COURTS, MTLITART. Military courts are dis tinguished from civil courts both in their organi zation and procedure. They are divided into courts-martial and courts of inquiry, which in their various forms are described below.
Cot:I:Ts-MARTIAL ( Fr., military courts) are statutory institutions for the enforcement of order and discipline in armies and navies. The American Army is governed by a military code mainly derived from that of England. The mili tary tribunals instituted in America and Eng land for the administration of this code do nut. differ materially in composition, power, or pro cedure. The court of the constable and marshal recognized in the statute of Richard 11. c. 2 appears to have been the first in England to administer military justice. The office of high constable was abolished in the reign of henry VIII., and with it lapsed all the criminal juris diction of this court. From this time until 1689. when military courts were recognized by statute, military law was administered by means of eom missioners, by the general in command of troops. or by means of deputies appointed by him. These commissioners or deputies were usually officers of the army, and constituted courts or councils of war. Some time prior to the passing of the Mutiny Act these councils of war were called courts-martial, and with few modifications are now the existing military tribunals.
American courts-martial are instituted by authority of Congress, in pursuance of a power, conferred by the Constitution, to try offenses committed while the party is in the military service. These courts arc (1) the general court martial ; (2) the summary court: (3) the gar rison court; (4) the regimental court. The jurisdiction of the general court-martial extends to every person subject to military law- for any offense within the cognizance of a military court. it is the only military court that can try a com missioned officer, and it takes cognizance of the serious offenses committed by enlisted men. The power to assemble a general court-martial is given by statute to the President of the United States and to any general officer commanding an army, a territorial division, or department, or colonel commanding a separate department. In time of war the commander of a division or of a separate brigade of troops is empowered to appoint this court. The that a general court martial may consist of any number of officers from five to thirteen inclusive, and that it shall not consist of less than thirteen when that num ber can he convened without manifest injury to the service. The officers who are competent to
appoint a court-martial are competent to appoint a judge-advocate for the same. The judge-advo cate prosecutes in the name of the United States. and is. under certain circumstances, counsel for the prisoner. He summons witnesses for prosecu tion and defense. The original charges are sent to this officer, and if he considers any amend ment necessary he communicates with the officer appointing the court. When the convening officer has satisfied himself that the charge preferred discloses an offense under the Articles of War (q.v.), and that the evidence forthcoming is sufficient to justify the trial of the accused, he issues an order defining the place and time of the meeting of the court, and naming. in the order of their rank in the service. the officers who are to compose it.
When a commissioned officer is to he tried the officer appointing the court details, if he can, without prejudice to the service, officers of rank equal or superior to that of the accused. Ile also avoids detailing the officer who has investi gated the charges against the accused, or one who %vitt be a principal witness against him, or the immediate commanding officer of the accused. A member of a court of inquiry respecting the matter on which the charges are founded, or an officer who has a personal interest in the case, is not detailed. Court-martial procedure does not differ materially from that of the ordinary criminal courts of the country. This court, is, however. a judge of the law as well as of the facts of the ease it tries. Before it proceeds upon any trial the judge-ad•ocate administers an oath to each member which requires him, as a juror, to well and truly try and determine, ac cording to evidence, the matter . . . before him, etc., and as a judge to duly administer jus tice without partiality, favor, or affection, etc. This oath includes also one of secrecy as to the votes of members, and of the sentence of the court, until approved. The judge-advocate is also required to take a similar oath of secrecy. Congress has power to prescribe not only the organization and jurisdiction of courts-martial, but also their practice, and the mode of exe cuting their sentences, It has secured to the accused a right of challenge to a member of his court. and immunity from a second trial for the same offense. It has fixed the period of time within which the accused must be prosecuted. The form of procedure for a general court martial is laid down in works treating of the subject of military law.