The jurisdiction to try and punish for the crime of murder,
committed by a person in the federal military service upon a
civilian while the nation is at war, but in a place within the
jurisdiction of a state where hostilities are not present and where
martial law has not been proclaimed, is not vested exclusively in a
military court-martial by the Articles of War of 1916, and
conviction and sentence of a soldier in such circumstances in the
state court, are not void. So
held where no demand for the
culprit had been made upon the state by the military authorities.
P.
252 U. S.
385.
Affirmed.
Page 252 U. S. 377
The case is stated in the opinion.
Page 252 U. S. 380
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Pending the existence of a state of war with Germany, the
appellant, a soldier in the army of the United States serving in a
camp in Alabama, was tried and convicted for the murder of a
civilian at a place within the jurisdiction of the state and not
within the confines of any camp or place subject to the control of
the civil or military authorities of the United States. The
conviction was reviewed and affirmed by the Supreme Court of
Alabama, and was reexamined and reaffirmed on rehearing.
The case is here to reverse the action of the court below in
refusing on writ of habeas corpus a discharge which was prayed on
the ground that, under the circumstances stated, the sentence was
void because the state court had no jurisdiction whatever over the
subject of the commission of the crime, since, under the
Constitution and laws of the United States, that power was
exclusively vested in a court-martial.
As there was no demand by the military authorities for the
surrender of the accused, what would have been the effect of such a
demand, if made, is not before us. The contention of a total
absence of jurisdiction in the state court is supported in argument
not only by the appellant, but also by the United States in a brief
which it has filed as
amicus curiae. These arguments,
while differing in forms of expression, rest upon the broad
assumption that Congress, in reenacting the Articles of War in
1916, by an exercise of constitutional authority, vested in the
military courts during a state of war exclusive jurisdiction to try
and punish persons in the military service for offenses
Page 252 U. S. 381
committed by them which were violative of the law of the several
states. In other words, the proposition is that, under the Act of
1916, by mere operation of a declaration of war, the states were
completely stripped of authority to try and punish for virtually
all offenses against their laws committed by persons in the
military service. As in both arguments differences between the
provisions of the Act of 1916 and the previous Articles are relied
upon to sustain the accomplishment of the result contended for, we
must briefly consider the prior Articles before we come to test the
correctness of the conclusion sought to be drawn from the Articles
of 1916.
The first Articles of War were adopted in 1775. By them, the
generic power of courts-martial was established as follows:
"L. All crimes, not capital, and all disorders and neglects,
which officers and soldiers may be guilty of, to the prejudice of
good order and military discipline, though not mentioned in the
Articles of War, are to be taken cognizance of by general or
regimental court-martial, according to the nature and degree of the
offense, and be punished at their discretion."
It cannot be disputed that the effect of this grant was to
confer upon courts-martial as to offenses inherently military an
exclusive authority to try and punish. Insofar, however, as acts
which were criminal under the state law but which became subject to
military authority because they could also appropriately be treated
as prejudicial to good order and military discipline, a concurrent
power necessarily arose, although no provision was made in the
Articles regulating its exercise. But this omission was provided
for in Article 1 of § X of the revised Articles adopted in 1776, as
follows:
"Whenever an officer or soldier shall be accused of a capital
crime, or of having used violence, or of having committed any
offense against the persons or property of the good people
Page 252 U. S. 382
of any of the United American states, such as is punishable by
the known laws of the land, the commanding officer and officers of
every regiment, troop, or party to which the person or persons so
accused shall belong are hereby required, upon application duly
made, or in behalf of the party or parties, to use his utmost
endeavors to deliver over such accused person or persons to the
civil magistrate, and likewise to be aiding and assisting to the
officers of justice in apprehending and securing the person or
persons so accused, in order to bring them to a trial. If any
commanding officer or officers shall willfully neglect or shall
refuse, upon the application aforesaid, to deliver over such
accused person or persons to the civil magistrates, or to be aiding
or assisting to the officers of justice in apprehending such person
or persons, the officer or officers so offending shall be
cashiered."
In view of the terms of this Article and the fact that it was
drawn from the British Articles, where the supremacy of the civil
law had long prevailed, it results that its provisions gave the
civil courts, if not supremacy of jurisdiction, at least a primary
power to proceed against military offenders violating the civil
law, although the same acts were concurrently within the
jurisdiction of the military courts because of their tendency to be
prejudicial to good order and military discipline.
