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provisions of Articles 46 and 501⁄2 are the methods of appeal by a person tried before a military commission. The Order deprives them of this method of appeal.

A cardinal purpose of Article 38 was to provide a procedure for military commissions, with the proviso that nothing in the procedure shall be "contrary to or inconsistent with" the Articles of War.

The President had no authority to delegate the rulemaking power under Art. 38 to the Commission. In violation of Articles 38 and 18 the petitioners were denied the right to challenge a member of the Commission peremptorily. Confessions of the defendants were improperly admitted against each other.

If it be suggested that these are matters which do not affect the jurisdiction of the Commission or the validity of the proceedings, but are merely questions which may be raised on appeal or review, the answer is that the Order deprived the petitioners of such appeal or review.

Citing Ex parte Milligan, 4 Wall. 2; Sterling v. Constantin, 287 U. S. 378; Caldwell v. Parker, 252 U. S. 376; Kahn v. Anderson, 255 U. S. 1; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Carter v. Carter Coal Co., 298 U. S. 330; 55 Harvard L. Rev. 1295; 31 Ops. A. G. 363.

Attorney General Biddle, with whom Judge Advocate General Myron C. Cramer, Assistant Solicitor General Cox, and Col. Erwin M. Treusch were on the brief, for respondent.

Enemies who invade the country in time of war have no privilege to question their detention by habeas corpus. Halsbury's Laws of England, 2d Ed., Vol. IX, p. 701, par. 1200; p. 710, par. 1212; Blackstone, 21 Ed., Vol. 1, c. 10, p. 372; Sylvester's Case, 7 Mod. 150 (1703); Rex v. Knockaloe Camp Commandant, 87 L. J K. B. N. S. 43 (1917); Rex v. Schiever, 2 Burr. 765 (1759); Furly v. Newnham, 2 Doug. K. B. 419 (1780); Three Spanish Sailors, 2 W. B.

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1324 (1779); Rex v. Superintendent of Vine Street Police Station, [1916] 1 K. B. 268; Schaffenius v. Goldberg, [1916] 1 K. B. 284; Rules of Land Warfare, pars. 9, 70, 351, 352, 356.

If prisoners of war are denied the privilege of the writ of habeas corpus, it is inescapable that petitioners are not entitled to it. By removal of their uniforms before their capture, they lost the possible advantages of being prisoners of war. Surely, they did not thus acquire a privilege even prisoners of war do not have.

Whatever privilege may be accorded to such enemies is accorded by sufferance, and may be taken away by the President. Alien enemies-even those lawfully resident within the country-have no privilege of habeas corpus to inquire into the cause of their detention as dangerous persons. Ex parte Graber, 247 F. 882; Minotto v. Bradley, 252 F. 600. See also Ex parte Weber, [1916] 1 K. B. 280, affirmed [1916] 1 A. C. 421; Rex v. Superintendent of Vine Street Police Station, [1916] 1 K. B. 268; Rex v. Knockaloe Camp Commandant, 87 L. J. K. B. N. S. 43; Re Chamryk, 25 Man. L. Rep. 50; Re Beranek, 33 Ont. L. Rep. 139; Re Gottesman, 41 Ont. L. Rep. 547; Gusetu v. Date, 17 Quebec Pr. 95; Act of July 6, 1798, 50 U. S. C. § 21; De Lacey v. United States, 249 F. 625.

The fact is that ordinary constitutional doctrines do not impede the Federal Government in its dealings with enemies. Brown v. United States, 8 Cranch 110, 121– 123; Miller v. United States, 11 Wall. 268; Juragua Iron Co. v. United States, 212 U. S. 297; De Lacey v. United States, 249 F. 625.

The President's power over enemies who enter this country in time of war, as armed invaders intending to commit hostile acts, must be absolute.

In his Proclamation, the President took the action he deemed necessary to deal with persons he and the armed forces under his command reasonably believed to be enemy

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invaders. He declared that all such persons should be subject to the law of war and triable by military tribunals. He removed whatever privilege such persons might otherwise have had to seek any remedy or maintain any proceeding in the courts of the United States.

These acts were clearly within his power as Commander in Chief and Chief Executive, and were lawful acts of the sovereign-the Government of the United States-in time of war.

The prisoners are enemies who fall squarely within the terms of the President's proclamation. Cf. Trading with the Enemy Act of 1917, §§ 2, 7 (b).

