THE DECISIONS OF THE Supreme Court of the United States AT OCTOBER TERM, 1920. ALEXANDER KAHN et al., Appts., V. AUGUST V. ANDERSON, Warden of the (See S. C. Reporter's ed. 1-10.) Courts-martial he did by special regulation organizing the judicial review executive discretion as to number of 4. Military prisoners confined in a officers composing court. 1. The exercise of discretion as to fix-vious court-martial sentences are subject United States military prison under preing the number of officers, with reference to the condition of the service, who shall compose a court-martial, within the maximum and minimum limits fixed by the 5th Article of War, is executive, and not subject to judicial review. [For other cases, see Courts-martial, II. c, tired officers. composition - re 2. Retired Army officers are officers in the military service of the United States within the meaning of the provision in the 4th Article of War, governing the composition of courts-martial, and an order assigning such officers to the court was within the authority conferred upon the Secretary of War by the Act of April 23, 1904, to assign retired officers of the Army, with their consent, to active duty on courtsmartial. [For other cases, see Courts-martial, I. in 7. Peace in the complete legal sense, officially proclaimed, is what is meant by Note. As to civil and criminal rethe phrase "in time of peace" in the prosponsibility of soldiers and militiamen-vision of the 92d Article of War that no see note to Franks v. Smith, L.R.A. person shall be tried by court-martial for 1915A, 1141. murder or rape committed within the geo Argued December 7 and 8. 1920. Decided January 31, 1921. APPEAL from the District Court of the United States for the District of Kansas to review a decree denying relief by habeas corpus to persons imprisoned under sentence of a courtmartial. Affirmed. The facts are stated in the opinion. Mr. Martin J. O'Donnell argued the cause, and, with Mr. Isaac B. Kimbrell, filed a brief for appellants: Notwithstanding Congress by express constitutional provision has the power to prescribe rules for the government and regulation of the Army, those rules must be interpreted in connection with the provision that the trial of all crimes except in cases of impeachment shall be by jury, and that in all criminal prosecutions the accused shall enjoy the right to a trial by jury, and that no person shall be deprived of life or liberty without due process of law. The former provision must not be interpreted so as to nullify the latter provisions. Grafton v. United States, 206 U. S 333, 51 L. ed. 1084, 27 Sup. Ct. Rep. 749. 11 Ann. Cas. 640, note; Ex parte Henderson, Fed. Cas. No. 6,349; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 TT. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106; United States v. Carpenter, vol. 2, Davis, Rise & Fall of Confederate Government, p. 348; Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281. The provisions of the Constitution of the United States concerning jury trial refer to the right to trial by jury as it was enjoyed by Englishmen in England at common law. The common law knew no distinction between citizen and soldier. The provision of the 5th Amendment permitting the accusation of persons in the land and naval forces by methods other than by presentment or indictment of a grand jury involves a matter of procedure rather than of substantial right. That provision did not operate to deprive a citizen conscripted into the Army of his right to a trial by a jury (after having been accused) such as a soldier or citizen was entitled to at common law. Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 276, 15 L. ed. 372, 374; United States v. Reid, 12 How. 361, 363, 13 L. ed. 1023, 1024; Murray v. Chicago & N. W. R. Co. 62 Fed. 27; Chisholm v. Georgia, 2 Dall. 419, 435, 1 L. ed. 440, 447; Twining v. New Jersey, 211 U. S. 78, 100, 102, 53 L. ed. 97, Wilson, 127 U. S. 540, 549, 32 L. ed. 223, 106, 107, 29 Sup. Ct. Rep. 14; Callan v. 226, 8 Sup. Ct. Rep. 1301; Capital Trac tion Co. v. Hof, 174 U. S. 1, 6, 43 L. ed. 873, 875, 19 Sup. Ct. Rep. 580; Schick v. United States, 195 U. S. 65, 69, 49 L. ed. 99, 102, 24 Sup. Ct. Rep. 826, 1 Ann. Cas. 585; Tennessee v. Davis, 100 U. S. 257, 25 L. ed. 648; 3 Co. Inst. pp. 52, 335, 336; 2 Co. Inst. pp. 46, 48, 50; 7 Enc. Britannica, p. 348; 1 Bl. Com. pp. 418, 421; 3 Macaulay, History of England, pp. 30, 34; Coleman v. Tennessee, 97 U. S. 509, 24 L. ed. 1118; Caldwell v. Parker, 252 U. S. 376, 64 L. ed. 621, 40 Sup. Ct. Rep. 388; Knote's Case, 10 Ct. Cl. 397, affirmed in 95 U. S. 149, 24 L. ed. 442; 6 Brewer's Orations, p. 2154; Thompson v. Utah, 170 U. S. 355, 42 L. ed. 1068, 18 Sup. Ct. Rep. 620; American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 545, 7 L. ed. 256; McAllister v. United States, 141 U. S. 180, 35 L. ed. 695, 11 Sup. Ct. Rep. 949; Ex parte Henderson, Fed. Cas. No. 6,349; Strafford's Trial, 3 How. St. Tr. 1382; Lancaster's Case, 1 How. St. Tr. 39; Gompers v. United States, 233 U. S. 604, 610, 58 L. ed. 1115, 1119, 34 Sup. Ct. Rep. 693, Ann. Cas. 1915D, 1044; 4 Co. Inst. 332; 1 Bl. Com. p. 416. It is always safe to read the letter of he Constitution in the spirit of the Declaration of Independence. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; McKinster v. Sager, 163 Ind. 671, 68 L.R.A. 273, 106 Am. St. Rep. 268, 72 N. E. 854; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 762, 28 L. ed. 588, 4 Sup. Ct. Rep. 652; American Federation of Labor v. Buck's Stove & Range Co. 33 App. D. C. 83, 32 L.R.A.(N.S.) 748; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; People ex rel. Tyroler v. Warden, 157 N. Y.. 116, 43 L.R.A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006. The citations from the manual of courts-martial and the War Department bulletins do not aid the court. Broom, Legal Maxims, 8th ed. p. 133; Bacon, Maxims, Reg. 2; Barnardiston v. Soame, 6 How. St. Tr. 1094. The exception of cases arising in the land and naval forces from the provision concerning the mode of accusation was a recognition that otherwise such, Kansas, and within the geographical cases were not excepted by the provi- limits of the states of the Union and the sion giving Congress power to make District of Columbia, and hence it was rules (in such cases) for regulating and a time of peace within the meaning of governing the forces from the rule of the 92d Article of War. law applicable to every other citizen. Gibbons v. Ogden, 9 Wheat. 186, 6 L. ed. 68; Brown v. Maryland, 12 Wheat. 438, 6 L. ed. 685; Rhode Island v. Massachusetts, 12 Pet. 722, 9 L. ed. 1259; Cohen v. Virginia, 6 Wheat. 378, 5 L. ed. 284; Bend v. Hoyt, 13 Pet. 271, 10 L. ed. 158. In the solution of constitutional questions the same rules of interpretation and sources of judicial information may be resorted to as in the construction of statutes and other instruments granting power (Adams v. Storey, 1 Paine, 79, Fed. Cas. No. 66; Rhode Island v. Massachusetts, 12 Pet. 722, 9 L. ed. 1259). The rule that an exception will not be written into a statute when it would have been easy for the lawmaking power to say so (Baltimore & P. R. Co. v. Grant, 98 U. S. 398, 25 L. ed. 231; Union Nat. Bank v. Matthews, 98 U. S. 627, 25 L. ed. 190; United States v. Koch, 5 L.R.A. 130, 40 Fed. 252; Re Drake, 114 Fed. 232; Austin v. United States, 155 U. S. 432, 39 L. ed. 212, 15 Sup. Ct. Rep. 167) applies to the construction of a constitutional provision. The express recognition in the first articles of War adopted by the Continental Congress, of the right of a soldier charged with a capital crime, during time of war, to a trial by jury, and the executive, legislative, and judicial recognition of that right during all the wars in which this country was engaged until 1863, was merely a recognition of the right in that respect enjoyed by soldiers at common law, and demonstrates that the Constitution itself expressly