ing oficer and the officers of the regiment, troop, battery, company and detachment, to which the person so accused belongs, are required, except in time of war, upon application duly made by or on behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him in order to bring him to trial. If upon such obligation any officer refuses or wilfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service."

This article has been interpreted a number of times by the opinions of the Judge-Advocate-General of the United States, and the following principles laid down.

The article includes offenses committed by soldiers against municipal ordinances or by-laws. But it applies only to criminal charges. It does not extend to subpoenas summoning soldiers as witnesses in the civil courts though, as a matter of comity, commanding officers will always give their men permission to obey such mandates.

The 59th Article refers only to soldiers within the immediate control of the military authorities. Soldiers absent on leave or furlough may be arrested like any other citizens. It does include, however, offenses committed by soldiers before they came under the orders of the particular officer upon whom the demand by the civil authorities is made even offenses committed by the soldier before enlistment. It does not apply to civilians resident or employed upon military premises. These may be summarily seized by the civil authorities, though comity requires that even in such cases notice be given to the commanding officer.

The two classes of tribunals should take care not to come into conflict in the performance of their duties. If an act committed by a soldier is an offense against both the civil and the military law, that authority which first assumes jurisdiction over him retains it until the end, and the other should await the results of its operations and judgment. Thus, the 59th Article does not, in general, require the surrender to the civil authorities of a soldier under

confinement by order of a court martial. Likewise a soldier released on bail by a civil court should not be tried by a court martial unless this can be done and punishment inflicted in such a manner as not to interfere with the proceedings in the civil court. But when sentence is completed in one court, the prisoner is then liable in the other, and his former trial and conviction is no defense.

Finally the 59th Article does not apply in time of war except in the discretion of the commanding officer upon whom demand is made. As a matter of fact, however, it may be noted that during the Spanish-American War, in 1898, an officer in the United States volunteers was actually given up to the civil authorities upon a charge of forgery.

§ 711. The Power of Congress to Vest in Military Tribunals Exclusive Jurisdiction over All Offenses Committed by Military Persons, Including Offenses Which Are also Crimes Against the Civil Law.

There is an obiter dictum upon this point in Coleman v. Tennessee.1 The point directly decided in that case was that a certain section (30) of the Enrollment Act had not, as a matter of fact, made the jurisdiction of the military tribunals over certain offenses committed by soldiers in the army exclusive of the state courts. But after deciding this in the negative the court add: "We do not mean to intimate that it was not within the competence of Congress to confer exclusive jurisdiction upon military courts over offenses committed by persons in the military service of the United States. As Congress is expressly authorized by the Constitution to raise and support armies' and to make rules for the government of the naval and land forces,' its control over the whole subject of the formation, organization and government of the national armies including therein the punishment of offenses committed by persons in the military service, would seem to be plenary. All we now affirm is, that by the law

14 97 U. S. 509; 24 L. ed. 1118.

to which we are referred, the 30th section of the Enrollment Act, no such exclusive jurisdiction is vested in the military tribunals.” The court then go on to state that no reasons of public policy required such exclusive jurisdiction in the military tribunals, that such an interpretation of the enrollment act was not necessary for maintaining the efficiency of the army, since the courts could not take persons from the military service without the consent of the military authorities.

Some light is also thrown upon the subject by the case of Ex parte Mason,15 decided in 1882. Mason was a sergeant of artillery in the army of the United States. While on guard duty at the United States jail in Washington, he wilfully and maliciously and with intent to kill, discharged his musket through a cell window at a prisoner in the jail. He was court martialed and sentenced to be dishonorably discharged from the army, "and then to be confined at hard labor in such penitentiary as the proper authorities may direct for eight years." Mason petitioned for writs of habeas corpus and certiorari. The Supreme Court doubted if it had jurisdiction to issue such a writ, "inasmuch as it has no power to review the judgments of courts martial." "We all agree, however," the court continue," that if a writ might issue there could be no discharge under it if the court martial had jurisdiction to try the offender for the offense with which he was charged, and the sentence was one which the court could, under the law, pronounce." Commenting upon the 59th Article of War, the court say: "It is not pretended that any application was ever made under this article for the surrender of Mason to the civil authorities for trial. So far as appears, the person injured by the offense committed was satisfied to have the offender dealt with by the military tribunals. The choice of the tribunal by which he is to be tried has not been given to the offender. He has offended both against the military and the civil law. As the proper steps were not taken to have him proceeded against by the civil authorities, it was the clear duty of the military to bring him to trial under that jurisdiction. Whether after 15 105 U. S. 696; 26 L. ed. 1213.

