(d) Articles not appearing in the above list are either identical with the corresponding articles in the Code of 1916 or merely differ in details not. affecting the substance (e. g., the word "trial" has been inserted in several articles before the words "Judge advocate," for the sake of clarity).

D. AMENDMENTS TO THE CODE OF 1920

Arts. 50% and 70 were amended by act of Aug. 20, 1937 (50 Stat. 724).

354. Title and operation.-The articles included in this section shall be known as the Articles of War and shall at all times and in all places govern the armies of the United States. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 787); 10 U.S. C. 1471.

355. Date effective. That the provisions of Chapter II of this Act shall take effect and be in force eight months after the approval of this Act: Provided, That articles 2, 23, and 45 shall take effect immediately. Sec. 2, Ch. II, act of

June 4, 1920 (41 Stat. 812).

356. Offenses committed prior to the enactment of the present code. That all offenses committed and all penalties, forfeitures, fines, or liabilities incurred prior to the taking effect of Chapter II of this Act, under any law embraced in or modified, changed, or repealed by Chapter II of this Act, may be prosecuted, punished, and enforced in the same manner and with the same effect as if this Act had not been passed. Sec. 3, Ch. II, act of June 4, 1920 (41 Stat. 812); 10 U. S. C. 1593a.

356a. Personnel of other services.-The Marine Corps shall, at all times, be subject to the laws and regulations established for the government of the Navy, except when detached for service with the Army by order of the President; and when so detached they shall be subject to the rules and articles of war prescribed for the government of the Army. R. S. 1621; 34 U. S. C. 715.

Officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for service with the Army in accordance with the provisions of section sixteen hundred and twenty-one of the Revised Statutes, shall, while so serving, be subject to the rules and articles of war prescribed for the government of the Army in the same manner as the officers and men of the Marine Corps while so serving. Act of Aug. 29, 1916 (39 Stat. 573); 34 U. S. C. 716.

357. Repeal of prior laws.-That section 1342 of the Revised Statutes of the United States be, and the same is hereby, repealed, and all laws and parts of laws insofar as they are inconsistent with this Act are hereby repealed. Sec. 4, Ch. II, act of June 4, 1920 (41 Stat. 812).

This is the section of the Revised Statutes containing the former Articles of War.

I. PRELIMINARY PROVISIONS

358 (A. W. 1). Definitions.-The following words when used in these articles shall be construed in the sense indicated in this article, unless the context shows that a different sense is intended, namely:

(a) The word "officer" shall be construed to refer to a commissioned officer; (b) The word "soldier" shall be construed as including a noncommissioned officer, a private, or any other enlisted man;

(c) The word "company" shall be understood as including a troop or battery; and

(d) The word "battalion" shall be understood as including a squadron. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 787); 10 U. S. C. 1472.

Same as in Code of 1916.

359 (A. W. 2). Persons subject to military law. The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law," or "persons subject to military law," whenever used in these articles: Provided, That nothing contained in this Act, except as specifically provided in article 2, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction unless otherwise specifically provided by law.

(a) All officers, members of the Army Nurse Corps, warrant officers, Army field clerks, field clerks, Quartermaster Corps, and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same;

(b) Cadets;

(c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such detachment ceases;

(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles;

(e) All persons under sentence adjudged by courts-martial;

(f) All persons admitted into the Regular Army Soldiers' Home at Washington, District of Columbia. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 787); 10 U. S. C. 1473; 34 U. S. C. 715.

This article became effective on June 4, 1920.

The following portion of subdivision (a) is new: "members of the Army Nurse Corps, warrant officers, Army field clerks, field clerks Quartermaster Corps."

Notes of Decisions

Persons not in military service; improper induction. Alleged deserter not served with notice of finding of physical qualification was unlawfully inducted into military service as respected jurisdiction of court-martial. Ver Mehren v. Sirmyer (C. C. A., 1929), 36 F. (2d) 876.

Lack of jurisdiction of court-martial could not be waived by a defendant who had not been lawfully drafted into military service. Id.

Dropping name from official register.-The dropping of the name of a naval officer from the official register does not raise a presumption that the President has dropped him from the rolls, under Article 36 of the Articles for the Government of the Navy (similar to 476, post), and he remains amenable to trial by court-martial. Ex parte Smith (D. C., 1931), 47 F. (2d) 257.

II. COURTS-MARTIAL

360 (A. W. 3). Courts-martial classified.-Courts-martial shall be of three kinds, namely:

First, general courts-martial;

Second, special courts-martial; and

Third, summary courts-martial. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. S. C. 1474.

Same as in Code of 1916.

A similar organization is prescribed for the National Guard not in the service of the United States. See sec. 102, act of June 3, 1916, post, 1273.

Notes of Decisions

Review of decisions.-Party asserting validity of judgment of court-martial has burden of proving necessary jurisdictional facts. Ver Mehren v. Sirmyer (C. C. A., 1929), 36 F. (2d) 876.

