Ex parte JOCHEN.

(District Court, S. D. Texas. April 8, 1919.)

D. L. 267

1. ARMY AND NAVY 2-MILITARY LAW-MILITARY JURISDICTION.

As distinguished from "military government" and "martial law" proper, military jurisdiction under military law, which is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces, obtains and is to be exercised in time of peace as well as of war.

2. ARMY AND NAVY

44(2)—MILITARY LAW-PERSONS SUBJECT.

Whether one is subject to military jurisdiction under military law depends on whether he is a member of the land or naval forces and Congress has subjected him to such law.

3. JURY

11(4)-PERSONS SUBJECT TO MILITARY LAW.

If one is a member of the land or naval forces, Congress can subject him to military law, and the guaranties of the Constitution for trial by jury are inapplicable.

4. ARMY AND NAVY 44(2)-LAND FORCES-ABSENCE OF UNIFORM.

That one may be a part of the land forces, and so may be subjected to military law, it is not necessary that he be in uniform.

5. ARMY AND NAVY 44(2)-ARTICLES OF WAR-"ATTENDANT OR PERSON ACCOMPANYING OR SERVING WITH THE ARMIES."

One serving with troops as superintendent quartermaster corps is an "attendant or a person accompanying or serving with the armies," within Articles of War, art. 2, as adopted August 29, 1916, subjecting such persons under certain conditions to such articles.

6. ARMY AND NAVY 44(2)-ARTICLES OF WAR-"IN THE FIELD."

The term "in the field," in Articles of War, art. 2, as adopted August 29, 1916, subjecting to such articles all retainers and persons accompanying or serving with the armies in the field, will be construed as used with the meaning which long usage of the War Department had given them, and as contained in its General Orders, Compilation 1881 to 1915, § 319, also Manual Quartermaster's Corps, United States Army, § 2193, defining “field service" to be service in mobilization, concentration, instruction, or maneuver camps, as well as service in campaign, simulated campaign, or on the march.

[Ed. Note. For other definitions, see Words and Phrases, In the Field.] 7. ARMY AND NAVY 44(2)—ARTICLES OF WAR-"IN THE FIELD."

Were the words "in the field," in Articles of War, art. 2, as adopted August 29, 1916, subjecting to such articles all retainers and persons accompanying or serving with the armies in the field, used in their limited sense, and applicable only where the armies are in or expecting actual conflict, the conditions along the Mexican border from February, 1917, to December, 1918, were such as to make them applicable.

Habeas Corpus. Application by Edward E. Jochen for writ of habeas corpus to secure release from military custody. Application dismissed.

Upon application for writ of habeas corpus by Edward E. Jochen, it appearing therefrom that applicant is in custody at Brownsville, Tex., more than 300 miles from Houston, where the court is sitting, a rule was issued requiring the respondent, Col. Frank Keller, to show cause February 28, 1919, at Houston, Tex., why writ of habeas corpus should not issue. To this rule respondent made return, justifying the detention of applicant upon the following state of facts:

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(257 F.)

That the defendant, as commanding officer of United States troops at Brownsville, Tex., has the applicant in confinement. That applicant from February 12, 1917, to December 24, 1918, served with the United States troops in the territory embraced in the Brownsville district, namely, from the mouth of the Rio Grande river to Arroyo Del Tigre, as superintendent quartermaster corps, during all of which time applicant was under the direct orders of the commander of the Brownsville district. That on, to wit, December 23, 1918, he was charged with having, during the time of his service from September 1, 1917, to December 15, 1918, committed crimes and offenses in violation of the Articles of War (Comp. St. § 2308a), and was taken into custody by the authority of respondent. That these charges were duly referred for trial to the General Court-Martial, duly appointed to sit at Brownsville. That the applicant was duly arraigned and tried by said court, and is now held in confinement awaiting the review of the said proceedings, and that in all matters relating to the arrest, confinement, and trial of the applicant the rules regulating military procedure have been complied with. That the military jurisdiction over applicant as to arrest, detention, and trial is asserted upon the ground that applicant is a person subject to military law, being as claimed by respondent, though a civilian, a person coming within the scope and meaning of subdivision D of the Second Article of War, which provides as follows:

"All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war, all retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles."

That during the period in which the applicant is charged to have committed the crimes and offenses, the United States was at war, and that during all of said time the armies of the United States with which the applicant was serving, to wit, troops in the Brownsville district, were in the field. That the general orders of the War Department, section 319, Compilation 1881 to 1915, also section 2193, Manual Quartermaster's Corps, United States Army, provides as follows:

"Field service is defined to be service in mobilization, concentration, instruction or manuever camps, as well as service in campaign, simulated campaign, or on the march."

