Article 92 of the Articles of War 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."
Petitioner was convicted by a court-martial of the crime of
conspiracy to commit murder, the offense having occurred in
California on June 10, 1949 -- after actual termination of
hostilities in 1945, but before termination of the wars with
Germany and Japan had been proclaimed by the President or the
Congress.
Held: the offense was committed "in time of peace"
within the meaning of Article 92, and the court-martial had no
jurisdiction. Pp.
358 U. S.
229-236.
(a) The term "in time of peace" must be construed in the light
of the precise facts of each case and the impact of the particular
statute involved, and it may have different meanings in different
contexts.
Kahn v. Anderson, 255 U. S.
1, and other cases, distinguished. Pp.
358 U. S.
230-232.
(b) In view of the attitude of a free society toward the
jurisdiction of military tribunals and our reluctance to give them
authority to try people for non-military offenses, any grant to
them of power to try people for capital offenses should be
construed strictly. Pp.
358 U. S.
232-236.
(c) It cannot be readily assumed that Congress used the term "in
time of peace" in Article 92 to deprive soldiers or civilians of
the safeguards guaranteed in civil courts in capital cases,
including the benefit of jury trials, four years after all
hostilities had ceased. P.
358 U. S. 236.
248 F.2d 783 reversed.
Page 358 U. S. 229
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Article of War 92, 10 U.S.C. (1946 ed., Supp. IV) § 1564, which,
prior to the adoption of the Uniform Code of Military Justice,
[
Footnote 1] governed trials
for murder or rape before courts-martial, [
Footnote 2] contained a proviso
"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 question for decision concerns the meaning of the words "in
time of peace" in the context of Article 92.
Petitioner, while serving with the United States Army in France,
was convicted by a court-martial, dishonorably discharged, and
sentenced to prison for 20 years. He was serving that sentence in
the custody of the Army at Camp Cooke, California, when he was
convicted by a court-martial of the crime of conspiracy to commit
murder. This offense occurred on June 10, 1949, at Camp Cooke. The
question is whether June 10, 1949, was "in time of peace" as the
term was used in the 92d Article. The question was raised by a
petition for a writ of habeas corpus challenging the jurisdiction
of the court-martial. Both the District Court (148 F.Supp. 23) and
the Court of
Page 358 U. S. 230
Appeals (248 F.2d 783) ruled against petitioner. We granted
certiorari, 356 U.S. 911.
The Germans surrendered on May 8, 1945 (59 Stat. 1857), the
Japanese on September 2, 1945 (59 Stat. 1733). The President, on
December 31, 1946, proclaimed the cessation of hostilities, adding
that "a state of war still exists." 61 Stat. 1048. In 1947, Senate
Joint Resolution 123 was passed (61 Stat. 449) which terminated,
inter alia, several provisions of the Articles of War,
[
Footnote 3] but did not
mention Article 92. The war with Germany terminated October 19,
1951, by a Joint Resolution of Congress (65 Stat. 451) and a
Presidential Proclamation (66 Stat. c3). And on April 28, 1952, the
formal declaration of peace and termination of war with Japan was
proclaimed by the President (66 Stat. c31), that being the
effective date of the Japanese Peace Treaty. Since June 10, 1949 --
the critical date involved here -- preceded these latter dates,
and, since no previous action by the political branches of our
Government had specifically lifted Article 92 from the "state of
war" category, it is argued that we were not then "in time of
peace" for the purposes of Article 92. That argument gains support
from a dictum in
Kahn v. Anderson, 255 U. S.
1,
255 U. S. 9-10,
that the term "in time of peace," as used in Article 92, "signifies
peace in the complete sense, officially declared." Of like tenor
are generalized statements that the termination of a "state of war"
is "a political act" of the other branches of Government, not the
Judiciary.
See Ludecke v. Watkins, 335 U.
