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untrammeled an exercise of their powers, In re Davison (C. C. 1884), 21 Fed. 618.

Procedure.-In the absence of a regulatory statute, the proceedings of courtsmartial are governed by the usages and customs of the military service, and not by common-law rules applicable to civil tribunals.

Kirkman v. McClaughry (1908), 160 Fed. 436, 90 C. C. A. 86, affirming order (C. C. 1907), 152 Fed, 255,

Rules of evidence in general. In general, courts-martial are governed by the same rules of evidence which govern the ordi. nary courts of criminal jurisdiction. These rules, where not provided by statute, are supplied by the common law. (1882) 17 Op. Atty. Gen. 310.

Opinions as to admissibility of evidence. It is not the official duty of the Secretary of ar to give to the judge advocate, and thus to the court-martial, an opinion as to the admissibility of certain evidence in the trial of a case before the court, nor as to the construction of a statute.

Such questions should be left to the decision of the court-martial itself. (1881) 17 Op. Atty. Gen, 54.

Jurisdiction of military commissions.-See Ex parte Milligan (1866), 4 Wall. 2, 130, 18 L. Ed. 281 : Coleman 0. Tennessee (1878), 97 U. S. 509, 512, 24 L. Ed. 1118.

Officers competent to sit on courts-martial.-- Retired officers of the Army are ofli. cers in the military service of the United States within the meaning of the Fourth Article of War, post, and an order assigning such officers to a court-martial was within the authority conferred upon the Secretary of War by 2431, ante, to assign retired officers of the Army, with their consent, to active duty on

courts-martial. Kahn v. Anderson (1921), 254 L'. S. 65 L. Ed. 288; U. S. v. Tyler (1881), 103 U. S. 244.

Officers of the United States Guards, a force organized by the President under the power conferred on him by sec. 2. of the selective service act, ante 2163, were, since by the express terms of sec. 1 of said art, a part of the Army of the United States, competent to be assigned to court-martial duty. Kalm 7. Anderson (1921), 234 U, S. -; 65 L, Ed. 288. (Qriery, was not reference to sec. 1 of the national defense act of June 3, 1916, intended ?)

On habeas corpus, evidence is inadmissible to show that retired officers who composed the court-martial in time of war were employed on active duty in the discretion of the President, when that fact is not shown by the record.

Ex parte Flenkes (D. C. 1919), 267 Fed. 276; reversed (c. C. A. 1921)

Fed. hnt compare Givens 1. Terbat (1921), 254 U.S. : 05 L. Ed. 284.

The graduated cadets of the Military Academy, assigned to service as superoumerary officers, are brevet second lieutea ants, and as such commissioned officers, and therefore subject to all the duties and entitled to exercise all the powers of that grade, including the legal capacity to sit on courts-martial as commissioned officers, But the undergraduate cadets are not commissioned officers, and therefore are not competent to sit on a court-martial. (1821) 1 Op. Atty. Gen. 469; (1829) 2 Op. Atty. Gen. 251; (1829) 7 Op. Atty. Gen. 323.

Volunteer naval officers appointed ander act of July 24, 1861, held "commissioned officers," and competent to serve on general courts-martial. (1863) 10 Op. Atty. Gea, 522.

See, also, notes under art. 3, post.

Showing of validity, etc., of proceedings.Evidence that the accused, at the time of his trial and conviction for a homicide before a general court-martial, had a military status, is adonissible on habeas corpus where, except for the form of charge, the court-martial record failed to establish that the accused belonged to the Army, but did establish on its face the power to courede the court-martial, so that the authority of that court to decide the particular subject before it was undoubted. Givens v. Zerbst (1921), 254 U. S. ; 65 L. Ed. 284; In re Bergdoll (D. C. 1921), Fed.

