§ 3396. Ancients-Generally.-A tribunal in some form has existed from the earliest history of armies whose functions it was to enforce discipline and punish offenders. In the Roman army the magistry militum and the legionary tribunes, either as sole judges or with the assistance of councils sat as military tribunals. The early Germans in time of war tried their military offender by the Duke or military chief, but he usually delegated his jurisdiction to the priests accompanying the army. Courts of regiments held either by the colonel or by an officer invested by him with the staff or mace called the regiment arose in later times. The king reserved the power to convene the courts composed of bishops and nobles for the trial of high commanders. But courts administering military codes were not instituted until in comparatively modern times.1 Military jurisdiction in France was originally invested in the Mayor of the Palace, the Grand Seneschal, the constable, and the Provost-Marshal. Courtsmartial appear to have been first established in the year 1655.2 Among the Saxons or the Anglo-Normans the hearing was before a jury of the Peers of the accused or his military associates upon specific charges; he was permitted to defend and the proof was made by witnesses produced and examined. The courts-martial of the later periods adopted and followed the main features of these courts of the Anglo-Saxons.3 1 Adams Roman Ant. 330; Bruce's Institutes 295, et seq.; Von Molitor Kriegsgerichte und militärstrafen 11; Koopmann Militärstrafgesetzbuck; Ayala de Judiciis Militaribus. Le Faure 141; Foucher Code de la Justice Militaire 3. 3 Von Molitor, § 1, par. 8; 1 Winthrop Mil. Law & Prec. 4, 47. § 3397, History of courts-martial in England.—Col. Winthrop says in substance that the modern court-martial in England had its origin in the "King's Court of Chivalry," or "Court of the High Constable and Marshal of England." This court was also called "Court of Arms," or "Court of Honor;" the judges of this court were the Lord High Constable and Earl Marshal. Originally this court had both civil and criminal jurisdiction; it took cognizance of "all matters touching honor and arms," "pleas of life and member arising in matters of arms and deeds of war," "the rights of prisoners taken in war" and also of "the offenses and miscarriages of soldiers. contrary to the laws and rules of the army;" it exercised jurisdiction in cases of civil crimes and on questions of contract. But this court of Chivalry was subsequently much limited in its power and finally upon the attainder of the High Constable in the thirteenth year of Henry the Eighth fell into disuse and while never abolished by specific statute, it had practically ceased to exist as a military tribunal before the time of the English Revolution. In later years the administration of justice in the military forces was by courts or councils held under what was known as the ordinance or articles. There were usually orders or proclamations directly from the King issued for the government of the army when about to proceed upon an expedition or from time to time during war; "these were succeeded by more extended precepts which continued to be put forth by the Crown, or by its authority, to the period of the rebellion. These articles and the Code promulgated by Gustavus Adolphus were superceded by what has been known as the 'Mutiny Act.' This Act and subsequent renewals were continued in force until 1879 when it was succeeded by a new law entitled the 'Army Discipline and Regulation Act.' By this the sovereign was authorized to make articles of war and rules of procedure for courts-martial, and from this we have the present English courts-martial." § 3398. History of courts-martial in the United States. On the origin and history generally of courts-martial in the United States Col. Winthrop says: "The English military tribunal, transplanted 1 Winthrop Militatry Law & Prec. 6, 49; 2 Grose Hist. Eng. Army 58, 70; Clode Martial Law 9-11, 83, 158; Hale History of Common Law 42; Hawk P. C., Book 2, Ch. 4; 3 Bl. 68; 2 McArthur 20; Davis Mil. L. 13; 1 Hallam Const. to this country prior to our Revolution, was recognized and adopted by the Continental Congress, in the first American Articles of War of 1775, where the different courts-martial-General, Regimental and detachment or Garrison courts-were distinguished, and their composition and jurisdiction defined. These provisions were modified and enlarged in the succeeding Articles of 1776 and 1786, and in the latter the authority to order general courts was more precisely indicated. Coming to the period of the Constitution-that instrument, while expressly empowering Congress to provide for the government of the army, and thus to institute courts-martial, also recognized-in the Fifth Amendment-the distinction between civil offenses and those cognizable by a military forum. But, in legislating in view of these provisions, Congress did not originally create the courts-martial, but, by the operation of the Act of September 29, 1789, continued it in existence as previously established. Thus, as already indicated, this court is perceived to be in fact older than the Constitution, and therefore older than any court of the United States. instituted or authorized by that instrument. The revised code of articles of war soon after enacted, viz., by the Act of April 10, 1806, repeated the provisions of 1786 in regard to courts-martial, with some slight modifications, consisting mainly in extending the authority to convene general courts and in substituting the President for Congress in the cases in which the latter had previously been vested with final revisory authority. These earlier codes, as also the later articles, have been considered in Chapter II, and are set forth in the Appendix. Between 1806 and 1874, a fourth courts-martial-The Field-Officer's Court, authorized, however, only in time of war-was added to those previously established; the authority to order general courts was still further extended, and their jurisdiction and powers. were enlarged. The legislation by which these changes were introduced has been heretofore indicated as embraced in the code of articles contained in the Revised Statutes of June 22, 1874. The subsequent amendments to these articles and other enactments affecting the same including that of October 1, 1890, adding the Summary Court to the list of military tribunals-have already been specified. The Articles of 1874, with these later provisions, comprise the existing statute law in regard to the constitution, composition, jurisdiction, powers and procedure of American courts-martial. The regulations and usages relating to their forms and practice have been referred to in previous chapters."5 5 Winthrop Military Law & Prec. 50; Reed, Ex parte, 100 U. S. 13; |