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LEE v. MADIGAN

decided: January 12, 1959.

LEE
v.
MADIGAN, WARDEN



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Warren, Black, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart; Frankfurter took no part in the consideration or decision of this case

Author: Douglas

[ 358 U.S. Page 229]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Article of War 92, 10 U. S. C. (1946 ed., Supp. IV) ยง 1564, which, prior to the adoption of the Uniform Code of Military Justice,*fn1 governed trials for murder or rape before courts-martial,*fn2 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

[ 358 U.S. Page 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*fn3 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, 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, 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

[ 358 U.S. Page 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, 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.*fn4 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 war 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, 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 ...


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