S. 160,
335 U. S. 169.
We do not think that either of those authorities is dispositive of
the present controversy. A more particularized and discriminating
analysis must be made. We deal with a term that must be construed
in light of the precise facts
Page 358 U. S. 231
of each case and the impact of the particular statute involved.
Congress, in drafting laws, may decide that the Nation may be "at
war" for one purpose and "at peace" for another. It may use the
same words broadly in one context, narrowly in another. The problem
of judicial interpretation is to determine whether, "in the sense
of this law," peace had arrived.
United
States v. Anderson, 9 Wall. 56,
76 U. S. 69. Only
mischief can result if those terms are given one meaning regardless
of the statutory context.
In the
Kahn case, the offense was committed on July 29,
1918, and the trial started November 4, 1918 -- both dates being
before the Armistice. [
Footnote
4] It is therefore clear that the offense was not committed "in
time of peace." Moreover, a military tribunal whose jurisdiction
over a case attaches in a time of actual was does not lose
jurisdiction because hostilities cease. Once a military court
acquires jurisdiction, that jurisdiction continues until the end of
the trial and the imposition of the sentence.
See Carter v.
McClaughry, 183 U. S. 365,
183 U. S. 383.
The broad comments of the Court in the
Kahn case on the
meaning of the term "in time of peace" as used in Article 92 were
therefore quite unnecessary for the decision.
Ludecke v. Watkins, 335 U. S. 160,
belongs in a special category of cases dealing with the power of
the Executive or the Congress to deal with the aftermath of
problems which a state of war brings and which a cessation of
hostilities does not necessarily dispel. That case concerns the
power of the President to remove an alien enemy after hostilities
have ended, but before the political branches have declared the
state of war ended.
Hamilton v. Kentucky Distilleries &
Warehouse Co., 251 U. S. 146,
involves the constitutionality under the war power of a prohibition
law
Page 358 U. S. 232
passed in 1918, 40 Stat. 1045, after the armistice with Germany
was signed and to be operative
"until the conclusion of the present war and thereafter until
the termination of demobilization, the date of which shall be
determined and proclaimed by the President of the United
States."
Woods v. Cloyd W. Miller Co., 333 U.
S. 138, concerns the constitutionality of control of
housing rentals promulgated after hostilities were ended and before
peace was formally declared. These cases deal with the reach of the
war power as a source of regulatory authority over national
affairs, in the aftermath of hostilities. The earlier case of
McElrath v. United States, 102 U.
S. 426, is likewise irrelevant to our problem. It was a
suit for back pay by an officer the outcome of which turned on a
statute which allowed dismissal of an officer from the service "in
time of peace" only by court-martial. The President had made the
dismissal, and the Court held that such action, being before August
20, 1866, when the Presidential Proclamation announced the end of
the rebellion and the existence of peace, was lawful, since there
was extrinsic evidence that Congress did not intend the statute to
be effective until the date of the Proclamation.
Our problem is not controlled by those cases. We deal with the
term "in time of peace" in the setting of a grant of power to
military tribunals to try people for capital offenses. Did Congress
design a broad or a narrow grant of authority? Is the authority of
a court-martial to try a soldier for a civil crime, such as murder
or rape, to be generously or strictly construed?
Cf. Duncan v.
Kahanamoku, 327 U. S. 304.
We do not write on a clean slate. The attitude of a free society
toward the jurisdiction of military tribunals -- our reluctance to
give them authority to try people for nonmilitary offenses -- has a
long history.
We reviewed both British and American history touching on this
point in
Reid v. Covert, 354 U. S. 1,
354 U. S.
23-30.
Page 358 U. S. 233
We pointed out the great alarms sounded when James II authorized
the trial of soldiers for nonmilitary crimes, and the American
protests that mounted when British courts-martial impinged on the
domain of civil courts in this country. The views of Blackstone on
military jurisdiction became deeply imbedded in our thinking:
"The necessity of order and discipline in an army is the only
thing which can give it countenance, and therefore it ought not to
be permitted in time of peace, when the king's courts are open for
all persons to receive justice according to the laws of the
land."
