committed before such discharge. It is a principle of law that fraud vitiates any contract, and that no party is bound by an engagement or obligation into which he has been induced to enter through the fraud or false representation of another. The burden of proof would rest upon the government to show that the discharge was procured through fraud. If, however, the discharge was not fraudulently procured, it cannot be revoked against the will of the party. Having once duly left the service he cannot be caused to enter it without his consent.3

Fifth. Where any person in the military service commits any of the offenses named in the 60th Article of War.

The statute of limitations applies, however, to offenses under this article.*

Sixth. Where a soldier is a deserter.

Every soldier who deserts the service of the United States shall be tried by a court-martial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried."

In the case of an officer dropped for desertion, under the provisions of section 1229 Revised Statutes, and afterwards recaptured, he cannot be tried by a courtmartial.1

1 G. C. M. O. 16; A. G. O., Aug. 30, 1871.

CHAPTER IV.

SPECIAL JURISDICTION OF COURTS-MARTIAL.

We come now to the special jurisdiction of the different courts-martial, and the limitations upon their jurisdiction.

The decision as to which of these courts will have jurisdiction in any case will depend upon the rank of the accused, the nature of the offense, and the punishment that may be inflicted; and, as between regimental, garrison and field officer's courts, whether the offense was committed in time of peace or war.

The only court capable of trying all classes of military offenders and offenses is the general court-martial; and it may try the greatest or the smallest offenses.

Offenses exclusively Cognizable by a General Court. There are certain offenses exclusively cognizable by a general court-martial, and these are:

First. Those which officers may commit under the rules and articles of war.

Article 79 provides that officers shall be tried only by general court-martial; and no officer shall, when it can be avoided, be tried by officers inferior to him in rank. Whether the trial of an officer by officers of an inferior rank can be avoided or not is a question, not for the accused or court, but for the officer convening the court, and his decision upon this point, as upon that of the number of members that can be detailed, is conclusive. From 1 Wooley vs. U. S. 20 Law Reports, 621.