Page:Federal Reporter, 1st Series, Volume 7.djvu/326

 314 FEDERAL REPORTER. �redress, is settled by the decision of the supreme court of the �United Btates in Dyhes v. Hoover, 20 How. 82, in these words : �"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 pun- ishment.forbidden by the law, though its sentence shall be approved by the ofHcers having a revisory power over it, civil courts may, on an action by a party aggrieved, inquire into the want of the court'a iurisdiction, and give him redress." �It is quite clear that this court has no authority to issue the writ of habeas cm-pus to bring up the body of a person conivieted and sentenced by a court of competent jurisdiction; but it is equally clear that it has jurisdiction to grant the •writ, and discharge the prisoner, if it appears that an infe- rior court has transcended its powers. The true line of dis- tinction between the two classes of cases will appear by reference tb the following authorities : Ex parte Kearney, 7 Wheat. 38; Ex parte Lange, 18 Wall. 163, and cases cited; jgx parte Parfo, 18 Wall. 18. �To say that in this case the court-martial had jurisdiction of the prisoner at the time the crime was committed, and therefore retained jurisdiction for the purpose of trying him after his term of enlistment expired, is only to state the main argument in support of the legality of the sentence : it is not to raise a question as to the jurisdiction of this court. I am, therefore, clearly of the opinion that this court has full pow- ers to inquire into the jurisdiction of the court-martial, of whose judgment the prisoner complains. �2. That the prisoner was a soldier of the United States army at the time he committed the offenee, and that he was lawfully arrested and imprisoned by military authority, and remained lawfully in the custody of the military from Sep- tember 6, 1878, to February 1, 1879, is admitted. But it is insisted that on the last-named day he ceased to be a soldier, by the expiration of his five-years' term of enlistment, and became a citizen, and therefore entitled to a trial by jury. Congress, under its powers to make rules for the governriieut of the army and navy, has power to provide for the trial by courts-martial of "cases arising in the land or naval forces. " Pifth amendment of the Constitution. The case of the pris- ��� �