The opinion of the court (Huston, J. dissenting on the first point,) was delivered by
Gibson, C. J.— It is conceded, that if the court martial had jurisdiction, the defendant was justifiable in causing its sentence to be executed. That it was legally constituted, and had jurisdiction of the offence, is not disputed. But it is alleged, that the plaintiff was not de jure, a member of the company; consequently, that the court had not jurisdiction of his person; and hence, it is inferred, that the *203sentence is void, and the defendant a trespasser. This inference is not supported by authority, and it is certainly against reason. In Vanderheyden v. Young, 11 Johns. Rep. 150, pleading guilty was held to be such an admission of jurisdiction, both of the person and of the offence, as to conclude the party in a subsequent proceeding. Consent cannot give jurisdiction of the offence; but'I incline to think, that such an admission would protect the court and its officer, on the maxim, quod volenti non fit injuria. That decision is, however, clear and indisputable law, as regards jurisdiction of the person. ■ A right of individual exemption may be waived; and where it is found against the party, he stands precisely as if it had not been asserted. It will not be pretended, that an attorney who had ineffectually pleaded his privilege, would, by subsequently establishing it, entitle himself, in England, to treat the sheriff as a trespasser; or, that a militiaman could maintain trespass against the members of a court martial for having erroneously decided, that he had not attained the age at which military duty ceases, when the offence was committed. If personal exemption could be urged any where but before the court martial itself, no one concerned in the execution of the sentence, would ever be safe. The members would proceed at their peril, although the fact of exemption, might, as in the case before us, be extremely doubtful on the evidence. A plea to the jurisdiction, is a plea in abatement; but a defence, that the accused was not a member of the corps, and not liable to military duty in it, is not in abatement, like the plea of privilege, which alleges jurisdiction elsewhere, but in bar. It goes to the root of the charge, the military character of the accused being the foundation of the prosecution, and a fact, without proof of which, the offence cannot be made out. As, then, the fact of soldiership is one on which, where it is denied, every court martial must pass, it would be intolerably severe to require the members to decide it at the peril of becoming trespassers in case the accused should be able to make out the facts of his defence, by more satisfactory evidence subsequently; and this, although they may have been compelled to decide a question of great difficulty, and have acted with the most perfect good faith: and it would still be more severe to implicate the officer who should execute the process, which ordinarily furnishes a sufficient justification, if no irregularity, or want of jurisdiction, appear on the face of it. No danger is to be apprehended that courts martial will arbitrarily assume jurisdiction of those who are notoriously not subject to military law. An act of such glaring injustice would be evidence of mala fides, and such a gross abuse of authority, as, on the principle of the Six Carpenters’ Case, to make the members trespassers ab initio. But where a court martial has, bona fide, convicted a person not subject to military duty, of an offence within its jurisdiction,neither the members who composed it, nor an officer - who has executed its sentence, can be made to respond in damages.
As to the remaining point, the English rule of taxation in cases *204like the present, is to give single, half single, and quarter single costs. How a practice, so anomalous came to be established, I know not. It seerns to rest entirely on the table of costs in principio, of which we know nothing, here, but the name. Even the English courts evince, of late, something like dissatisfaction at it, and seem to be restrained from abolishing it, only by respect for its antiquity.* It has not been adopted here, and its inconsistency with the manifest intent of the legislature, is a decisive objection to it. It is to be observed, however, that the fees of the officers are not to be trebled, where they are not regularly and usually payable by the defendant; and, with this exception, he is entitled to treble the amount of such costs as he is entitled to charge in his bill.
Judgment affirmed.
See Staniland v. Ludlam, 4 Barnw. & Cres. 889, S. C. 10 Eng. Com. L. Rep. 465, and. Milner v. M‘Clean, 2 Carnig & Paine, 17, S. C. 12 Com-L. Rep. 6.