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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 U. 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

active duty

Rev. Stat. § 1361." See, in addition, Act of March 4, 1915, chap. 143, 38 Stat. at L. 1084; 2d Article of War, ¶ "e;" 16 Ops. Atty. Gen. 292; Re Craig, 70 Fed. 969; Ex parte Wildman, Fed. Cas. No. 17,653a.

upon courts-martial, war. "As to the United States Guards officers, there can also be no doubt that the President was fully empowered by § 2 of the Selective Service Act of May 18, 1917, chap. 15, 40 Stat. at L. 77, Comp. Stat. § 2044b, 9 Fed. Stat. Anno. 2d ed. p. 1156, to exert the power which he did by Special Regulations No. 101, organizing the military force known as the United States Guards, and that such force, under the express terms of § 1 of the same act, was a part of the Army of the United States, and that these officers were therefore competent to be assigned to court-martial duty.

And as the authorities just referred to and the principles upon which they rest adequately demonstrate the unsubstantial character of the contention that to give effect to the power thus long established and recognized would be repugnant to the 5th Amendment, we deem it unnecessary to notice the question further.

presentment or indictment by grand jury, respectively secured by art. 1, § 8, of the Constitution, and art. 5 of the Amendments, is also without foundation, since it directly denies the existence of a power in Congress exerted from the beginning, and disregards the numerous decisions of

In connection with this subject we observe that a further contention that, conAs we have seen, the pleadings dis- ceding the accused to have been subject to close that the alleged crimes were charged military law, they could not be tried by to have been committed by the accused a military court because Congress was while they were confined in a United without power to so provide consistently States military prison, undergoing punish- with the guaranties as to jury trial and ment inflicted upon them, and upon this it is contended that, either by implications resulting from the length of the sentences previously imposed and which were being suffered, or by assumption that there was a provision in the sentences to that effect, it resulted that the accused, by the convictions and sentences, ceased this court by which its exercise has been to be soldiers, and were no longer subject to military law. But, as the allegations of the petition and the contention based upon them concede that the petitioners were, at the time of the trial and sentence "The constitutionality of the acts of complained of, military prisoners under- Congress touching Army and Navy courtsgoing punishment for previous sentences, martial in this country, if there could ever we are of opinion that, even if their dis- have been a doubt about it, is no longer charge as soldiers had resulted from the an open question in this court. Const. previous sentences which they were serv- art. 1, § 8, and Amendment 5. In Dynes ing, it would be here immaterial, since,│v. Hoover, 20 How. 65, 15 L. ed. 838, as they remained military prisoners, they | the subject was fully considered and their were for that reason subject to military validity affirmed." law and trial by court-martial for offenses committed during such imprisonment. [8] Thus, in dealing with that question, in Carter v. MeClaughry, 183 U. S. 365, 383, 46 L. ed. 236, 246, 22 Sup. Ct. Rep. 181, it was said:

"The accused was proceeded against as an officer of the Army, and jurisdiction attached in respect of him as such, which included not only the power to hear and determine the case, but the power to execute and enforce the sentence of the law. Having been sentenced, his status was that of a military prisoner held by the authority of the United States as an offender against its laws.

"He was a military prisoner though he had ceased to be a soldier, and for offenses committed during his confinement he was liable to trial and punishment by courtmartial under the rules and articles of

sustained,-a situation which was so [9] obvious more than forty years ago as to lead the court to say in Ex parte Reed, 100 U. S. 13, 21, 25 L. ed. 538:

This brings us to the final contention, that because, when the trial occurred, it was time of peace, no jurisdiction existed to try for murder, as article 92 provided that ". . . 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." That complete peace, in the legal sense, had not come to pass by the effect of the Armistice and the cessation of hostilities, is not disputable. Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106. It is therefore difficult to appreciate the reasoning upon which it is insisted that although the government of the United States was officially at war, nevertheless, so far as the regulation and control by it of its Army is concerned, it was at

Affirmed.

[11] WILLIAM J. GIVENS, Appt.,

peace. Nor is it any less difficult to gress, and had been made the basis for understand why reliance to sustain that the adjustment of controversies dependproposition is placed on is placed on Caldwell v. ing upon the time when peace was estabParker, 252 U. S. 376, 64 L. ed. 621, lished. 40 Sup. Ct. Rep. 388, since that case involved no question of the want of jurisdiction of a court-martial over a crime committed by a soldier, but solely whether the jurisdiction which it was conceded such a court possessed was intended to be exclusive of a concurrent power in the state court to punish the same act, as the mere result of a declaration of war, and without reference to any interruption, by a condition of war, of the power of the civil courts to perform their duty; and, moreover, in that case the question here raised was expressly reserved from decision.

