1. Under the 5th Article of War, which provides that a
court-martial shall be composed of not less than five officers and
must be composed of thirteen when so many may be convened without
manifest injury to the service, the fixing of the number within
those limits with reference to the condition of the service is an
act of executive discretion not subject to judicial review. P.
255 U. S. 6.
2. Retired officers and officers of the United States Guards
held competent under the 4th Article of War to sit on a
court-martial as officers "in the military service of the United
States," the former in virtue of their status as retired officers
and because the Act of April 23, 1904, authorized their assignment
by the Secretary of War, the latter by § 2 of the Selective Service
Act of May 18, 1917, and regulations of the President thereunder.
Id.
3. A person held as a military prisoner in punishment for a
military offense of which he has been convicted is subject to
military law and to trial by court-martial for offenses committed
during such
Page 255 U. S. 2
imprisonment even if the prior sentence resulted in his
discharge as a soldier. P.
255
U. S. 7.
4. This application of the military power is consistent with the
Fifth Amendment. P.
255 U. S. 8.
5. Nor is the trial of such prisoners by court-martial at
variance with the constitutional guarantees as to jury trial and
presentment or indictment by grand jury.
Id.
6. In providing 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,"
the 92d Article of the Articles of War (1916) contemplates a
complete peace, officially proclaimed. P.
255 U. S. 9.
7. Such a peace was not brought about by the armistice and the
cessation of hostilities in the War with Germany and Austria.
Id.
Affirmed.
The case is stated in the opinion.
Page 255 U. S. 5
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 court-martial 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 was
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) alleged illegality in the constitution
Page 255 U. S. 6
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 court-martial,
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,
25 U. S. 34-35;
Bishop v. United States, 197 U. S. 334,
197 U. S. 340.
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, that such
Page 255 U. S. 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, c. 1485, 33 Stat. 264,
which provides that: "The Secretary of War may assign retired
officers of the Army, with their consent, to active duty . . . upon
courts-martial. . . ."
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, c. 15, 40 Stat. 77, 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, were a part
of the Army of the United States, and that these officers were
therefore competent to be assigned to court-martial duty.
As we have seen, the pleadings disclose that the alleged crimes
were charged to have been committed by the accused while they were
confined in a United States military prison undergoing punishment
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 complained of, military prisoners undergoing punishment
for previous sentences, we are of opinion that, even if their
discharge as soldiers had resulted from the previous sentences
which they were serving, it would be here immaterial, since, as
they remained military prisoners, they were for that reason subject
to military law and trial by court-martial for offenses committed
during such imprisonment.
Page 255 U. S. 8
Thus, in dealing with that question in
Carter v.
McClaughry, 183 U. S. 365,
183 U. S. 383,
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 court-martial under the rules and
articles of war. Rev.Stats. § 1361."
See in addition Act of March 3, 1915, c. 143, 38 Stat.
1084; 2d Article of War, par. "e"; 16 Op.Attys.Gen. 292;
In re
Craig, 70 F. 969;
Ex parte Wildman, Fed.Cas. No.
17,653a.
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 Fifth
Amendment, we deem it unnecessary to notice the question
further.
In connection with this subject, we observe that a further
contention that, conceding the accused to have been subject to
military law, they could not be tried by a military court because
Congress was without power to so provide consistently with the
guaranties as to jury trial and presentment or indictment by grand
jury, respectively secured by Article I, § 8, [Art. III, § 2,] of
the Constitution, and Article V [and Art. VI] 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
Page 255 U. S. 9
obvious more than forty years ago as to lead the Court to say in
Ex parte Reed, 100 U. S. 13,
100 U. S.
21:
"The constitutionality of the acts of Congress touching army and
navy courts-martial in this country, if there could ever have been
a doubt about it, is no longer an open question in this Court.
Const. Art. I, § 8, and Amendment V. In
Dynes v.
Hoover, 20 How. 65, the subject was fully
considered and their validity affirmed."
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 Co.,
251 U. S. 146. 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, 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)
Page 255 U. S. 10
of the rulings in
Ex parte
Milligan, 4 Wall. 2;
Coleman v. Tennessee,
97 U. S. 509;
Ex parte Mason, 105 U. S. 696, and
Caldwell v. Parker, 252 U. S. 376; (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 (Articles 92 and
93), and its retention in the article dealing with the duty of the
military to deliver to the state authorities (Article 74), and (4)
of the placing in a separate article (Article 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,
102 U. S. 438,
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 Congress, and had been made the basis
for the adjustment of controversies depending upon the time when
peace was established.
Affirmed.