And, in harmony with this view the Articles in question were
applied up to 1806, in which year they were reenacted without
change as Articles 99 and 33 of that revision, and were in force in
1863, in the Enrollment Act of which year it was provided (Act of
March 3, 1863, § 30, 12 Stat. 736):
"That, in time of war, insurrection, or rebellion, murder,
assault and battery with an intent to kill, manslaughter, mayhem,
wounding by shooting or stabbing with an intent to commit murder,
robbery, arson, burglary, rape, assault and battery with an intent
to commit
Page 252 U. S. 383
rape, and larceny shall the punishable by the sentence of a
general court-martial or military commission when committed by
persons who are in the military service of the United States and
subject to the Articles of war, and the punishments for such
offenses shall never be less than those inflicted by the laws of
the state, territory, or district in which they may have been
committed."
It is to be observed that, by this section, there was given to
courts-martial, under the conditions mentioned, power to punish for
capital crimes, from which their authority had been from 1775
expressly excluded, and power was also given to deal, under the
conditions stated and in the manner specified, with other
enumerated offenses over which they had not, prior to the passage
of the act, had jurisdiction, presumably because such acts had not
in practice been treated as within the grant of authority to deal
with them as prejudicial to good order and military discipline.
In 1874, when the Articles of War were revised and reenacted
(Rev.Stats. § 1342), the generic grant of power to punish acts
prejudicial to good order and military discipline was reexpressed
in Article 62 substantially as it existed from 1775. The provisions
of § 30 of the Act of 1863,
supra, were in so many words
made to constitute Article 58, and the duty put upon military
officials to surrender to state officers on demand persons in the
military service charged with offenses against the state was
reenacted in Article 59, qualified, however, with the words,
"except in time of war." Thus the Articles stood until they were
reenacted in the revision of 1916 as follows:
The general grant of authority as to acts prejudicial to good
order and military discipline was reenacted in Article 96
substantially as it had obtained from the beginning. The capital
offenses of murder and rape, as enumerated in § 30 of the Act of
1863, were placed in a distinct Article,
Page 252 U. S. 384
and power was given to military courts to prosecute and punish
them as follows:
"Article 92. Murder -- Rape. -- Any person subject to military
law who commits murder or rape shall suffer death or imprisonment
for life, as a court-martial may (be) direct; 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."
39 Stat. 664.
The remaining offenses enumerated in the Act of 1863 were placed
in a separate Article, as follows:
"Art. 93. Various Crimes. -- Any person subject to military law
who commits manslaughter, mayhem, arson, burglary, robbery,
larceny, embezzlement, perjury, assault with intent to commit any
felony, or assault with intent to do bodily harm shall be punished
as a court-martial may direct."
39 Stat. 664.
And, finally, the duty to respond to the demand of the state
authorities for the surrender of military offenders against the
state criminal laws was reenacted as it had prevailed from the
beginning, subject, however, to express regulations to govern in
case of conflict between state and federal authority, and again
subject to the qualification, "except in time of war," as first
expressed in the revision of 1874, the Article being as
follows:
"Art. 74. Delivery of Offenders to Civil Authorities. -- When
any person subject to military law, except one who is held by the
military authorities to answer, or who is awaiting trial or result
of trial, or who is undergoing sentence for a crime or offense
punishable under these Articles, is accused of a crime of offense
committed within the geographical limits of the states of the Union
and the District of Columbia and punishable by the laws of the
land, the commanding officer is required, except in time of war,
upon application duly made, to use his utmost endeavor to deliver
over such accused person to the civil
Page 252 U. S. 385
authorities, or to aid the officers of justice in apprehending
and securing him, in order that he may be brought to trial. Any
commanding officer who, upon such application, refuses or willfully
neglects, except in time of war, to deliver over such accused
persons to the civil authorities or to aid the officers of justice
in apprehending and securing him shall be dismissed from the
service or suffer such other punishment as a court-martial may
direct."
39 Stat. 662.
Comprehensively considering these provisions, it is apparent
that they contain no direct and clear expression of a purpose on
the part of Congress, conceding for the sake of the argument that
authority existed under the Constitution to do so, to bring about,
as the mere result of a declaration of war, the complete
destruction of state authority and the extraordinary extension of
military power upon which the argument rests. This alone might be
sufficient to dispose of the subject for, as said in
Coleman v.
Tennessee, 97 U. S. 509,
97 U. S.
514:
"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 such intention should be ascribed
to Congress in the absence of clear and direct language to that
effect."
Certainly it cannot be assumed that the mere existence of a
state of war begot of necessity the military power asserted, since
the Articles of War, originally adopted in 1775 were, as we have
seen, in the very midst of the War for Independence, modified in
1776 to make certain the preservation of the civil power.