trial by the court martial he can again be tried in the civil courts, is a question we need not now consider. It is enough if the court martial had jurisdiction to proceed, and what has been done is within the powers of that jurisdiction."

The court then go on to hold that the court martial had power to pass the sentence, citing the 97th Article of War, providing that no court martial shall sentence a person to imprisonment in the penitentiary unless by some statute law, state or federal, or by the common law, in force where the offense was committed, the offender would have been subject to such imprisonment. The court continue: "When the act charged as 'conduct to the prejudice of good order and military discipline' is actually a crime against society which is punishable by imprisonment in the penitentiary, it seems to us clear a court martial is authorized to inflict that kind of punishment. The act done is a civil crime and the trial is for that act. The proceedings are had in a court martial because the offender is personally answerable to that jurisdiction. The 62d article provides that the offender, when convicted, shall be punished at the discretion of the court, and the 97th article does no more than prohibit the court from sentencing to imprisonment in a penitentiary in cases where, if the trial had been had for the same act in the civil courts, that could not be done."

The question raised by the Supreme Court in this Mason case whether there might not be cases in which the correction and punishment at the hands of the military power of an offense which is also an offense against the local civil law might be a bar to further criminal proceedings in the civil courts, appears to the writer one which it was improper to raise in a speculative way, for the doctrine cannot be doubted that, so long as Congress has not made the military jurisdiction exclusive, the local civil courts have the right and authority to punish all violations of the laws which they are established to interpret and apply. It is true that this doctrine, as suggested in the Mason case, renders possible a second punishment where the first had been a sufficient vindication of the law. But courts, both military and civil, are to be presumed

to strive to do substantial justice, and, therefore, they may be expected when called upon to impose a second penalty to consider the severity of the punishment already endured. As the Supreme Court has itself many times said, the mere possibility of a misuse of power is not a conclusive or even presumptive argument against its existence.

Whether or not, however, Congress has the constitutional power, except in time of war, to render the jurisdiction of military tribunals exclusive, as indicated obiter in Coleman v. Tennessee, would seem to be more doubtful; and when, if ever, that question is squarely presented to the Supreme Court, that tribunal may consider more carefully the possibility of the exaltation of the military over the civil authorities implicit in its obiter dictum in the Coleman case.

§ 712. Powers of Military Tribunals in Times of War.

In time of war, and especially upon the actual theatre of war, military courts have, without express legislative authorization, exclusive jurisdiction over the members of the military forces. As the court say in Coleman v. Tennessee:16 "In denying to the military tribunals exclusive jurisdiction under the section of the law of Congress in question, over the offenses mentioned, when committed by persons in the military service of the United States and subject to the Articles of War, we have reference to them when they were held in States occupying, as members of the Union, their normal and constitutional relations to the Federal Government, in which the supremacy of that government was recognized, and the civil courts were open and in the undisputed exercise of their jurisdiction. When the armies of the United States were in the territory of insurgent States, banded together in hostility to the national government and making war against it, in other words, when the armies of the United States were in the enemy's country, the military tribunals mentioned had, under the laws of war and the authority conferred by the section named, exclusive jurisdiction to try and punish offenses of every grade committed by persons in the military service. Officers and soldiers

16 97 U. S. 509; 24 L. ed. 1118.