propounding such questions, and offering such suggestions in relation to the proceedings, and presenting such comments on the testimony, when the same shall be concluded (under the approbation of the court) as they might deem necessary." The court after mature consideration, decided that the application could not be granted. Ives, Military Law, 126, citing Trial by J. F. Cooper, 8, 9; DeHart, Military Law, 318.

$595. Recalling Witnesses.-After the case is finished and the court closed, it may, if it deem it necessary, recall any witness for the purpose of explaining discrepancies, or clearing up doubts in the minds of the members. In such cases the accused should always be present. The accused may himself be recalled for explaining points of his statement not clear. Ives, Military Law, 149.

§ 596. Evidence of the Record on Appeal.-Whenever the sentence of any court-martial shall be appealed from, which appeal shall always be made within twenty days after the decision appealed from is made known in published orders, such court, or the president thereof, shall forthwith furnish the officer, to whom such appeal is taken, with a statement of the case, and of the evidence touching the same.

This statement comprises simply a transcript of the record of the proceedings in the case of the appellant. King, Guide for Regimental Courts-martial, § 38 (1889).

If there is any evidence before a court-martial establishing the facts alleged, or if that court arrived at a conclusion that such facts existed upon a conflict of evidence even where the appellate court might upon the same evidence arrive at a different conclusion, the established practice would prevent a review of the decision.

But, on the other hand, if there is no legal evidence whatever that the matters contained in such specification are true, the courtmartial did not have jurisdiction or power to render its judgment. People v. Townsend, 10 Abb. N. C. 169.

So, where it is shown that the court-martial has jurisdiction of the subject-matter and of the person of the accused, and evidence was introduced to support its finding, its conclusions, cannot be reviewed by a writ of certiorari. People v. Townsend, supra; People v. New York County Jail Warden, 100 N. Y. 20; People v. Rand, 41 Hun, 529.

§ 597. Partial Review of Miscellaneous Authorities.In Re Bogart, 2 Sawy. 397, the United States circuit court held that the military court has jurisdiction to try military offenses; that a former conviction, and the statute of limitations, were matters of defense, which must be investigated and determined in the exercise of jurisdiction, and not matters upon which the jurisdiction to hear and determine the charge depends; that these matters cannot be inquired into on habeas corpus; that the civil courts have no jurisdiction to review the action of the military courts, acting within their jurisdiction, and still less, to anticipate, and intercept the latter in the exercise of their lawful jurisdiction. This question was again examined and the decision affirmed, Re White, 9 Sawy. 49, 17 Fed. Rep. 723, Mr. Justice Field, and the circuit judge concurring. These decisions were approved, and followed by Mr. Circuit Judge Wallace, in Re Davison, 21 Fed. Rep. 618, reversing the district court on that point. The jurisdiction to try offenses committed in the naval or military service, unobstructed by the civil courts, was recognized in Ex parte Reed, 100 U. S. 13, 25 L. ed. 538, and Re Bogart, approvingly cited. That the civil courts cannot interfere with courts-martial in the exercise of their legitimate jurisdiction, was held by the Supreme Court in Wales v. Whitney, 114 U. S. 564, 570, 29 L. ed. 277, 278. And in Smith v. Whitney, 116 U. S. 177, 29 L. ed. 604, the Supreme Court says, "this court has repeatedly recognized the general rule, that the acts of a courtmartial within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts by writ of prohibition, or otherwise," and again, with numerous other cases cites both in Re Bogart and Re White, supra, thereby recognizing those cases as properly laying down and applying the law.

A court of inquiry is, strictly speaking, not a court at all, but is a council, board or assembly of persons directed by a commanding officer to make inquiry and to collect evidence with respect to some doubtful or intricate subject into which he cannot conveniently inquire himself. It has no judicial power, and cannot give an opinion on the merits of the case inquired into, unless especially ordered to do so. The proceedings of a court of inquiry may be admitted as evidence by a court-martial in cases not capital, nor extending to the dismissal of an officer; provided, that the circumstances are such that oral testimony cannot be obtained. It is

propable however, that they would not be admitted in evidence in a civil court. Am. & Eng. Enc. Law, title Military Law.