Courts-martial being courts of inferior and limited jurisdiction, it must be made to clearly and affirmatively appear, in order to give effect to their judgments, that the court was legally constituted, that it bad jurisdiction of the person and offense charged, and that its judgment imposed was conformable to law. Hamilton 1. MeClaughry (C. C. 1905), 136 Fed. 445; Brooks 1. Adams (1831), 28 Mass. 441; Mills v. Martin (N. Y, 1821), 19 Johns. 7; Duffield v. Smith (Pa. 1818), 3 Serg. & R. 590.

Proof that a court-martial was vened by an officer empowered by the statute to call it, that the officers whom he commanded to sit upon it were of those whom he was authorized to detail for that purpose, that the court thus constituted was vested with power to try the person and the offense charged, and that its sentence was in conformity to the statute, was indispensable to its jurisdiction and to the validity of its judgment. Demning v. Mo Claughry (1992), 113 Fed. 639, 51 C. c. A. 349; order affirmed, Medl: ghry . Deming (1992), 22 Sup. Ot. 786, 186 U. S. 49. 46 L. Ed. 1049.

But it is not necessary, on the trial be fore a general court-martial, to negative every possible condition the existence of which might have prevented the court frem

con

trying the case, including the possibility that the officer under trial might have belonged to a command which did not come within the power to call a court-martial conferred upon the convening officer, Givens v. Zerbst (1921), 254 U. S.-; 65 L. Ed. 284. Compare Ex parte Henkes (D, C. 1919), 267 Fed. 276; reversed (C. C. A. 1921), Fed.

Estoppel to deny legality of court-martial,-- Though an officer, suspended from rank and duty for twelve years, with a forfeiture of half his pay, waited six years before bringing an action, it can not be held that he acquiesced in the sentence, or that he is concluded from contesting its legality by accepting the hall pay without rendering service. Swain v. U. S. (1893), 28 Ct. CI, 173.

Waiver of objections to jurisdiction of court-martial.--Since a United States court. martial, constituted to try delinquent militiamen, sit as jndges, a party arrested waives all objections to the jurisdiction of the court by pleading guilty. Vander heyden v. Young (N. Y. 1814), 11 Johns. 150. But see (1898) 22 Op. Atty. Gen. 137, holding that the consent of the accused can not confer jurisdiction upon a court not possessing it by virtue of statutory au. thority.

Review of decisions.-- Where a court-martial bas jurisdiction of the person accused and of the offense charged, and acts within the scope of its lawful powers, its decisions and sentences can not be reviewed or set aside by the civil courts. Mullan v. U. S. (1909), 212 U. S. 516; U. S. v. Grimley (1890), 11 Sup. Ct. 54, 137 U. S. 147, 34 L. Ed. 6:36, reversing judgment in re Grimley (C. C, 1889), 38 Fed. 84 ; Swaim 19. 0. S. (1897), 17 Sup. Ct. 448, 431, 165 U. S. 553, 41 L. Ed. 823; In re Zimmerman (C. C. 1887), 30 Fed. 176, 177 ; In re McVey (D. C. 1885), 23 Fed. 878 ; U, S. v. Praeger (D. C. 1907), 149 Fed. 474 ; Ex parte Tucker (D. C. 1913), 212 Fed. 569; U. S. v. McDonald (D. C. 1920), 265 Fed. 754; In re Feinler (Sup. Ct., D. C., 1921), 19 Wash. L. R. 147.

The only authority of the civil courts is to inguire whetber the military authorities are proceeding regularly within their jurisdiction. If they are, they can not be interfered with, no matter what errors may be committed in the exercise of their lawful jurisdiction. U. S. v. Grimley (1890), 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636, reversing judgment In re Grimley (C. C. 1889), 38 red. 84; C. S. v. Williford (C. C. A. 1915), 220 Fed. 291 ; Ex parte Dostal (D. C. 1917), 243 Fed. 664; Swaim v. U, S. (1897), 17 Sup. Ct. 448, 451, 165 U. S. 573, 41 L. Ed. 823 ; Carter v. Roberts (1900), 20 Sup. Ct. 713, 177 U. S. 496,