Coming now to consider that question in the light (1) [10] of the rulings in Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281; Coleman v. Tennessee, 97 U. S. 509, 24 L. ed. 1118; Ex parte Mason, 105 U. S. 696, 26 L. ed. 1213; and Caldwell v. Parker, supra; (2) of the differences between the articles of 1874 and those of 1916, showing a purpose to rearrange the jurisdiction of courts-martial; (3) of the omission of the qualification, "except in time of war," from the clauses of the latter articles conferring jurisdiction as to designated offenses, including those capital (arts. 92 and 93), and its retention in the article dealing with the duty of the military to deliver to the state authorities (art. 74); and (4) of the placing in a separate article (art. 92) of the provision conferring jurisdiction as to murder and rape, and qualifying that jurisdiction by the words, "in time of peace," not used in the previous articles, we are of opinion that that qualification signifies peace in the complete sense, officially declared. The fact that the articles of 1916 in other respects make manifest the legislative purpose to give effect to the previous articles as interpreted by the decided cases to which we have referred, at once convincingly suggests that a like reason controlled in adopting the limitation, "except in time of peace," contained in article 92. See McElrath v. United States, 102 U. S. 426, 438, 26 L. ed. 189, 191, where it was expressly decided that the limitation, "except in time of peace," on the power of the President to summarily dismiss a military officer, contemplated not a mere cessation of hostilities, but peace in the complete sense, officially proclaimed. Indeed, in that case it was pointed out that this significance of the words had received the sanction of Con

V.

FRED G. ZERBST, Warden of the United
States Penitentiary at Atlanta, Georgia.

(See S. C. Reporter's ed. 11-22.) General court-martial

President

authority of empowering camp com

mander to convene.

1. The authority of the President, under the 8th Article of War, to empower "the commanding officer of any district or of any force or body of troops" to appoint general courts-martial, was not exceeded by a general order giving the power stated to certain designated camp commanders. [For other cases, see Courts-martial, I. in Digest Sup. Ct. 1908.] judicial notice laws Evidence general orders of President.

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giving to certain designated camp com-
2. A general order of the President
manders the power to appoint general
courts-martial, being authorized by the 8th
Article of War, is a part of the law of the
land which the Federal courts judicially
notice without averment or proof.
[For other cases, see Evidence, I. b, in Digest
General courts-martial
by camp commander
general order of President.

Digest Sup. Ct. 1908.]

appointment reference to

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cial and limited jurisdiction, whose judg-, Habeas corpus
ments, so far as questions relating to their |
jurisdiction is concerned, are always open
to collateral attack.

[For other cases, see Courts-martial, II. c, in
Digest Sup. Ct. 1908.]
Courts-martial
lateral attack.

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jurisdiction

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col

5. The right of courts-martial to have exerted their jurisdiction, when called in question by collateral attack, will be held not to have existed unless it appears that the grounds which were necessary to justify the exertion of the assailed authority existed at the time of its exertion, and therefore were, or should have been, a part of the record.

[For other cases, see Courts-martial, II. c, in
Digest Sup. Ct. 1908.]
Habeas corpus
collateral attack on
judgment of court-martial — evidence
outside record - military status of
accused.

6. Evidence that the accused, at the time of his trial and conviction for murder before a general court-martial, had a military status, is admissible on habeas corpus where, except for the form of the charge, the court-martial record failed to establish that the accused belonged to the Army, but did establish on its face the power to convene the court-martial, so that the authority of that court to decide the particular subject before it is undoubted.

[For other cases, see Habeas Corpus, IV. in Digest Sup. Ct. 1908.]

Appeal

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- judgment - affirmance.

7. A judgment denying relief by habeas corpus to a person imprisoned under sentence of a court-martial will not be dis

turbed on appeal on the theory that the

accused was not shown to have had a mili

tary status, where the documentary evidence admitted by the court below to establish such status either is not in the record, because of the form of the præcipe of the appellant, thus depriving the appellate court of the means of examining the conclusion of the court below in that respect, or, if in the record, though not referred to in the præcipe, abundantly sustains the conclusions which the court below based upon it, and therefore makes clear the existence at the time of the trial of a military status in the accused adequate to sustain the juris

diction of the court-martial.