That the duty of the troops in the Brownsville district is to patrol the Texas-Mexican border, for the preservation of life and property in the district, and to enforce the laws of the United States. That, in the performance of said duty, outposts at frequent intervals are maintained at or near the Rio Grande river. That, as supports and reserves for said outposts, squadron stations are maintained at Brownsville, San Benito, Mercedes, McAllen, Sam Fordyce, and Ft. Ringgold. That they are all equipped for field service, wear the field uniform, are supplied under conditions for troops in the field, are housed in the outposts in tents or huts, and at the squadron stations-with few exceptions-in barracks of the cantonment type, and the troops are designated as troops in the field. That the commander of said district had at all times had authority in certain contingencies to cross the river into Mexico, and troops had been prepared to make such crossings at an instant's notice. That all administrative orders relating to said troops are given to them as troops in the field. That since 1915 there has been considerable unrest on the border. What were known as bandit raids frequently occurred, and numerous fights took place between bandits, soldiers, and civilian officers, extending to the wrecking of a passenger train and the killing and wounding of several persons. That during 1916, and up to the present, there had been about five distinct invasions of Mexico by our troops following bandits therein. That the soldiers have been greatly needed on the border to protect life and property, and that they are at all times maintained and equipped for combat with bandits and law violators in the border section.

Attached to the return among other affidavits are affidavits of Col. Hamilton Bowie, commanding United States troops at Ft. Ringgold, Tex., and of

Col. Herbert J. Slocum, commander of the Brownsville district troops from January, 1918, to October, 1918. They establish that, during the time the latter was in command of the district, one officer was killed in Mexico, and about ten enlisted men were killed by fire from Mexico; that at many times it was unsafe to water the horses in the river; that in the military sense the troops were ready and looking for a fight at any minute; their duties were the same as if opposing a foe, and the troops were frequently on the firing line; that the war with Germany made it necessary for these troops to be in the field along the Southern Texas border for protection against German influences in Mexico, which at times assumed a serious and dangerous aspect, requiring our troops to be on constant patrol duty in the field, at all times fully armed and equipped. By his affidavit, Col. Bowie establishes that the troops under his command at Ft. Ringgold were on "field duty" as defined in the army regulations, as distinguished from garrison duty; that, of the four troops of cavalry under his command, one was constantly on outpost duty on the international border at distances of from 13 to 25 miles from Ringgold, and that frequent patrols were made along the border, and guards were at all times maintained; that these troops were equipped for field service with pack trains at all times ready, together with a wireless station for communications; and that an intelligence department was maintained and civil scouts employed to procure and report information of military value. At the time the troops stationed at Ft. Ringgold, and detached from that station, they were occupied with guard duty, patrols, target practice, and care of animals, incident to field service, to the exclusion of ceremonies and drills of precision, which are features of garrison service. All matters of fact thus stated in support of the return, I find to be true.

It further appears from the application and the return that, on some of the offenses with which Jochen is held to the military court, he is also charged in this court in the Brownsville division, and has been bound over by the commissioner to the grand jury. It appears with reference to this feature of the case, as shown in the supporting affidavits, that the arrest by the civil court was made on information from the military authorities, and after the military authorities had taken the applicant into actual or constructive custody, and it is apparent that, in so far as the question of comity arises between the military and the civil tribunal, as to many of the matters with which he is charged by the court-martial, no jurisdiction has ever attached in the civil court, and that as to those of which the civil court has jurisdiction the same was acquired under such circumstances as that, if comity alone operated to dispose of this' matter, it would require that applicant not be taken from the military control in which he now is.

James A. Graham, of Brownsville, Tex., for applicant. Major William C. Bedal, Judge Advocate, for respondent Col. Frank Keller.

HUTCHESON, District Judge (after stating the facts as above). [1] In every inquiry by the courts into the assertion and exercise of military jurisdiction, the question which arises at the threshold, and must be first determined, is: What kind of jurisdiction does the military seek to assert? As to this question, there has not, since the great case of Ex parte Milligan, 4 Wall. 141, 18 L. Ed. 281, been any difficulty in arriving at the fundamental principles which determine it, but only in applying those principles to the particular states of fact. In that case the court said:

"There are under the Constitution three kinds of military jurisdiction: One to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within the states or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrec

(257 F.)

tion within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the national government, when the public danger requires its exercise. The first of these may be called jurisdiction under 'military law,' and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as 'military government.' superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated 'martial law proper,' and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights."

