Military commissions organized during the Civil War, in a state not invaded and not engaged in rebellion, in which the federal courts were not obstructed in the exercise of their judicial functions, had no jurisdiction to convict, for a criminal offence, a citizen, who was neither a resident of a rebellious state, nor a prisoner of war, nor a person in the military or naval service ; and congress could not invest them with any such power ; Ex parte Milligan, 4 Wall. (U. S.) 2, 18 Ed. 281. Cases arising in the land and naval forces, or in the militia in time of war or public danger, are excepted from the right of trial by jury ; ibid.
The court must appear from its record to have acted within its jurisdiction ; Fox v. Wood, 1 Rawle (Pa.) 143 ; Brooks v. Adams, 11 Pick. (Mass.) 442; Mills v. Martin, 19 Johns. (N. Y.) 7 ; Mathews v. Bowman, 25 Me. 168 ; Ex parte Biggers, 1 McMull. (S. C.) 69; Mitchell v. Harmony, 13 How. (U. S.) 134, 14 L. Ed. 75. A court-martial unlawful ly convened is not a de facto court; Mc Claughry v. Deming, 186 U. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049. A want of jurisdic tion either of the person, Meade v. Deputy Marshall, 1 Brock. 324, Fed. Cas. No. 9,372, or of the offence, will render the members of the court and officers executing its sen tence trespassers ; Wise v. Withers, 3 Cra. (U. S.) 331, 2 L. Ed. 457. So, too, the mem bers are liable to a civil action if they ad mit or reject evidence contrary to the rules of the common law ; 2 Kent 10 ; V. Kennedy, Courts-Mart. 13 ; or award excessive or il legal punishment; V. Kennedy, Courts-Mart. 13. The President may return the proceed ings with a recommendation that a more severe sentence be imposed ; Swaim v. U. S., 165 U. S. 563, 17 Sup. Ct. 448, 41 L. Ed. 823. The decision and sentence of a court-mar tial, having jurisdiction of the person accus ed and of the offence charged, and acting within the scope of its lawful powers, cannot be reviewed or set aside by writ of habeas corpus; Johnson v. Sayre, 158 U. S. 109, 15 Sup. Ct. 773, 39 L. Ed. 914. But by habeas the legality of the action of a court martial—whether it was legally constituted and had jurisdiction—may be enquired into ; In re Reed, 100 U. S. 23, 25 L. Ed. 538.
"Courts-martial are lawful tribunals, with authority to determine finally any case over which they have jurisdiction, arid their pro ceedings, when confirmed as provided, are not open to review by the civil tribunals, ex cept for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had ex ceeded its powers in the sentence pronounc ed." Carter v. Roberts, 177 U. S. 496, 20
Sup. Ct. 713, 44 L. Ed. 861. Quoted with ap proval in Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 L. Ed. 236 ; Grafton v. U. S., 206 U. S. 333, 347, 27 Sup. Ct. 749, 51 L. Ed. 1084.
The presumptions in favor of official ac tion preclude attack, on the sentences of courts-martial, though they are courts of spe cial or limited jurisdiction ; In re Chapman, 166 U. S. 670, 17 Sup. Ct. 677, 41 L. Ed. 1154, disapproving Runkle v. U. S., 122 U. S. 543, 7 Sup. Ct. 1141, 30 L. Ed. 1167. They are entitled to the same finality as to the issue involved as the judgment of a civil court ; Grafton v. U. S., 206 U. S. 333, 27 Sup. Ct. 749, 51 L. Ed. 1084. Questions of procedure, the improper admission of evidence, and the like, are not grounds of collateral attack on the judgment of a court-martial ; Swaim v. U. S., 165 U. S. 553, 17 Sup. Ct. 448, 41 L. Ed. 823. Under Art. 62, general courts-martial may take cognizance of all crimes not capital committed by an officer or soldier in the ter ritory within which he is serving ; this is concurrent with civil courts ; if the former first obtains jurisdiction, its judgment can be disregarded by the civil courts only for rea sons affecting its jurisdiction ; Grafton v. United States, 206 U. S. 333, 27 Sup. Ct. 749, 51 L. Ed. 1084.
If the offence is a crime against society, the punishment provided by law may be im posed and also a dishonorable discharge ; In re Mason, 105 Z. S. 696, 26 L. Ed. 1213.
Acquittal by a court-martial does not bar a prosecution by the civil authorities ; In re Fair, 100 Fed. 149. Acquittal in a state court on a charge of murder does not bar a trial by court-martial for "conduct to the prejudice of good order and military discip line," though based on the same act ; In re Stubbs, 133 Fed. 1012.
The President, by virtue of his office as Commander-in-Chief, may appoint a general court-martial; Swaim v. U. S., 165 U. S. 553, 17 Sup. Ct. 448, 41 L. Ed. 823.
The presiding officer has no command over the other members ; they are all on an equal ity ; Dig. J. Adv. Gen. 609.
No officer shall, when it can be avoided, be tried by officers inferior to him in rank. 79th Art. Whether it "can be avoided" is for the decision of the convening officer ; Swaim v.