preserves a soldier's right to be tried by a jury when charged with a capital crime, and that Congress, under the guise of making rules for the government and regulation of the land forces, can never take it away. Caldwell v. Parker, 251 U. S. 376, 64 L. ed. 621, 40 Sup. Ct. Rep. 388; Motes v. United States, 178 U. S. 458, 44 L. ed. 1150, 20 Sup. Ct. Rep. 993. The words, "but no person shall be tried by court-martial for murder or rape committed within the geographical limits of the states of the Union and the District of Columbia in time of peace," prohibited courts-martial from trying petitioners, for the reason that, on the 29th day of July, 1918, the courts were open in the state and district of Ex parte Milligan, 4 Wall. 128, 18 L. ed. 298; Prize Cases, 2 Black, 635, 666, 17 L. ed. 459, 476; 3 Co. Litt. chap. 7, 412, p. 249, as quoted in Wheaton, Int. Law, p. 525; Endlich, Interpretation of Statutes, § 3; Kepner v. United States, 195 U. S. 124, 49 L. ed. 122, 24 Sup. Ct. Rep. 797, 1 Ann. Cas. 655; The Abbots| ford, 98 U. S. 440, 25 L. ed. 168. The law recognizes a distinction between domestic and foreign war, and the question as to whether or not a state or time of war existed in so far as personal rights are involved is to be determined by the records and judges of the courts of justice, and not by the records, officers, or acts of any other department of the government. Gilbert, Tenures, p. 35; 3 Co. Inst. 39-41; 1 Co. Inst. 281, 282; The Parkhill, Fed. Cas. No. 10,755a; Ex parte Mikell, 253 Fed. 817. With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no intention to take from them the jurisdiction which they had always exercised with respect to soldiers and citizens should be ascribed to Congress in the absence of clear and direct language to that effect; hence the prohibition denying jurisdiction to courts-martial to try soldiers for murder or rape in time of peace prevents such courts from trying such persons except at a time when martial law is in force and applicable alike to soldier and citizen. Coleman v. Tennessee, 97 U. S. 509, 514, 24 L. ed. 1118, 1121; Ex parte Milligan, 4 Wall. 127, 18 L. ed. 297; Griffin v. Wilcox, 21 Ind. 370; Hale History of Common Law, Runnington's ed. London, 1829, pp. 42, 43; Caldwell v. Parker, 252 U. S. 376, 64 L. ed. 621, 40 Sup. Ct. Rep. 388. The armistice the Allied Powers and Germany of November 11, 1918, ended the war with Germany as a fact, and also ended the power, existence, and jurisdiction of a tribunal which was called into being only by the actual existence of a state of actual war. The 92d Article of War in the nature of things must be transposed to read, "No person shall be tried (in time of peace) by court-martial for murder," etc. As the trial did not end until two weeks after the war ended, the sentence could not be promulgated by a moribund tribunal. Re Egan, 5 Blatchf, Fed. Cas. No. 4,393; Prize Cases, 2 Black, 635, 17 L. ed. 459; Ford v. Surget, 97 U. S. 594, 24 L. ed. 1018. The jurisdiction of a court-martial must affirmatively appear on the face of the record; and in the absence of such affirmative showing its judgment is a nullity. Deming v. McClaughry, 51 C. C. A. 349, 113 Fed. 639; Runkle v. United States, 122 U. S. 543, 546, 30 L. ed. 1167, 1168, 7 Sup. Ct. Rep. 1141; Grignon v. Astor, 2 How. 319, 11 L. ed. 283; Galpin v. Page, 18 Wall. 350, 21 L. ed. 959; 11 Cyc. p. 696. The recital in the order detailing the court was not operative to deprive the appellants of their right to have a courtmartial of not less than thirteen. Williamson's Case, 1 Ops. Atty. Gen. 296, 297. Petitioners were not in or members of the Army of the United States on July 29, 1918; hence they could not be tried for a civil crime by a courtmartial. Their original sentences discharged them. Mr. W. C. Herron argued the cause, and, with Solicitor General Frierson, filed a brief for appellee: The decision of the officer appointing the court, as to the number which can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. Martin v. Mott, 12 Wheat. 