[For other cases, see Appeal and Error, IX.
e, in Digest Sup. Ct. 1908.]
Courts-martial

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jurisdiction

reviewing judgment jurisdiction

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of court-martial
error in designating place of con-
finement.

9. Error, if any, in the designation of
the place for carrying out the sentence of
a court-martial, did not involve the juris-
diction of that court so as to require relief
by habeas corpus, but could only lead to
retaining the accused for a new designation
[For other cases, see Habeas Corpus, II. £;
of place of confinement.
Courts-martial, II. c, in Digest Sup. Ct.
1908.]
Appeal
below.

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reversal

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10. The denial of relief by habeas corpus to a person imprisoned under sentence of a court-martial will not be disturbed on appeal on suggestions based upon the supposed duty, on the trial before the courtmartial, to negative every possible condition the existence of which might have prevented that court from trying the case, including the possibility that the officer under trial might have belonged to a command which did not come within the power to call a court-martial conferred upon the convening officer, particularly where the suggestion made in this regard seems to have been an afterthought, and not to have been called to the attention of the court below.

[For other cases, see Appeal and Error, VIII. m, 1; VIII. j, 1, in Digest Sup. Ct. 1908.]

[No. 285.]

Argued and submitted October 13, 1920.
Decided January 31, 1921.

APPEAL from the District Court of

the United States for the Northern

District of Georgia to review a decree
denying relief by habeas corpus to a
person imprisoned under sentence of a
Affirmed.
court-martial.

See same case below, 262 Fed. 702.
The facts are stated in the opinion.

Mr. John S. Strahorn argued the cause, and, with Mr. Robert R. Carman, filed a brief for appellant:

The civil courts, when appealed to in actions like the present, have uniformly held the military tribunals to a strict exercise of their functions.

Ex parte Yerger, 8 Wall. 95, 19 L. ed. 335; Davis, Military Law, 1915, 42, 139; mur-McClaughry v. Deming, 186 U. S. 63, 46 L. ed. 1055, 22 Sup. Ct. Rep. 786, 51 C. C. A. 349, 113 Fed. 651; Manual for Courts-Martial, 1917, 17, 19, §§ 32, 33; Ex parte Watkins, 3 Pet. 209, 7 L. ed. 655; Hamilton v. McClaughry, 136 Fed. 447; Dynes v. Hoover, 20 How. 65, 81, 15 L. ed. 838, 844; Runkle v. United States, 122 U. S. 543, 30 L. ed. 1167, 7 Sup. Ct. Rep. 1141; Godwin v. State, 1 Boyce, 175, 74 Atl. 1101, Ann. Cas. 1913E, 940; Davis, Military Law, 1915,

8. Peace in the complete legal sense, officially proclaimed, is what is meant by the phrase "in time of peace" in the provision of the 92d Article of War that 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.

[For other cases, see Courts-martial, II. a, in Digest Sup. Ct. 1908.]

96; Re Grimley, 38 Fed. 85; Brooks v. Adams, 11 Pick. 442; Davis, Military Law. 96, 97; Kempe v. Kennedy, 5 Cranch, 184, 185, 3 L. ed. 73, 74.

A court-martial is the creature of statute; and, as a body or tribunal, it must be convened and constituted in en tire conformity with the provisions of the statute, or else it is without jurisdiction.

McClaughry v. Deming, 186 U. S. 62, 46 L. ed. 1055, 22 Sup. Ct. Rep. 786.

To give effect to its sentences it must appear affirmatively and unequivocally that the court was legally constituted.

McClaughry v. Deming, 186 U. S. 63, 46 L. ed. 1055, 22 Sup. Ct. Rep. 786; Ex parte Watkins, 3 Pet. 204, 7 L. ed. 653.