1 Blackstone's Commentaries 413.
And see Hale, History
and Analysis of the Common Law of England (1st ed. 1713), 40-41. We
spoke in that tradition in
Toth v. Quarles, 350 U. S.
11,
350 U. S.
22,
"Free countries of the world have tried to restrict military
tribunals to the narrowest jurisdiction deemed absolutely essential
to maintaining discipline among troops in active service."
The power to try soldiers for the capital crimes of murder and
rape was long withheld. Not until 1863 was authority granted. 12
Stat. 736. And then it was restricted to times of "war,
insurrection, or rebellion." [
Footnote 5] The theory was that the civil courts, being
open, were wholly qualified to handle these cases. As Col. William
Winthrop wrote in Military Law and Precedents (2d ed. 1920) 667,
about this 1863 law:
"Its main object evidently was to provide for the punishment of
these crimes in localities where, in consequence of military
occupation, or the prevalence
Page 358 U. S. 234
of martial law, the action of the civil courts is suspended, or
their authority can not be exercised with the promptitude and
efficiency required by the exigencies of the period and the
necessities of military government."
Civil courts were, indeed, thought to be better qualified than
military tribunals to try nonmilitary offenses. They have a more
deeply engrained judicial attitude, a more thorough indoctrination
in the procedural safeguards necessary for a fair trial. Moreover,
important constitutional guarantees come into play once the citizen
-- whether soldier or civilian -- is charged with a capital crime
such as murder or rape. The most significant of these is the right
to trial by jury, one of the most important safeguards against
tyranny which our law has designed. [
Footnote 6] We must assume that the Congress, as well
as
Page 358 U. S. 235
the courts, was alive to the importance of those constitutional
guarantees when it gave Article 92 its particular phrasing.
Statutory language is construed to conform as near as may be to
traditional guarantees that protect the rights of the citizen.
See Ex parte Endo, 323 U. S. 283,
323 U. S.
301-304;
Rowoldt v. Perfetto, 355 U.
S. 115;
Kent v. Dulles, 357 U.
S. 116,
357 U. S. 129.
We will attribute to Congress a purpose to guard jealously against
the dilution of the liberties of the citizen that would result if
the jurisdiction of military tribunals were enlarged at the expense
of civil courts. General Enoch H. Crowder, Judge Advocate General,
in testifying in favor of the forerunner of the present proviso of
Article 92, spoke of the protection it extended the officer and
soldier by securing them "a trial by their peers." [
Footnote 7] We think the proviso should be
read generously to achieve that end.
We refused, in
Duncan v. Kahanamoku, 327 U.
S. 304, to construe "martial law," as used in an Act of
Congress, broadly so as to supplant all civilian laws and to
substitute military for judicial trials of civilians not charged
with violations of the law of war. We imputed to Congress an
attitude that was more consonant with our traditions of civil
liberties. We approach the analysis of the
Page 358 U. S. 236
term "in time of peace" as used in Article 92 in the same
manner. Whatever may have been the plan of a later Congress in
continuing some controls long after hostilities ceased, [
Footnote 8] we cannot readily assume
that the earlier Congress used "in time of peace" in Article 92 to
deny soldiers or civilians the benefit of jury trials for capital
offenses four years after all hostilities had ceased. To hold
otherwise would be to make substantial rights turn on a fiction. We
will not presume that Congress used the words "in time of peace" in
that sense. The meaning attributed to them is at war with common
sense, destructive of civil rights, and unnecessary for realization
of the balanced scheme promulgated by the Articles of War. We hold
that June 10, 1949, was "in time of peace" as those words were used
in Article 92. This conclusion makes it unnecessary for us to
consider the other questions presented, including the
constitutional issues which have been much mooted.
Reversed.
MR. JUSTICE FRANKFURTER took no part in the consideration or
decision of this case.