19, 34, 35, 6 L. ed. 537, 542; Mullan v. United States, 140 U. S. 240, 245, 35 L. ed. 489, 492, 11 Sup. Ct. Rep. 788; Swain v. United States, 165 U. S. 553, 559, 560, 41 L. ed. 823, 825, 17 Sup. Ct. Rep. 448. Retired officers are in the military service of the government. United States v. Tyler, 105 U. S. 244, · 26 L. ed. 985. An objection, not going to the jurisdiction of the court-martial, but to the manner of its exercise of an undoubted jurisdiction, cannot be made on habeas corpus. Smith v. Whiting, 116 U. S. 167, 176, 177, 29 L. ed. 601, 603, 604, 6 Sup. Ct. Rep. 570. A person who has changed his status as a soldier only to become a military prisoner can, under the powers over the land and naval forces conferred on Congress by the Constitution, be still left subject to court-martial jurisdiction. United States v. Sweet, 189 U. S. 471, 47 L. ed. 907, 23 Sup. Ct. Rep. 638; Williams v. United States, 137 U. S. 113, 34 L. ed. 590, 11 Sup. Ct. Rep. 43; End- Ex parte Wildman, Fed. Cas. 17,653a; lich, Interpretation of Statutes, $$ 86, Re Craig, 70 Fed. 969; Carter v. Me90; United States v. Wiltberger, 5 Claughry, 183 U. S. 365, 383, 46 L. ed. Wheat. 96, 5 L. ed. 42; 24 Ops. Atty. 236, 246, 22 Sup. Ct. Rep. 181; Coleman Gen. 569, 570; 16 Ops. Atty. Gen. 16; Dig. J. A. G. 1912, p. 1010; Davis, Mili-1118; Smith v. Whitney, 116 U. S. 167, v. Tennessee, 97 U. S. 509, 24 L. ed. tary Law, 54; United States v. Murphy, 183-186, 29 L. ed. 601, 606, 607, 6 Sup. 9 Fed. 26; Waters v. Campbell, 4 Sawy. Ct. Rep. 570; Ex parte Gerlach, 247 121, Fed. Cas. No. 17,265; Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, Fed. 616; Ex parte Falls, 251 Fed. 415; 13 Sup. Ct. Rep. 224; Brown v. United Hines v. Mikell, 170 C. C. A. 28, 259 States, L.R.A.1917A, 1133, 147 C. C. A. Fed. 28, certiorari denied in 250 U. S. 289, 233 Fed. 353; Com. v. Green, 17 645, 63 L. ed. 1187, 39 Sup. Ct. Rep. Mass. 547; State v. Grant, 79 Mo. 113, 494. 49 Am. Rep. 218. There can be no doubt that the phrase Penal statutes must be construed "in time of peace" must be construed to strictly. mean the absence, generally, of a state of war to which the United States is a party. United States v. Wiltberger, 5 Wheat. 96, 5 L. ed. 42; United States v. Lacher, 134 U. S. 624, 33 L. ed. 1080, 10 Sup. Ct. Rep. 625; United States V. 1,1501 Pounds of Celluloid, 27 C. C. A. 231, 54 U. S. App. 273, 82 Fed. 634; Ferrett v. Atwill, 1 Blatchf. 151, Fed. Cas. No. 4,747. Courts-martial are courts of inferior and limited jurisdiction. No presumptions in favor of their exercise of jurisdiction are indulged. Hamilton v. McClaughry, 136 Fed. 445. Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106; McElrath v. United States, 102 U. S. 426, 438, 26 L. ed. 189, 192. Numerous authorities, from the time of the Constitution (and before), have sustained the jurisdiction of military and naval tribunals over soldiers and sailors. Many cases have dealt with and sustained jurisdiction over offenses which could likewise have been dealt | leged illegality in the constitution [6] with by the civil courts. Ex parte Reed, 100 U. S. 13, 25 L. ed. 538; Smith v. Whitney, 116 U. S. 167, 29 L. ed. 601, 6 Sup. Ct. Rep. 570; John- | son v. Sayre, 158 U. S. 109, 39 L. ed. 914, 15 Sup. Ct. Rep. 773; Swain v. United States, 165 U. S. 553, 41 L. ed. 823, 17 Sup. Ct. Rep. 448; Carter v. McClaughry, 183 U. S. 365, 46 L. ed. 236, 22 Sup. Ct. Rep. 181; Grafton v. United States, 206 Ú. S. 333, 51 L. ed. 1084, 27 Sup. Ct. Rep. 749, 11 Ann. Cas. 640; Franklin v. United States, 216 U. S. 559, 566, 567, 54 L. ed. 615, 617, 618, 30 Sup. Ct. Rep. 434; United States v. Clark, 31 Fed. 710; Re Stubbs, 133 Fed. 1012; United States v. Hirsch, 254 Fed. 109; McKinley v. United States, 249 U. S. 397, 63 L. ed. 668, 39 Sup. Ct. Rep. 324; 1 Kent, Com. p. 341, note a; Coleman v. Tennessee, 97 U. S. 509, 514, 24 L. ed. 1118, 1121; Ex parte Mason, 105 U. S. 