Courts-martial are vested with extra ordinary powers, and, because of their unusual jurisdiction, are held to a strict exercise of their functions. Nothing is presumed in their favor, everything must affirmatively appear. Their rights are purely statutory, in direct deroga tion of man's common-law rights and, being so, they must be, and are, strictly construed, and this is but simple justice. Davis, Military Law, 96, 139; Dynes v. Hoover, 20 How. 81, 15 L. ed. 844; Re Grimley, 137 U. S. 159, 34 L. ed. 637, 11 Sup. Ct. Rep. 54; Grignon v. Astor, 2 How. 319, 11 L. ed. 283; Galpin v. Page, 18 Wall. 350, 21 L. ed. 959; 11 Cyc. 696; Manual for Courts-Martial, pp. 137, 138; Wood v. North Western Ins. Co. 46 N. Y. 421; State v. Main, 69 Conn. 123, 36 L.R.A. 623, 61 Am. St. Rep. 30, 37 Atl. 80; Manual for CourtsMartial, 18, § 33; McClaughry v. Deming, 186 U. S. 63, 46 L. ed. 1055, 22 Sup. Ct. Rep. 786; Brooks v. Adams, 1 Pick. 442; Runkle v. United States, 122 U. S. 556, 30 L. ed. 1170, 7 Sup. Ct. Rep. 1141; Davis, Military Law, 42, 139.

The declaration must state expressly the fact on which jurisdiction depends. McClaughry v. Deming, 186 U. S. 63, 46 L. ed. 1055, 22 Sup. Ct. Rep. 786; Runkle v. United States, 122 U. S. 555, 556, 30 L. ed. 1170, 1171, 7 Sup. Ct. Rep. 1141.

Jurisdiction cannot be conferred on such a court by agreement, nor by the failure of the accused to raise the question by a plea in bar of trial.

Davis, Military Law, 96, 97. Where there is no law authorizing the court-martial, or where the statutory conditions as to the constitution or jurisdiction of the court are not observed, there is no tribunal authorized by law to render the judgment.

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McClaughry v. Deming, 186 U. S. 65, 46 L. ed. 1056, 22 Sup. Ct. Rep. 786; Swaim v. United States, 165 U. S. 555, 41 L. ed. 823, 17 Sup. Ct. Rep. 548; Keyes v. United States, 109 U. S. 336, 27 L. ed. 954, 3 Sup. Ct. Rep. 202; Ex parte Watkins, 3 Pet. 204, 7 L. ed. 653.

If the facts essential to a valid exercise of the military power conferred by the 58th Article of War (A. W. 92, new Code) are not shown, the writ must go, and the petitioner be granted his liberty. Hamilton v. McClaughry, 136 Fed. 447.

Until and unless it appears affirmatively that the accused took the oath of allegiance (or at least that the courtmartial formally found that he was in the service), he was not, in so far as this case is concerned, a soldier; and, if not (shown to be) a soldier, he was not amenable to military law. Re Grimley, 137 U. S. 152-157, 34 L. ed. 638-640, 11 Sup. Ct. Rep. 54; Davis, Military Law, 99, 349; Carter v. McClaughry, 183 U. S. 389, 46 L. ed. 236, 22 Sup. Ct. Rep. 181; Ex parte Watkins, 3 Pet. 204, 7 L. ed. 653; Hamilton v. McClaughry, 136 Fed. 448; Grignon v. Astor, 2 How. 319, 11 L. ed. 283; Ex parte Beck, 245 Fed. 967; McClaughry v. Deming, 186 U. S. 65, 46 L. ed. 1056, 22 Sup. Ct. Rep. 786; Davis, Military Law, 99, 249, note; Re Grimley, 38 Fed. 85.

The court-martial was without jurisdiction because it was a time of peace in the United States when the crime was committed.

Coleman v. Tennessee, 97 U. S. 513, 514, 24 L. ed. 1121; Davis, Military Law, p. 456; Dow v. Johnson, 100 U. S. 169, 25 L. ed. 636; Ex parte Milligan, 4 Wall. 128, 18 L. ed. 298; Winthrop, Military Law, 1899, 277; Winthrop, Military Law, 3d ed. pp. 1032, 1033, 1038, 1039; Caldwell v. Parker, 252 U. S. 376, 64 L. ed. 621, 40 Sup. Ct. Rep. 388; 2 Winthrop, Military Law, 2d ed. p. 1033.

If there was a time of war when and where this crime was committed, how does it appear in the record? The pleadings are silent on the subject. Since it is not alleged, could the court judicially notice that there was a state of war?

Wood v. Northwestern Ins. Co. 46 N. Y. 421; State v. Main, 69 Conn. 123, 36 L.R.A. 623, 61 Am. St. Rep. 30, 37 Atl. 80; Brown v. Keene, 8 Pet. 112, 8 L. ed. 885; McClaughry v. Deming, 186 U. S. 65, 46 L. ed. 1056, 22 Sup. Ct. Rep. 786; Brooks v. Adams, 11 Pick. 442; Godwin v. State, 1 Boyce, 173, 74 Atl. 1101,

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