Page 358 U. S. 237
[
Footnote 1]
64 Stat. 108, 70A Stat. 36, 10 U.S.C. (Supp. V) § 801
et
seq., enacted May 5, 1950. For the present provisions
governing murder and rape,
see Articles 118, 120.
[
Footnote 2]
Article 92 read as follows:
"Any person subject to military law found guilty of murder shall
suffer death or imprisonment for life, as a court-martial may
direct; but if found guilty of murder not premeditated, he shall be
punished as a court-martial may direct. Any person subject to
military law who is found guilty of rape shall suffer death or such
other punishment as a court-martial may direct:
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."
[
Footnote 3]
See H.R.Rep. No. 2682, 79th Cong., 2d Sess.; H.R.Rep.
No. 799, 80th Cong., 1st Sess.; S.Rep. No. 339, 80th Cong., 1st
Sess.
[
Footnote 4]
In
Givens v. Zerbst, 255 U. S. 11,
255 U. S. 41, a
companion case to the
Kahn case, the crime was committed
on September 28, 1918, and the court-martial convened on October
30, 1918.
[
Footnote 5]
Prior to that time, only state courts could try a soldier for
murder or rape.
Coleman v. Tennessee, 97 U. S.
509,
97 U. S. 514.
And that Act was construed as not giving the military exclusive
jurisdiction.
"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."
Id.
[
Footnote 6]
We said in
Toth v. Quarles, supra, pp.
350 U. S.
17-19:
". . . there is a great difference between trial by jury and
trial by selected members of the military forces. It is true that
military personnel, because of their training and experience, may
be especially competent to try soldiers for infractions of military
rules. Such training is no doubt particularly important where an
offense charged against a soldier is purely military, such as
disobedience of an order, leaving post, etc. But, whether right or
wrong, the premise underlying the constitutional method for
determining guilt or innocence in federal courts is that laymen are
better than specialists to perform this task. This idea is inherent
in the institution of trial by jury."
"Juries fairly chosen from different walks of life bring into
the jury box a variety of different experiences, feelings,
intuitions, and habits. Such juries may reach completely different
conclusions than would be reached by specialists in any single
field, including specialists in the military field. On many
occasions, fully known to the Founders of this country, jurors --
plain people -- have manfully stood up in defense of liberty
against the importunities of judges and despite prevailing hysteria
and prejudices. The acquittal of William Penn is an illustrious
example. Unfortunately, instances could also be cited where jurors
have themselves betrayed the cause of justice by verdicts based on
prejudice or pressures. In such circumstances, independent trial
judges and independent appellate judges have a most important place
under our constitutional plan, since they have power to set aside
convictions."
[
Footnote 7]
See S.Rep. No. 130, 64th Cong., 1st Sess., p. 88.
General Crowder was opposed to a proposal of the General Staff
that capital crimes, even when committed in this country, be tried
by court-martial as well as by civil courts. He said,
"We never have had that law, and I doubt very much whether it is
desirable to divorce the Army to that extent from accountability in
the civil courts. . . . I think that, here in the United States,
proper the Army should be under the same accountability as
civilians for capital crimes."
Id. at 32.
[
Footnote 8]
The method employed by the Executive and the Congress in
terminating wartime controls was different at the end of World War
II than it was when World War I terminated. In the earlier war,
most of the legislation dependent on the existence of a state of
war was terminated at one time.
See Joint Resolution March
3, 1921, 41 Stat. 1359, H.R.Rep. No. 1111, 66th Cong., 3d Sess.;
S.Rep. No. 706, 66th Cong., 3d Sess. At the end of World War II,
Congress acted more selectively.