44 L. Ed. 861 ; Grafton o. U. S. (1907), 27 Sup. Ct. 749, 750, 206 U. S. 333, 51 L. Ed. 1084, 11 Ann, Cas. 640; Ex parte Mason (1881), 105 U. S. 696, 699, 26 L, Ed. 1213; In re McVey (D. C. 1885), 23 Fed. 878 ; Ex parte Tucker (D. C. 1913), 212 Fed. 569; In re Esmond (D. C. 1886), 5 Mackey, 64. And this is so even though the civil court, if it had first taken hold of the case, might have tried the accused for the same offense, or even for one of higher grade arising out of the same facts. Gratton v. U. S. (1907), 27 Sup. Ct. 749, 750, 206 U, S. 333, 51 L. Ed. 1084, 11 Ann, Cas. 640.

Civil courts have no jurisdiction to interfere with the military tribunals, while proceeding regularly in the exercise of their jurisdiction to try parties accused of desertion from the Army. In re White (C. C. 1883), 17 Fed. 723.

The jurisdiction of a general court-martial may always be inquired into by the civil courts, upon the application of any party aggrieved by its judgment; and it such a court exceeds its authority, and undertakes to try and punish a person not within its jurisdiction, Its Judgment is void, and may be so declared by any court having jurisdiction of the proper parties and of the subject-matter. Barrett v. Hopkins (C, C. 1881), 7 Fed. 312; Dynes v. Hoover (1857), 20 How. 65, 82, 15 L. Ed, $38.

The acts of a court-martial, within the scope of its jurisdiction and duty, can not be controlled or reviewed in the civil courts by writ of prohibition or otherwise. Snrith v. Whitney (1886), 116 U. S. 167, 177, 6 Sap. Ct. 570, 29 L. Ed. 601.

If a court-martial has jurisdiction to hear and determine, and to render the particular judgment or sentence imposed, however erroneous the proceedings may be, they can not be reviewed collaterally upon habeas corpus In re Davison (C. C. 1884), 21 Fed. 618. The only questions which can

be in quired into are as to the jurisdiction of the court over the person of the accused and the offense charged, and whether it acted within the scope of its lawful powers. Rose v. Roberts (C. C. A. 1900), 09 Fed. 948; In re Crain (C. C. 1897), 84 Fed. 788.

If a court-martial originally had jurisdiction, it must be shown, to warrant interference, that at some point it lost it. U. S. v. Hunt (D. C. 1918), 254 Fed. 365.

The severity of a sentence, or alleged errors of law committed by the court-martial, can not be reviewed. Ex parte Dickey (D. C. 1913), 204 Fed. 322.

Where, on return to a writ of habeas corpus, the respondent alleged that he held the petitioner under a judgment of convic

tion by a military court-martial, the burden is on the respondent to show that the judgment was based on some provision of positive law. Hamilton V. McClaughry (C. C. 1905), 136 Fed: 445.

Where a court-martial has jurisdiction, error in its exercise can not be reviewed in a proceeding by an Army officer, sentenced by such court to be dismissed from the service, to recover arrears of pay, on the ground that he never was dismissed in fact, by reason of the failure of the President

of the United States to approve the setterce. And specifications of a charge, tried by a court-martial, not objected to for insufficiency on the trial, will not be held on their face incapable of sustaining the charge, on review of such proceedings.

U. S. E. Fletcher (1893), 13 Sup. Ct. 552, 554, 555, 148 U. S. 84, 37 L. Ed. 378.

Review by supreme court of proceedings of military commission, see Ex parte Vallandigham (1863), 1 Wall. 243, 251, 17 L Ed. 589.

A. COMPOSITION.

Art. 4. Who may serve on courts-martial.-All officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts. martial for the trial of any persons who may lawfully be brought before such courts for trial. When appointing courts-martial the appointing authority shall detail as members thereof those officers of the command who, in his opinion, are best qualified for the duty by reason of age, training, experience, and judicial temperament; and officers having less than two years' service shall not, if it can be avoided without manifest injury to the service, be appointed as members of courts-martial in excess of the minority membership thereof.