696, 699, 700, 26 L. ed. 1213-1215. Mr. Chief Justice White delivered the opinion of the court: The petition for habeas corpus filed by the appellants on June 11, 1920, to obtain their release from confinement in the United States Disciplinary Barracks at Leavenworth, having, on motion of the United States, been dismissed on the face of the petition and documents annexed, the appeal which is now before us was prosecuted. We are therefore only concerned with the issues which legitimately arise from that situation. It was charged in the petition that, on November 4, 1918, the petitioners were placed on trial before a general courtmartial for violation of the 96th Article of War, in having conspired to murder a named fellow prisoner, and of the 92d Article, in having committed the murder, and that, at the time of the alleged commission of the crimes stated, they were undergoing imprisonment in the barracks in question under sentences which had been imposed upon them by courts-martial for military offenses. It was averred that the legality of the organization of the court and its jurisdiction were at once challenged, and, on the challenge being overruled, each of the petitioners was, on November 25, 1918, found guilty of the murder charged, and as the result of the action of the President in mitigating and approving the sentences, they were each liable for a long term of imprisonment. The release which was prayed was based upon the following grounds: (1) Al of the court; (2) an assertion that the petitioners did not possess the military status essential to cause them to be subject to the court's jurisdiction; (3) that their subjection, even if they possessed such military status, to be tried by courtmartial, deprived them of asserted constitutional rights; and (4) that in no event had the court-martial power to try them for murder under the conditions existing at the time of the trial. We come to consider whether the court erred in overruling these contentions. The 5th Article of War exacts that in any event a court-martial shall be composed of not less than five officers, and must be composed of thirteen when that number can be convened without manifest injury to the service. The court in this case was composed of eight members, the order certifying that more than that number could not be convened without manifest injury to the service. The argument is that because the court was composed of less than thirteen officers, it was unlawfully constituted. But it has long been settled that the exercise of discretion as to fixing the number of the court with reference to the condition of the service, within the minimum and maximum limits, is executive, and not subject to judicial review. Martin v. Mott, 12 Wheat. 19, 34, 35, 6 L. ed. 537, 542, 543; Bishop v. United States, 197 U. S. 334, 340, 49 L. ed. 780, 783, 25 Sup. Ct. Rep. 440. The objection is therefore without merit. Of the eight members of the court, two were described in the order as retired officers and three as officers of the United States Guards. The contention is that, as by the 4th Article of War one must be an officer in the military service of the United States to be competent to sit on a court-martial, and as retired officers and officers of the United States Guards are not within that requirement, the constitution of the court was void. But both contentions, we are of opinion, are untenable; as to the retired officers, because it is not open to question, in view of the ruling in United States v. Tyler, 105 U. S. 244, 26 L. ed. 985, that such [7] officers are officers in the military service of the United States, and because it is equally certain that the order assigning the retired officers to the court was within the authority conferred by the Act of April 23, 1904, chap. 1485, 33 Stat. at L. 264, Comp. Stat. § 2078, 9 Fed. Stat. Anno. 2d ed. p. 1183, which provides that: "The Secretary of War may assign retired officers of the Army, with their consent, to |