Courts-martial derive their validity from the authority of Congress "to make rules for the government and regulation of the land and naval forces" in Article I, section 8, clause 14, of the Constitution. They are entirely independent of the Judicial system authorized in Article III of the Constitution, and civil courts may inquire only as to their jurisdiction. Where the court was convened by officers empowered by statute to call it, its members were of the class authorized to be detailed for that purpose, and its sentence was within the provisions of the statute, the court was vested with jurisdiction of the person and the offense charged, and is not deprived of such jurisdiction by the fact that prejudice may intervene, or that perjury may

be committed by witnesses, or that procedural mistakes may occur. It follows that the civil courts have no authority to review the proceedings of the court-martial. Carter v. Woodring (App. D. C., 1937), 92 F. (2d) 544.

The civil courts can inquire as to jurisdiction of military courts and can declare courtmartial proceedings to be a nullity if Jurisdiction is found to be lacking.

The sentence of a court-martial which possesses jurisdiction is conclusive and beyond review of civil courts for alleged error occurring in course of trial.

The sentence of court-martial which had Jurisdiction to try army officer would not be reviewed by court of equity, notwithstanding that prejudice may have intervened in trial, or that perjury may have been committed by witnesses, or that mistakes concerning rules of procedure governing case may have occurred. Id.

A. COMPOSITION

361 (A. W. 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. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. S. C. 1475.

The sentence beginning "When appointing," etc., is new. It embodies "advice" to the same effect first given convening authorities, under date of July 14, 1919, in Changes No. 5 to par. 6, Manual for Courts-Martial, 1917.

By a proviso in sec. 4, act of Apr. 25, 1914 (38 Stat. 347), it was provided that no distinction 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.

362 (A. W. 5). General courts-martial; composition.-General courts-martial may consist of any number of officers not less than five. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. S. C. 1476.

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

Number of members.-Accused, by silence | of nine members. Aderhold, Warden, v. Menein court-martial proceedings, waived objection | fee (C. C. A., 1933), 67 F. (2d) 345. to trial before court-martial of seven instead

363 (A. W. 6). Special courts-martial; composition.-Special courts-martial may consist of any number of officers not less than three. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. S. C. 1477.

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 360, 362, ante.

364 (A. W. 7). Summary courts-martial; composition.-A summary courtmartial shall consist of one officer. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. S. C. 1478.

Same as in Code of 1916.

B. BY WHOM APPOINTED

365 (A. W. 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 President may by regulations prescribe. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. 8. C. 1479.

The second paragraph is new.

The President is also empowered to appoint courts-martial in the particular case provided for by R. S. 1230, ante 227.

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, 1274, post.

366 (A. W. 9). Special courts-martial; appointment.-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. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 788); 10 U. S. C. 1480.

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, 1275, post.

367 (A. W. 10). Summary courts-martial; appointment. 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 courtsmartial may in any case be appointed by superior authority when by the latter deemed desirable: Provided, 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. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 789); 10 U. S. C. 1481.

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, 1276, post.

368 (A. W. 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 counsel when necessary: Provided, however, That no officer who has acted as a member, trial judge advocate, assistant trial judge advocate, defense counsel, or assistant defense counsel in any case shall subsequently act as a staff judge advocate to the reviewing or confirming authority upon the same case. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 789); 10 U. S. C. 1482.

Article 11, Code of 1916, read as follows:

“ART. 11. APPOINTMENT OF JUDGE ADVOCATES.-For each general or special court-martial the authority appointing the court shall appoint a judge advocate and for each general court-martial one or more assistant judge advocates when necessary."

C. JURISDICTION

369 (A. W. 12). General courts-martial.-General courts-martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, and any other person who by the law of war is subject to trial by military tribunals: Provided, That no officer shall be brought to trial before a general court-martial appointed by the Superintendent of the Military Academy: Provided further, That the officer competent to appoint a general court-martial for the trial of any particular case may, when in his judgment the interest of the service shall so require, cause any case to be tried by a special court-martial notwithstanding the limitations upon the jurisdiction of the special court-martial as to offenses set out in article 13; but the limitations upon jurisdiction as to persons and upon punishing power set out in said article shall be observed. Sec. 1, Ch. II, act of June 4, 1920 (41 Stat. 789); 10 U. 8. C. 1483.

The second proviso is new.

On Jan. 22, 1919, shortly after the armistice in the World War, the War Department issued instructions that "in view of the cessation of hostilities and the reestablishment of conditions approximating those of peace within the territorial limits of the United States, the propriety of observing limitations upon the punishing powers of courts-martial as established by Executive order of Dec. 15, 1916, is obvious," and directed that trial by general court-martial within the territorial limits of the United States should be restricted to cases where adequate punishment could not be imposed by a special or summary court or under art. 104, post. The provisions of this telegram were merely directory, however, and concerned only the punishment to be inflicted, and until the enactment of the above article, containing this new proviso, an offense which was capital only in time of war (e. g., arts. 58, 59, 86) had to be tried by general court-martial so long as a technical state of war existed. This made necessary the trial by general court-martial of many minor offenses which would otherwise have been tried by special or summary court. The reason for now permitting such cases to be sent to a special court, but not to a summary court, is probably found in the greatly reduced punishing power of the summary court, under the new articles. See arts. 14, post, 371.