Martial or military law, says Tytler, does not, in any respect, either supersede or interfere with the civil and municipal laws of the realm. Hence it appears that soldiers are, equally with all other classes of citizens, bound to the same strict observance of the laws of the country and the fulfillment of all their social duties, and are alike amenable to the ordinary civil and criminal courts of the country for all offenses against those laws and breach of those duties. Tytler, Military Law, 153.

A former acquittal or conviction of an act by a civil court, says Benet, is not a good plea in bar before a court-martial on charges and specifications covering the same. Benet, Courts-martial, 115.

Officers and soldiers of the army who do acts criminal both by the military and municipal law, are, under certain conditions and limitations, subject to be tried by the civil authorities in preference to the military; but the conviction or acquittal of the party by the civil authorities will not discharge the officer or soldier from responsibility for the military offense involved in the same facts. Steiner's Case, 6 Ops. Atty. Gen. 413.

No sentence of a court martial inflicting the punishment of death shall be carried into execution until it shall have been confirmed by the President, except in the enumerated cases of persons, including murderers convicted in time of war; but the same article provides that in such excepted cases the sentence of death may be carried into execution, upon confirmation by the commanding general in the field, or the commander of the department, as the case may be.

The military forces of the state are organized in pursuance of the provisions of the Constitution of the United States and of the several states for the defense of the country and the maintenance of public order. The citizen soldier will remember that it is upon him, when the civil power has failed, that the state relies for the vindication of its laws and institutions, imperiled from whatever cause; and that in becoming the soldier, he has lost none of the characteristics or duties of the citizen, but has assumed, simply, such further obligations as imperatively demanded of him a conduct which shall inspire the confidence and respect of the people. See General Regulations for the Military Forces of the State of New York, p. 3.

The judgment of a military court, or a court-martial, if competent and constitutional, may likewise establish res adjudicata. But ordinarily an offense against a state is not barred by the action of a Federal court-martial, nor is a court-martial barred by a state prosecution for the same offense in its state aspects. Where, however, a court-martial has, by law, exclusive jurisdiction to try an offense, then its judgments is a bar to the proceedings of other tribunals. Whart. Crim. Ev. § 576, citing Whart. Crim. Pl. & Pr. § 439; Dynes v. Hoover, 61 U. S. 20 How. 65, 15 L. ed. 838; Wooley v. United States, 20 Law Rep. 631; United States v. Reiter (La.) 4 Am. L. Reg. N. S. 534; State v. Rankin, 4 Coldw. 145; United States v. Cashiel, 1 Hughes, 552; Coleman v. Tennessee, 97 U. S. 509, 24 L. ed. 1118.

CHAPTER LXVI.

INTERSTATE RENDITION AND INTERNATIONAL EXTRADITION.

§ 598. Term Extradition Defined.

599. New York Legislative Enactments Regarding.
600. Evidence under United States Revised Statutes.
601. Comments upon the Constitutional Provisions.
602. What Justifies the Issuance of the Warrant.
603. Rights of Parties Proceeded Against.
604. Conduct of Proceedings.

605. Evidence by Deposition.

606. Hearing on Application for.

607. Accused must be Tried for the Offense for which he was Extradited.

a. Distinction in Cases of Interstate Rendition.

608. Fugitive may be Surrendered for any Offense.

609. Evidence as Affected by Treaty Stipulations with Foreign States.

610. What Evidence will Authorize an Arrest.

611. What the Affidavits should Disclose.

612. Evidence in Habeas Corpus Proceedings.

598. The Term Extradition Defined.-It has been said that extradition is "the act of sending, by authority of law, a person accused of crime to a foreign jurisdiction where it was committed, in order that he may be tried there." Merlin, Jurisprudence, h. t.

The government of the United States is bound by some treaty stipulations to surrender criminals who take refuge within the country, but independently of such conventions, it is questionable whether criminals can be surrendered. 1 Kent, Com. 36; Re Washburn, 4 Johns. Ch. 106; 1 Am. Jur. 297; Com. v. Deacon, 10 Serg. & R. 125; 22 Am. Jur. 330; Story, Conf. L. 520; Wheat. International Law, 111; 1 Bouvier, Law Dict. 350.

Public policy, the security of society, and the regular and perfect dispensation of justice, as well as the established maxims of statutory construction, alike require that the term "crime" should be held to comprehend every violation of law which is of an indictable nature.