The tribunals in which those who violate the military law are commonly tried (except where urgency demands a more summary method) are termed courts martial. Article 64 of the Articles of War provides:

"The officers and soldiers of any troops, whether militia or others mustered and in pay of the United States, shall at all times and in all places be governed by the Articles of War and shall be subject to be tried by courts martial."

General courts martial consist of any number of officers from five to thirteen, but not of less than thirteen except when to convene that number would be manifestly injurious to the service.8

Commissioned officers are triable only before these general courts martial, and, when it can be avoided, the officers composing the court are not to be inferior in rank to the accused.

For the trial of enlisted men for certain offenses summary courts, composed of one officer, appointed by the commanding officer, are provided.9 There is also provision made for garrison courts martial consisting of three officers for the trial of offenses not capital.

These military tribunals are presided over, as said, by officers detailed for the purpose. No provision is made either for presentment or indictment by jury. The constitutionality of this is expressly provided for by the Fifth Amendment to the Constitution which declares that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." There is no constitutional necessity for a trial jury in courts martial for the reason that these courts are not federal judicial tribunals, and, therefore, no more than territorial courts, are within the application of the Sixth Amendment to the Constitution.

Courts martial are, in fact, agencies of the Executive.

8 Art. 75 of the Articles of War. 9 Art. 79, Articles of War.