See H.R.Rep. No. 2682,
79th Cong., 2d Sess. Thus, Congress, by S.J.Res. 123, 80th Cong.,
1st Sess., declared that, for the purpose of construing specified
statutes (among them certain Articles of War -- but not Article
92), the effective date of the Resolution should be deemed the
termination date of the state of war. The fact that Article 92 was
not in that list leaves the problem where it was at the time the
law was enacted. The failure to repeal, alter, or amend this law
plainly has no bearing on its original purpose.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
The Court today holds that, on June 10, 1949, the date of this
capital offense, this country was "in time of peace" within the
meaning of Article of War 92, 10 U.S.C. (1946 ed., Supp. IV) §
1564, and therefore that the court-martial before which petitioner
was tried was without statutory jurisdiction to entertain the
proceeding. Believing that the ground upon which the Court
nullifies petitioner's conviction has long been settled squarely to
the contrary, and that a
de novo examination of the
question also requires the conclusion that the United States, on
June 10, 1949, was not "in time of peace" within the meaning of
Article 92, I respectfully dissent.
In
Kahn v. Anderson, 255 U. S. 1,
255 U. S. 10,
this Court unanimously held that the term "in time of peace" in
Article 92 "signifies peace in the complete sense, officially
declared."
See also Givens v. Zerbst, 255 U. S.
11,
255 U. S. 21.
The Court now dismisses this square holding as "dictum" and as
"quite unnecessary for the decision," pointing out that the
statement of facts in
Kahn shows that the capital offense
for which petitioner there was tried was committed before the
Armistice which resulted in the termination of active hostilities
in World War I, and that the court-martial which tried him was also
convened before the Armistice. I think that
Kahn can
hardly be dismissed so lightly. The conclusion there as to the
meaning of "in time of peace" might have been regarded as
unnecessary to decision only had the Court, proceeding on a theory
entirely different from that which it actually adopted, relied on
the date of the offense or of the beginning of trial as
dispositive. But plainly the Court did not proceed on any such
basis. Rather, it accepted at least
arguendo petitioner's
contention that the court-martial which had tried him did not have
jurisdiction
Page 358 U. S. 238
to continue "in time of peace" even a trial previously begun. It
is thus not sound to say that the holding that "peace" in Article
92 "signifies peace in the complete sense, officially declared,"
was unnecessary to the decision in
Kahn. Given the ground
upon which the Court chose to decide the case, it was quite
indispensable. The idea that the ground on which a court actually
decides a case becomes dictum because the case might have been
decided on another ground is novel doctrine to me.
I think that Congress, and the military authorities charged with
the implementation and enforcement of the Articles of War, should
be able to rely on a construction given one of those Articles by a
unanimous decision of this Court. The conclusion in
Kahn
was not reached lightly without full consideration, as is shown by
the fact that nearly two pages of the summary of counsels' argument
contained in the report of the case are devoted to a discussion of
the question, and another two pages to the Court's expression of
the reasoning underlying its decision on the point. In 1948, 27
years after
Kahn and a single year before the prosecution
here involved, Congress reenacted Article 92 without change in the
relevant language. The Court now holds that, between 1921 and 1949,
the meaning of the statute underwent an inexplicable change, and
that the authority under the statute then confirmed must now be
denied. I see no warrant for thus speculating anew as to the
motives of Congress in enacting and reenacting the phrase "in time
of peace" in Article 92. [
Footnote
2/1]
Page 358 U. S. 239
Entirely apart from
Kahn, I think today's decision is
demonstrably wrong. This Court has consistently, for nearly 100
years, recognized in many contexts that a cessation of active
hostilities does not denote the end of "war" or the beginning of
"peace" as those or similar terms have been used from time to time
by Congress in legislation. In
McElrath v. United States,
102 U. S. 426,
there was before the Court a statute of Congress prohibiting
summary dismissal by the President of military officers "in time of
peace." Although I venture to say that almost as many reasons could
be conjured up for construing the term loosely in that context as
in that now before us, the Court unanimously held that July, 1866,
was not "in time of peace" although active hostilities between
North and South had long since ceased, and that "peace in
contemplation of law" did not exist until the Presidential
Proclamation of August 20, 1866.
See
also United States v.
Anderson, 9 Wall. 56. In
Ludecke v.
