as successfully used as, say, scopolamin. These and other similar methods are still in the experimental stage; yet in police and detective work, when rightly used, they are of great value. The technique has not progressed sufficiently to enable use to be made of them in court. The lessons of this book have not been learned by lawyers and the public; repetition for many years will be necessary before common fallacies will be exploded-fallacies which seriously impede the administration of justice. How often do we hear people condemn circumstantial evidence, and by implication assert their confidence in direct testimony. Those who are not familiar with the subject matter in the chapters on Illusion, Memory and Suggestion, should become so. They will learn how fallible is the testimony in which judges and juries place confidence. On this subject Charles S. Whitman says in his preface to the book: "Although the articles were first published about fourteen years ago, they have lost none of their timeliness, interest, or helpfulness. They introduce the reader to the subject of psychology as a science; and they contain lessons in experimental psychology which are invaluable to anyone interested in the administration of justice. The book should stimulate an interest in the study of this branch of knowledge, which should form an important and essential adjunct of the equipment of every investigator and trier of fact, and should encourage the application of this science to practical use in testing the truth or accuracy of historical narrative by witnesses." Books Received CRIME, ABNORMAL MINDS AND THE LAW. By Ernest Bryant Hoag. Bobbs-Merrill Company, Indianapolis, Indiana, 1923. Pp. xxiv, 405. LAW AND PRACTICE IN BANKRUPTCY. VOLS. 2 and 3. By William Miller Collier. Edited by Frank B. Gilbert and Fred E. Rosbrook. Matthew Bender Company, Albany, New York, 1923. pp. xxii, 1015-2037, pp. xvi, 2038-2901. WOODROW WILSON'S CASE FOR THE LEAGUE OF NATIONS. Compiled with his approval by Hamilton Foley. Princeton University Press, Princeton, New Jersey, 1923. pp. 271. California Law Review VOL. XII JANUARY, 1924 Number 2 Jurisdiction of Military Tribunals in the United States Over Civilians HE object of the present inquiry is to discover the extent of Th the jurisdiction of tribunals of the land and naval forces of the United States and of the several states and territories thereof, over civilians, i.e., over persons engaged in civil pursuits as distinguished from those connected with the military and naval service. The jurisdiction over persons who by law constitute part of the Army, Navy, or Marine Corps of the United States, or of the Coast Guard (which, by Act of January 28, 1915,2 was made part of the military forces of the United States), or of the National Guard or other state forces, whether they belong to the permanent establishment or to a temporary force, and whether they are commissioned officers or enlisted men, or officers without commission such as warrant officers, cadets, army nurses, and paymasters' clerks, is therefore excluded from consideration. The jurisdiction of these tribunals is regulated by the following provisions of the Constitution of the United States: "The Congress shall have power . . . to make rules for the government and regulation of the land and naval forces: ... to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States . . 193 "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the crime shall have been committed; . . ." "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand 17 Cyc. 155. 238 U. S. Stats. at L. 801, U. S. Comp. Stats. (1918 ed.) § 84591⁄2 a (1), 2 Fed. Stats. Ann. (2d ed.) 262. 3 U. S. Const., Art. I, § 8, cl. 14 and 16. U. S. Const., Art. III, § 2, cl. 3. jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person . . . be deprived of life, liberty, or property, without due process of law; ..." "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law ... Our statutes conferring jurisdiction on military tribunals proceed on the assumption that the exception as to cases "arising in the land or naval forces, or in the militia, when in actual service" applies to the Sixth as well as to the Fifth Amendment, and this view has never been questioned. The expression "when in actual service..." relates to the militia only. It appears, then, that Congress may, under Article I, Section 8, erect tribunals separate from the Federal judiciary, and endow them with criminal jurisdiction, without regard to territorial limitations, and without the intervention of grand or petit juries, in cases arising within the exception in the Fifth Amendment. It seems equally clear that Congress cannot, under the Constitution, give such tribunals jurisdiction over cases not so arising." From the foregoing it will be noted that while the Federal