upon courts-martial, war. active duty.. Rev. Stat. § 1361." See, in ad"As to the United States Guards dition, Act of March 4, 1915, chap. 143, officers, there can also be no doubt that 38 Stat. at L. 1084; 2d Article of War, the President was fully empowered by S¶ "e;" 16 Ops. Atty. Gen. 292; Re Craig, 2 of the Selective Service Act of May 18, 70 Fed. 969; Ex parte Wildman, Fed. 1917, chap. 15, 40 Stat. at L. 77, Comp. Cas. No. 17,653a. 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 this court by which its exercise has been 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: 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 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 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 ". 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." 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 peace. Nor is it any less difficult to understand why reliance to sustain that proposition is placed on Caldwell v. Parker, 252 U. S. 376, 64 L. ed. 621, 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. 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 a general order giving the power stated to general courts-martial, was not exceeded by certain designated camp commanders. [For other cases, see Courts-martial, I. in Digest Sup. Ct. 1908.] Evidence judicial notice - laws general orders of President. 2. A general order of the President giving to certain designated camp commanders 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 3. A camp commander, in exerting the power which he possesses by virtue of a general order of the President, sanctioned by the 8th Article of War, to convene gen. eral courts-martial, need not refer to such order. 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 As to questions reviewable by habeas the power of the President to summarily corpus-see notes to State v. Jackson, dismiss a military officer, contemplated 1 L.R.A. 373; Bion's Appeal, 11 L.R.A. not a mere cessation of hostilities, but 694; United States v. Hamilton, 1 L. ed. peace in the complete sense, officially pro- U. S. 490; Ex parte Carll, 27 L. ed. U. S. claimed. Indeed, in that case it was 288; Oteiza y Cortes v. Jacobus, 34 L. pointed out that this significance of the ed. U. S. 464; and Pearce v. Texas, 39 words had received the sanction of Con-' L. ed. U. S. 164. [For other cases, see Courts-martial, I. in Sup. Ct. 1908.] Courts-martial lateral attack. - jurisdiction col 4. Courts-martial are tribunals of speNote. On judicial notice, generallysee note to Olive v. State, 4 L.R.A. 33. On habeas corpus in the Federal courts-see notes to Re Reinitz, 4 L.R.A. 236; State ex rel. Cochran v. Winters, 10 L.R.A. 616; and Tinsley v. Anderson, 43 L. ed. U. S. 91. [For other cases, see Courts-martial, II. c, in 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 - 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. jurisdiction Appeal - reversal question not raised below. 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. 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 court-martial. Affirmed. 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. 150, 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. 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. 380, 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, Ann. Cas. 1913E, 940; Ex parte Beck, 245 Fed. 967; Hamilton v. McClaughry, 136 Fed. 448; Ex parte Watkins, 3 Pet. 204, 7 L. ed. 653; 2 Cyc. p. 696. Was the place of confinement properly designated? Manual for Courts-Martial, §§ 400, 401, p. 190; Ops. J. A. G. 1917, p. 26; Ops. J. A. G. 1912, III-B-1, pp. 491, 492; Manual 394, p. 189; Appendices 10, 11. Manual pp. 372, 376; Digest J. A. G. 126, ¶ 2; Davis, Military Law, pp. 537, 538, 551, note; Digest Ops. J. A. G. 1912-1917, 8, 466. Was the case properly referred to the President? Ops. J. A. G. Dec. 8, 1917; Winthrop, Military Law, 1899, 35; Re Bonner, 151 U. S. 257, 258, 38 L. ed. 151-153, 14 Sup. Ct. Rep. 323. Solicitor General Frierson and Mr. R. P. Frierson submitted the cause for appellee: The court-martial having jurisdiction of the person accused and of the offense charged, and having acted within the scope of its lawful powers, its decision and sentence cannot be reviewed or set aside by civil courts by writ of habeas corpus or otherwise. Johnson v. Sayre, 158 U. S. 109, 39 L. ed. 914, 15 Sup. Ct. Rep. 773. A writ of habeas corpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be not merely er. roneous and voidable, but absolutely void. Ex parte Reed, 100 U. S. 13, 25 L. ed. 538. The camp commander was fully authorized by law to appoint the courtmartial. Caha v. United States, 152 U. S. 211, 222, 38 L. ed. 415, 419, 14 Sup. Ct. Rep. 513; United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480; United States v. Symonds, 120 U. S. 46, 30 L. ed. 557, 7 Sup. Ct. Rep. 411. Mr. Chief Justice White delivered the opinion of the court: In his return to a writ of habeas corpus which was allowed on the petition of appellant, averring that he was restrained of his liberty in violation of his constitutional rights, the warden of the penitentiary at Atlanta, asserting the lawfulness of his custody of the petitioner, annexed as part of his return the following documents: (1) A copy of General Orders No. 56, issued by the President on June 13, 1918, conferring upon the commanders of designated camps, among them Camp Sevier, South Carolina, the authority to convene a general court-martial. (2) General Court-martial Orders No. 139, issued by the War Department under date of April 29, 1919, announcing that, under Special Orders No. 172, dated "October 10, 1918, Headquarters, Camp Sevier, South Carolina" (issued by the commanding officer of that camp), a general court-martial had convened at Camp Sevier on October 30, 1918, and before it there was arraigned and tried "Captain William J. Givens, Infantry, United States Army," under the charge of having murdered at or near Camp Sevier a named private soldier; that at the trial. the accused officer had pleaded not guilty, and, although acquitted of the charge of murder, had been found guilty of manslaughter, and had been sentenced to dismissal from the Army and to ten years at hard labor at a place to be designated by the reviewing authority. The order [17] further recited the approval of the sentence by the reviewing authority (the commander at Camp Sevier), and a like approval, with direction that the sentence be executed, made by the President on April 14, 1919, and concluded by anThe penitentiary at Atlanta was prop-nouncing the dismissal of the convicted erly designated by the reviewing au- officer from the Army as of the date of thority, in accordance with the usual April 30, 1919. practice in such cases. The question as to whether September 28, 1919, when the crime was committed, was in a time of peace, is immaterial. Dynes v. Hoover, 20 How. 65, 77, 15 L. ed. 838, 843. The courts take judicial notice of the dates of the commencement and termination of any war in which the country is involved. United States v. Anderson, 9 Wall. 56, 19 L. ed. 615; Sutton v. Tiller, 6 Coldw. 593, 98 Am. Dec. 471; Ogden v. Lund, 11 Tex. 688. United States v. Page, 137 U. S. 673, 689, 34 L. ed. 828, 831, 11 Sup. Ct. Rep. 219; United States v. Fletcher, 148 U. S. 84, 89, 37 L. ed. 378, 380, 13 Sup. Ct. Rep. 552. (3) A telegram from the War Department to the commander at Camp Sevier, announcing the approval of the sentence by the President; the dismissal of the officer from the Army; that the United States penitentiary at Atlanta, Georgia, |