The sentence beginning " When appointing." etc., is new. It embodies "advice " to the same effect given convening authorities in Changes No. 5 to par. 6, Manual for Courts-Martial, July 14, 1919.

By a proviso in sec. 4, act of Apr. 25, 1914, ante, 2499, it was provided that no distine tion should be made in respect to the eligibility of any officer of the Regular Army, the organized militia while in the military service of the United States, and the volunteer forces, for service upon any court-martial, court of inquiry, or military commission,

See notes under art. 5, post.

Art. 5. General courts-martial.-General courts-martial may consist of any number of officers not less than five.

Art. 5, Code of 1916, read as follows:

"Art. 5. GENERAL COURTS-MARTIAL.-General courts-martial may consist of any number of officers from five to thirteen, inclusive; but they shall not consist of less than thirteen, when that number can be convened without manifest injury to the service."

Notes of Decisions.

See, also, notes to art. 3, ante. Department commander.-In the absence of legislation, or of orders from competent authority, forbidding it, personal presence within the territorial limits of his command is not essential to the valldlty of an order given by a department commander appointing a court-martial within such limits. Ile may appoint general courtsmartial, and act upon the record of proceedings of the same, when outside the territorial limits of his command. (1880) 16 Op. Atty. Gen. 679.

Trial as due process of law.-Trial by a court not legally constituted is not a trial which can be said to be "due process of law." (1898) 22 Op. Atty. Gen. 137.

Number of members. This section is merely directory to the officer appointing the court, and his decision as to the nunber which can be convener! without manifest injury to the service, being submitted to his sound discretion, is concluslve. Mar. tín v. Mott (1827), 12 Wheat, 19, 35, 6 L. Ed. 537; Kahn v. Anderson (1921), 254 U. S. ; 65 L. Ed. 288; (1832) 2 Op. Atty. Gen. 534 ; (1854) 6 Op. Atty. Gen. 506. But where the court is of the minimum number, the incompetency of member renders the proceedings void ab initio. Brown v. U. S. (1906), 41 Ct. Cl. 275.

Where one of the five officers composing a court-martial was absent during part of

one

the trial, he was not qualified to take part in the sentence, and the tribunal in consequience not being composed of the requisite number of officers, it was not qualified to pronounce judgment. (1831) 2 Op. Atty. Gen. 414.

Where a general court-martial was, after report, required by the Secretary of War to reassemble and revise its sentence, and on reassembling two of the original were absent, but a legal quorum remained, the court might lawfully revise its sentence. (1855) 7 Op. Atty. Gen. 338.

Art. 6. Special courts-martial.-Special courts-martial may consist of any uuinber of officers not less than three.

Art. 6, Code of 1916, read as follows:

"ART. 6. SPECIAL COURTS-MARTIAL.--Special courts-martial may consist of any number of officers from three to five, inclusive."

See notes under arts. 3 and 5, ante.

Art. 7. Summary courts-martial.-A summary court-martial shall consist of one officer,

Same as in Code of 1916.
See notes under arts. 3 and 5, ante.

B. BY WHOM APPOINTED.

Art. 8. General courts-martial.-The President of the United States, the commanding officer of a territorial division or department, the Superintendent of the Military Academy, the commanding officer of an army, an army corps, a division, or a separate brigade, and, when empowered by the President, the commanding officer of any district or of any force or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority, and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution,

The authority appointing a general court-martial shall detail as one of the members thereof a law member, who shall be an officer of the Judge Advocate General's Department, except that when an officer of that department is not available for the purpose the appointing authority shall detail instead an officer of some other branch of the service selected by the appointing authority as specially qualified to perform the duties of law member. The law member, in addition to his duties as a member, shall perform such other duties as the Presi. dent may by regulations prescribe.