Constitution limits the powers of military tribunals to cases arising in the land or naval forces, or in the militia at certain times, it does not specifically restrict their jurisdiction to persons in the military or naval service. The guarantees of the Fifth and Sixth Amendments do not restrain the states. It is true that the Constitution also provides ". . . nor shall any state deprive any person of life, liberty, or property without due process of law,"10 but neither indictment by grand jury nor trial by petit jury are necessary parts of "due process of law". However, most if not all the states, in their constitutions, guarantee the right of trial by jury in criminal cases, and some 5 U. S. Const., Amend. V. 6 U. S. Const., Amend. VI. Johnson v. Sayre (1894) 158 U. S. 109, 39 L. Ed. 914, 15 Sup. Ct. Rep. 773. 8 In re Bogart (1873) 2 Sawy. 396, Fed. Cas. No. 1596, 17 Int. Rev. Rec. 155, 7 American Law Review, 749. Ex parte Milligan (1866) 71 U. S. (4 Wall.) 2, 18 L. Ed. 281. 10 U. S. Const., Amend. XIV, § 1. 11 Hurtado v. California (1884) 110 U. S. 516, 28 L. Ed. 232, 4 Sup. Ct. Rep. 111; Maxwell v. Dow (1900) 176 U. S. 581, 44 L. Ed. 597, 20 Sup. Ct. Rep. 448; Spies v. Illinois (1886) 123 U. S. 131, 31 L. Ed. 80, 8 Sup. Ct. Rep. 22. specifically prohibit the trial of persons not in the militia by military tribunals. It will not be possible to consider here all the constitutional guarantees of all the states. By way of example, however, we may consider the Constitution of California. That document provides : "The right of trial by jury shall be secured to all, and remain inviolate..." "12 "Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment 9913 "No person shall . . . be deprived of life, liberty, or property without due process of law."14 "The legislature shall provide, by law, for organizing and disciplining the militia, in such manner as it may deem expedient, not incompatible with the Constitution and laws of the United States."15 We may now proceed to inquire into the jurisdiction of military tribunals under the Constitution. According to the definition of Mr. Chief Justice Chase, expressed in a dissenting opinion in Ex parte Milligan: "There are under the Constitution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion or civil war within states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights."16 12 Cal. Const., Art. I, § 7. 15 Cal. Const., Art. VIII, § 1. 16 (1866) 71 U. S. (4 Wall.) 2, 141, 18 L. Ed. 281. This was not the decision in the case, and it cannot be assumed from the foregoing that the court decided that military tribunals might exercise jurisdiction in all, or indeed in any, of the above circumstances. However, as the distinction above set forth between military law, military government, and martial law in no way conflicted with the decision of the court and is generally accepted, we may take this opinion as a convenient basis for discussion. We will first consider jurisdiction under military law, i.e., under the rules enacted by Congress, under Article I, Section 8, of the Constitution," "for the government and regulation of the land and naval forces" both in peace and in war. I. MILITARY LAW Under military law, jurisdiction of military tribunals under the authority of the United States is conferred by express statutes on four sets of courts: (1) army tribunals (general, special, and summary courts-martial), (2) navy tribunals (general and summary courts-martial and deck courts), (3) coast-guard tribunals (coastguard courts), and (4) tribunals of the national guard not in Federal service (general, special, and summary courts-martial). "The jurisdiction of every court-martial, and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: 1. That it was convened by an officer empowered to appoint it; 2. That the persons who sat upon the court were legally competent to do so; 3. That the court thus constituted was invested by the acts of Congress with power to try the person and the offense charged; and 4. That its sentence was in accordance with law."18 The statutes now in force conferring jurisdiction on these different tribunals are found in the following acts of Congress: Army tribunals, June 4, 1920;19 Navy tribunals, Section 1624, United States Revised Statutes, June 23, 1874,20 March 3, 1893,21 17 Supra, p. 75. 18 Deming v. McClaughry (1902) 113 Fed. 639, 650, 5 C.C.A. 349; McClaughry v. Deming (1902) 186 U. S. 49, 63, 46 L. Ed. 1049, 22 Sup. Ct. Rep. 786. 19 41 U. S. Stats. at L. 787, U. S. Comp. Stats. (1923 Supp.) § 2308a, Fed. Stats, Ann. (1920 Supp.) 330. 20 U. S. Rev. Stats. § 1624, 18 U. S. Stats. at L. 203, U. S. Comp. Stats. (1918 ed.) § 2742, Barnes Fed. Code, § 2237, 6 Fed. Stats. Ann. (2d ed.) 1014. 21 27 U. S. Stats. at L. 716, U. S. Comp. Stats. (1918 ed.) § 2983, 1 Fed. Stats. Ann. (2d ed.) 440. |