[2, 3] In the case at bar, the jurisdiction asserted by the military is under the first subdivision, "military law," and is bottomed on the acts of Congress "prescribing rules and articles of war or otherwise providing for the government of the national forces." It is therefore wholly beside the mark to discuss, consider, or give weight to the question of whether civil courts were properly functioning, or whether those extreme conditions which alone justify the exercise of military jurisdiction under those branches known as "military government" and "martial law" proper have operation. I would be the last to view with equanimity, or permit without relief, any usurpation or deprivation of civil rights by the military; but where the military, as in this case, seeks only to assert the jurisdiction under military law as represented in the acts of Congress over persons who are claimed to be a part of the national military establishment, the duty of this court is the simple. one of determining whether the applicant is a member of the land or naval forces of the United States, and, if so, whether Congress has subjected him to military law, because, while it is clear that under the guaranties of the Constitution no person can be deprived of his right of trial by jury except he be a member of the land or naval forces of the United States or of the militia when in actual service, it is as equally true that if he is a member of the land and naval forces Congress has the plenary power to subject him to military law, and the guaranties of the Constitution for trial by jury are wholly inapplicable.

Of such weight, however, with Congress, has the right of trial by jury always been, that it has never left to implication or construction the question of whether a person is subject to military law, and, in each case where military jurisdiction of that kind is asserted, it is incumbent upon the military to put their finger on the act which confers the jurisdiction.

As far back as 1819, Hon. William Wirt, then Attorney General of the United States, in an able and exhaustive opinion to the Secretary of War, on the question of whether cadets at West Point are subject to military law, in discussing this phase of the question said (1 Op. Attys. Gen. 276):

"Congress has no power to pass a law which shall deprive the person accused of a criminal or otherwise infamous offense, of his trial by jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger.

"Even in relation to the land and naval forces (including the militia when

in actual service), Congress have never considered the mere act of stamping on those bodies a military character, by ordering them to be raised, organized, and called into service, as being sufficient, of itself, to subject them to trial by court martial under the rules and articles of war; because this would be to abrogate a high constitutional privilege by implication. In every instance, therefore, in which Congress has impressed a military character on any body of men, whom they intended to divest of the civil right of a trial by jury, besides the impressment of that military character, they have uniformly and expressly declared that they should be subject to the rules and articles of war."

And in the learned and exhaustive way characteristic of that great and able lawyer, he collates and presents the many acts of Congress touching upon such matters from the first resolve of the Continental Congress, passed April 12, 1785, to the act of April 24, 1816, then lately passed.

An investigation of the subsequent enactments of Congress having to do with similar matters will show, in the language of Mr. Wirt, “a course of legislation so long continued and so uniform marking the sacred respect in which Congress have ever regarded the right of trial by jury, that it will justify us in assuming it as their sense, that this right is never to be taken away by implication, never by the mere impressment of the military character on a body, never without a positive provision to that effect." So that, in approaching an investigation of whether the act relied upon as subjecting a civilian attached to the army to military law was within the power of Congress, impressed as I am with the evidences of the caution and respect in which Congress, the co-ordinate branch of this government, has ever regarded jury trials, I would not be justified, except in the clearest case, in declaring an act unconstitutional which is passed by Congress in the exercise of their acknowledged authority to confer military jurisdiction over persons in the land and naval forces of the United States.

[4] That it is not necessary that a person be in uniform in order to be a part of the land forces, I think clear, not only upon considerations of common sense and common judgment, but upon well-considered and adjudicated authority. Some of the leading cases sustaining the jurisdiction of military courts over civilians attached to the army and navy are In re Thomas, Fed. Cas. No. 13,888, 23 Fed. Cas. 931; United States v. Bogart, Fed. Cas. No. 14,616; In re Reed, Fed. Cas. No. 11,636, 20 Fed. Cas. 409; Bogart's Case, Fed. Cas. No. 1,596, 3 Fed. Cas. 796; Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838; Ex parte Milligan, 4 Wall. 123, 18 L. Ed. 281. Against these authorities I find no contrary expression. The apparently contrary view expressed by Attorney General Charles Devens, in 16 Op. Attys. Gen. 13, that a quartermaster's clerk, a civilian employed in that capacity, is amenable to the rules and articles of war, shows that his opinion turned, not upon the want of power of Congress, but upon its failure to subject him to military law; because in that opinion the Attorney General declares that had the clerk been serving with the armies in the field he would, under the sixty-third Article of War, become for the time amenable to court-martial jurisdiction, citing Benet Military Law, p. 29, nor is there any violence done to the dictates of humanity and reason when a person who has become voluntarily a member of the military estab