The second paragraph is new.
See notes under art. 5, ante.

The President is also empowered to appoint courts-martial in the particular case provided for by R. S. 1230, ante 2447.

For the authority to appoint general courts-martial in the National Guard not in the service of the United States, see sec. 103, act of June 3, 1916, ante 2559.

Notes of Decisions.

Construction.-The term “ district" as virtue of being commander in chief of the used in this article has no technical mili- Army. Swaim v. U. S. (1897), 165 U. S. tary meaning but includes the territory 553. occupied by a permanent military camp. The authority of the President, under Ex parte Givens (1920), 262 Fed. 702. this article, to empower “the commanding

Power of President.-In addition to the officer of any district or of any force or statutory authority conferred upon him by body of troops to appoint general courtsthis section, the President is also empow- martial, was not exceeded by a general ered to appoint general courts-martial by order giving the power stated to certain

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designated camp commanders. Givens v. Zerbst (1921), 204 U. S. i 65 L. Ed. 284.

Commander as accuser or prosecutor.President as prosecutor, so as to deprive him of

power to appoint court-martial under art. 72, superseded by this section, see Swaim v. U. S. (1897), 165 U. S. 553.

A commander of division who, upon information laid before him of grave misconduct on the part of a regimental officer in his command, directed the colonel of the regiment (from whom the information was received) to prefer charges against the alleged offender, and who saw that the charges were put in proper form, and to that extent superintended their preparation, held not to be deemed the accuser or prosecutor of such alleged offender. And it was held that where the record of a trial before a court-martial was defective, in failing to show who was the originator or signer of the charges against the accused, and who was to be treated legally

the accuser or prosecutor, evidence aliunde was admissible to supply the information, (1878) 16 Op. Atty. Gen. 107.

A general officer commanding a mili

tary department held to bare no power to appoint a court-martial for the trial of an officer under his command where be was himself the “accuser or prosecutor." (1882) 17 Op. Atty. Gen. 436.

Convening order.-A camp commander, la exe the power which he possesses by virtue of a general order of the Presideet, sanctioned by this article, need not teir to such order, Girens v. Zerbst (1921), 254 U. S. - ; 65 L, Ed. 284,

Prosecutor as member of court.-bere I court-martial has jurisdiction of the pf son of accused, its sentence is valid, we questioned collaterally, although irregularities or errors are alleged to have occurred in its proceedings, in that the prosector was a member of the court and a witnes on the trial. Keyes v. U. S. (1883), 3 Sup. Ct. 202, 204, 109 U. S. 336, 27 L. Ed. 954. And where an officer on trial, haring an opportunity to object to any member of the court-martial, makes no objection to one who preferred one of the charges, and will be a witness to establish it, be consents to the court being so made up, and can not question its jurisdiction for that reason. Keyes v. U. S. (1879), 15 Ct. Cl. 532.

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Art. 9. Special courts-martial.—The commanding officer of a district, garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a brigade, regiment, detached battalion, or other detached command may appoint special courts-martial; but when any such commanding officer is the accuser or the prosecutor of the person or persons to be tried the court shall be appointed by superior authority, and may in any case be appointed by superior authority when by the latter deemed desirable; and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution.

Same as in Code of 1916.

For the authority to appoint special courts-martial in the National Guard not in the service of the United States, see sec. 104, act of June 3, 1916, ante, 2560.

Art. 10. Summary courts-martial.—The commanding officer of a garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a regiment, detached battalion, detached company, or other detachment may appoint summary courts-martial; but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable: Prorided, That when but one officer is present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him.

Same as in Code of 1916.

For the authority to appoint summary courts-martial in the National Guard not in the service of the United States, see sec. 105, act of June 3, 1916, ante 2561.

Art. 11. Appointment of trial judge advocates and counsel. For each general or special court-martial the authority appointing the court shall appoint a trial judge advocate and a defense counsel, and for each general court-martial one or more assistant trial judge advocates and one or more assistant defense coud

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