To whatever extent the President has power to bar enemies from seeking writs of habeas corpus, he clearly has power to define "enemy" as including a class as broad as that described in the Trading with the Enemy Act.

Even if it be assumed that Burger and Haupt are citizens of the United States, this does not change their status as "enemies" of the United States. Hall, Int. L. (1909) 490497; 2 Oppenheim, Int. L. (1940) 216-218. This rule applies to all persons living in enemy territory, even if they are technically United States citizens. Miller v. United States, 11 Wall. 268; Juragua Iron Co. v. United States, 212 U. S. 297, 308. The return of Burger and Haupt to the United States can not by any possibility be construed as an attempt to divest themselves of their enemy character by reassuming their duties as citizens.

The offenses charged against these prisoners are within the jurisdiction of this military commission. Articles of War 81 and 82 (10 U. S. C., §§ 1553–4).

The law of war, like civil law, has a great lex non scripta, its own common law. This "common law of war" (Ex parte Vallandigham, 1 Wall. 243, 249) is a centuriesold body of largely unwritten rules and principles of international law which governs the behavior of both soldiers

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and civilians during time of war. Winthrop, Military Law and Precedents (1920), 17, 41, 42, 773 ff.

The law of war has always been applied in this country. The offense for which Major André was convicted-passing through our lines in civilian dress, with hostile purpose is one of the most dangerous offenses known to the law of war. The other offenses here charged-appearing behind the lines in civilian guise, spying, relieving the enemy, and conspiracy-are equally serious and also demand severe punishment. See Digest of Opinions of Judge Advocate General, Howland (1912), pp. 1070-1071. Cf. Instruction for the Government of Armies of the United States in the Field (G. O. 100, A. G. O. 1863) § I, par. 13; Davis, Military Law of the United States (1913), p. 310; Rules of Land Warfare, §§ 348, 351, 352; Article of War 15.

The definition of lawful belligerents appearing in the Rules of Land Warfare (Rule 9) was adopted by the signatories to the Hague Convention in Article I, Annex to Hague Convention No. IV of Oct. 18, 1907, Treaty Series No. 539, and was ratified by the Senate of the United States. 36 Stat. 2295. Our Government has thus recognized the existence of a class of unlawful belligerents. These unlawful belligerents, under Article of War 15, are punishable under the common law of war. See text writers, supra; Ex parte Vallandigham, 1 Wall. 243, 249.

Military commissions in the United States derive their authority from the Constitution as well as statutes, military usage, and the common law of war. Const., Art. I; Art. II, § 2 (1). In Congress and the President together is lodged the power to wage war successfully. Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 426.

Military commissions have been acknowledged by Congressional statutes which have recognized them as courts of military law. Articles of War 15, 38, 81, 82; 10 U. S. C.

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§§ 1486, 1509, 1553, 1554. Their authority has also been recognized in presidential proclamations and orders, rulings of the courts, and opinions of the Attorneys General.

The offenses charged here are unquestionably within the jurisdiction of military commissions. The prisoners are charged with violating Articles of War 81 and 82 (10 U.S. C., §§ 1553-4) which specifically provide for trial by military commission. They are also charged with violating the common law of war in crossing our military lines and appearing behind our lines in civilian dress, with hostile purpose, and with conspiring to commit all the above violations, which in itself constitutes an additional violation of the law of war. The jurisdiction of military commissions over these offenses under the law of war (in addition to the specific offenses codified in the Articles of War) is expressly recognized by Article of War 15 (10 U. S. C. § 1486).

The military commission has jurisdiction over the persons of these prisoners. Ex parte Milligan, 4 Wall. 2, 123, 138-139. The offenses charged here arise in the land or naval forces. The law of war embraces citizens as well as aliens (enemy or not); and civilians as well as soldiers are all within their scope. Indeed it was for the very purpose of trying civilians for war crimes that military commissions first came into use. Winthrop, Military Law and Precedents (1920) 831-841.

This broad comprehension of persons is well within the limits of the excepting clause of the Fifth Amendment. That clause has been almost universally construed to include civilians. Wiener, Manual of Martial Law (1940), 137; Morgan, Court-Martial Jurisdiction over Nonmilitary Persons under the Articles of War, 4 Minn. L. Rev. 79, 107; Winthrop, Military Law and Precedents (1920 ed.) 48, 767; Fletcher, The Civilian and the War Power, 2 Minn. L. Rev. 110, 126; 16 Op. Atty. Gen. 292; Ex parte Wildman, 29 Fed. Cas. 1232. Such construction