But the contention relied upon is directly based upon the words,
"except in time of war," as qualifying the duty of the military
officers to respond to the demand by state authority for the
surrender of military offenders against the state criminal laws,
imposed by Article 74, and the grant in Article 92, expressed in
the form of a negative pregnant, of authority to courts-martial to
try capital
Page 252 U. S. 386
crimes when committed by an officer or soldier within the
geographical limits of the United States and the District Columbia
in time of war. Both these provisions took their origin in the Act
of 1863, and were drawn from the terms of that act as reexpressed
in the revision of 1874. By its very terms, however, the Act of
1863 was wholly foreign to the destruction of state and the
enlargement of military power here relied upon. It is true, indeed,
that, by the act, authority was for the first time given, as
pointed out in the
Coleman case,
97 U.
S. 508,
97 U. S. 514,
to courts-martial or military commissions to deal with capital and
other serious crimes punishable under the state law. But the act
did not purport to increase the general powers of courts-martial by
defining new crimes, or by bringing enumerated offenses within the
category of military crimes as defined from the beginning, as we
have already pointed out, but simply contemplated endowing the
military authorities with power not to supplant, but to enforce,
the state law. As observed by Winthrop in his work on Military Law,
2d ed., p. 1033, it was intended to provide, through the military
authorities, means of enforcing and punishing crimes against the
state law committed by persons in the military service where, as
the result of the existence of martial law or of military
operations, the courts of the state were not open, and military
power was therefore needed to enforce the state law. And it was
doubtless this purpose indicated by the text, to which we have
already called attention, which caused the Court in the
Coleman case, to say that that statute had no application
to territory where "the civil courts were open and in the
undisturbed exercise of their jurisdiction." (P.
97 U. S.
515.)
As in 1866, it was settled in
Ex parte
Milligan, 4 Wall. 2, 18 [argument of counsel --
omitted], in the absence of some occasion for the declaration of
martial law or conditions consequent on military operations, gave
no power to the military authorities where the civil courts were
open and capable of performing
Page 252 U. S. 387
their duties, to disregard their authority or frustrate the
exercise by them of their normal and legitimate jurisdiction, it is
indeed open to grave doubt whether it was the purpose of Congress,
by the words "except in time of war" or the cognate words which
were used with reference to the jurisdiction conferred in capital
cases, to do more than to recognize the right of the military
authorities, in time of war, within the areas affected by military
operations or where martial law was controlling, or where civil
authority was either totally suspended or obstructed, to deal with
the crimes specified -- a doubt which, if solved against the
assumption of general military power, would demonstrate not only
the jurisdiction of the state courts in this case, but the entire
absence of jurisdiction in the military tribunals. And this doubt
becomes additionally serious when the revision of 1874 is
considered, since, in that revision, the Act of 1863 was in terms
reenacted and the words "except in time of war," appearing for the
first time in Article 59 of that revision, could have been alone
intended to qualify the time of war with which the act dealt --
that is, a condition resulting from a state of war which prevented
or interfered with the discharge of their duties by the civil
courts.
Into the investigation of the subject of whether it was intended
by the provision "except in time of war," contained in the Articles
of 1916, to do more than meet the conditions exacted by the actual
exigencies of war like those contemplated by the Act of 1863, and
which were within the purview of military authority, as pointed out
in
In Re Milligan, we do not feel called upon to enter. We
say this because, even though it be conceded that the purpose of
Congress by the Articles of 1916, departing from everything which
had gone before, was to give to military courts, as the mere result
of a state of war, the power to punish as military offenses the
crimes specified when committed by those in the military service,
such admission is
Page 252 U. S. 388
here negligible because, in that view, the regulations relied
upon would do no more than extend the military authority, because
of the state of war, to the punishment, as military crimes, of acts
criminal under the state law, without the slightest indication of
purpose to exclude the jurisdiction of state courts to deal with
such acts as offenses against the state law.
And this conclusion harmonizes with the principles of
interpretation applied to the Articles of War previous to 1916.
Drury v. Lewis, 200 U. S. 1;
Grafton v. United States, 206 U.
S. 333;
Franklin v. United States, 216 U.
S. 559; 6 Ops.Atty.Gen. 413, and is, moreover, in accord
with the decided cases which have considered the contention of
exclusive power in the military courts as resulting from the
Articles of 1916 which we have here considered.
People v.
Denman, 179 Cal. 497;
Funk v. State, 208 S.W. 509;
United States v. Hirsch, 254 F. 109.
It follows, therefore, that the contention as to the enlargement
of military power as the mere result of a state of war and the
consequent complete destruction of state authority are without
merit, and that the court was right in so deciding, and hence its
judgment must be and it is
Affirmed.