A leading case fixing the constitutional status of courts martial is Dynes v. Hoover,10 decided in 1858. This was an action of trespass and false imprisonment brought by the plaintiff, lately a seaman in the United States navy. The defendant pleaded that the imprisonment was by the authority of a naval general court martial convened under an act of Congress. The plaintiff demurred to the plea on the ground that the court martial had been without jurisdiction. Justice Wayne, delivering the opinion of the Supreme Court, after referring to the various constitutional provisions, said:

"These provisions show that Congress has the power to provide for the trial and punishment of military and naval offenses in the manner then and now practiced by civilized nations, and that the power is given without any connection between it and the third article of the Constitution defining the judicial power of the United States, indeed, that the powers are entirely independent of each other. . . . With the sentences of courts martial which have been convened regularly, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the Rules and Articles of War, irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrate or civil courts. But we repeat if a court martial has no jurisdiction over the subject-matter of the charge it has been convened to try, or shall inflict a punishment forbidden by the law, though its sentence shall be approved by the officers having a revisory power of it, civil courts may, on an action of a party aggrieved by it, inquire into the want of the court's jurisdiction, and give him redress."

10 20 How. 65; 15 L. ed. 838.

From this decision it appears that, when acting within their jurisdiction, both as to the parties and to the subject-matter, courts martial are not subject to the jury provision of the Constitution, which apply only to the federal judiciary proper, nor are their decisions subject to review by the civil courts. In assuming jurisdiction, however, they, in a sense, act at their peril, for this question may be examined into by the civil courts, and if no jurisdiction is found, all acts committed by them are trespasses, punishment and damages for which the civil courts will award and the executive officers enforce.

In Tarble's case,11 decided in 1872, was examined the right of a state court by writ of habeas corpus to inquire whether an individual was a member of the United States army and navy and, therefore, subject, as such, to federal military law. The court deny this right, and assert that this was a question exclusively for the federal civil courts to determine.12

11 13 Wall. 397; 20 L. ed. 597.

12 "The important question is presented by this case, whether a state court commissioner has jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers into the military service of the United States, and discharge them from such service when, in his judgment, their enlistment has not been made in conformity with the laws of the United States. The question presented may be more generally stated thus: whether any judicial officer of a State has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the discharge of a person held under the authority, or claim and color of the authority, of the United States, by an officer of that Government. For it is evident if such jurisdiction may be exercised by any judicial officer of a State, it may be exercised by the Court Commissioner within the county for which he is appointed; and if it may be exercised with reference to soldiers detained in the military service of the United States, whose enlistment is alleged to have bees illegally made, it may be exercised with reference to any other department of the public service when their illegal detention is asserted. It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of the authority is affirmed. The jurisdiction, if it exist at all, can only be limited in its application by the legislative power of the State. It may even reach the parties imprisoned under sentence of the National Courts, after regular indictment, trial and conviction, for offenses against the laws of the United States. As we read the opinion of the Supreme Court of Wisconsin in this case, this is the claim of authority asserted by that tribunal for itself and for the judi-