Watkins, 335 U. S. 160,
335 U. S.
168-169, this Court, in construing a statute, recognized
that
"'The state of war' may be terminated by treaty or legislation
or Presidential proclamation. Whatever the mode, its termination is
a political act."
See also Woods v. Cloyd W. Miller Co., 333 U.
S. 138;
Knauff v. Shaughnessy, 338 U.
S. 537, both expressly recognizing that the state of war
between this country and the Axis powers was not terminated by
either the Presidential Proclamation of 1946 or the Joint
Resolution of July, 1947.
The Court says that "Congress, in drafting laws, may decide that
the Nation may be
at war' for one purpose, and `at peace' for
another." Of course it may. But the Court points to no case, and I
know of none, which has
Page 358 U. S.
240
construed statutory language similar to that found in
Article 92 to mean anything but "peace in the complete sense,
officially declared." Under these circumstances, and given
McElrath and Kahn, the conclusion seems to me
unmistakable that Congress intended that "peace" in Article 92
means what we have always, until today, held it meant in this and
other congressional legislation. When Congress has wished to define
"war" or "peace" in particular statutes as meaning something else,
it has explicitly done so. See, e.g., War Brides Act, 59
Stat. 659:
"For the purpose of this Act, the Second World War shall be
deemed to have commenced on December 7, 1941, and to have ceased
upon the termination of hostilities as declared by the President or
by a joint resolution of Congress."
Today's decision casts a cloud upon the meaning of all federal
legislation the impact of which depends upon the existence of
"peace" or "war." Hitherto, legislation of this sort has been
construed according to well defined principles, the Court looking
to "treaty or legislation or Presidential proclamation,"
Ludecke v. Watkins, 335 US. at
335 U. S. 168,
to ascertain whether a "state of war" exists. The Court, in an
effort to make a "more particularized and discriminating analysis,"
has apparently jettisoned these principles. It is far from clear to
me just what has taken their place. [
Footnote 2/2]
Page 358 U. S. 241
The Court does not reach petitioner's contention that he could
not constitutionally be tried by court-martial because he was not a
member of the armed forces at the time this offense was committed.
It is sufficient to say that this contention is also squarely
foreclosed by
Kahn v. Anderson, supra, and that, in my
opinion, nothing in
Toth v. Quarles, 350 U. S.
11, or in
Reid v. Covert, 354 U. S.
1, impairs the authority of
Kahn on this
score.
I would affirm.
[
Footnote 2/1]
The Court's heavy reliance in construing the statute here
involved on its attribution to Congress of
"a purpose to guard jealously against the dilution of the
liberties of the citizen that would result if the jurisdiction of
military tribunals were enlarged at the expense of civil
courts"
is rendered somewhat suspect, to say the least, by the fact
that, under the Uniform Code of Military Justice, 64 Stat. 108, 70A
Stat. 36, 10 U.S.C. (Supp. V) § 801, enacted May 5, 1950, Congress
has apparently chosen to given courts-martial jurisdiction over
capital crimes committed in this country in time of peace, as well
as in time of war.
See 10 U.S.C. (Supp. V) §§ 918,
920.
[
Footnote 2/2]
The Court does not say when the "peace" which it finds to have
existed in June, 1949, came into being. It may be noted that the
Presidential Proclamation of December 31, 1946, proclaiming the
cessation of hostilities, specifically announced that "a state of
war still exists," and that Senate Joint Resolution 123, 61 Stat.
449 (effective July 25, 1947), which repealed or rendered
inoperative a selected group of wartime measures (not including
Article 92), was obviously an expression of a conscious and
deliberate decision by Congress that the time had not yet come to
end the state of war. It was not until October 19, 1951, that
Congress, by joint resolution, declared that
"the state of war declared to exist between the United States
and the Government of Germany by the joint resolution of Congress
approved December 11, 1941, is hereby terminated,"
65 Stat. 451, and not until April 28, 1952, the effective date
of the Japanese Peace Treaty, that peace with Japan was proclaimed
by the President, 66 Stat. c31.