xt7msb3wtd0h_60 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Madsen v. Kinsella - no. 411 text Madsen v. Kinsella - no. 411 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_225/Folder_6/Multipage7675.pdf 1951 1951 1951 section false xt7msb3wtd0h_60 xt7msb3wtd0h April 22. 1952

Dear Harold:
Re: No. 411 - Madsen v. Kinsella

Recirculation of April 21. 1952


I am still with you.

Mr. Justice Burton

#zm’ M,

 .URToN, J.


No. 411.—-OCTOBER TERM, 1951.

Yvette J. Madsen, Petitioner,


On Writ of Certiorari
to the United States
Court of Appeals for
the Fourth Circuit.

Nina Kinsella, \Varden of the
Federal Reformatory for

[April —, 1952.]

MR. JUSTICE BURTON delivered the opinion of the

The principal question here is whether a United States
Court of the Allied High Commission for Germany had
jurisdiction. in 19:30, to try a civilian citizen of the United
States. who was the dependent wife of a member of the
llnited States Armed Forces, on a charge of murdering
her husband in violation of § 211 of the German Criminal
Code. The homicide occurred in October. 1949, within
the United States Area of Control in Germany. For the
reasons hereafter stated, we hold that such court had that

The present proceeding originates with a petition for
a writ of habeas corpus filed by petitioner, Yvette J. Mad—
sen, in the l'nited States District Court for the Southern
District of West Virginia. seeking her release from the
Federal Reformatory for Women in West Virginia where
she is serving a sentence imposed by a United States Court
of the Allied High Commission for Germany. She con—
tends that her confinement is invalid because the court
which convicted and sentenced her had no jurisdiction
to do so. The District Court, after a hearing based on
exhibits and agreed facts, discharged the writ and re-




manded petitioner to the eustody of the respondent
warden of the retortnatory. 0331’. Supp. 310. The Court
of Appeals affirmed. 188 I“. 2d 272. Because of the im—

portance and novelty of the jurisdictional issues raised,

we granted eertiorari. 342 lf. 5'. 803.

l. I’r/i/ionrm s/nlux in Geri/mny.—Petitioner is a
native—horn citizen of the l'nited States who lawfully en—
tered the Ameriean Zone. of (ileeupied Germany in 1047
with her hushand. Lieutenant Madsen of the United
States .«\ir Foree. ln 1949, she resided there, with him,
in a house rmuisitioned for military use. furnished and
maintained by military authority. {She was permitted to
use the faeilities of the lfnited States Army maintained
there for persons in its seryiee, and for those serying with
or aeemnpanyii15Lr the l'nited States Armed Forces. In
brief. her status was, that of a eiyilian dependent wife of
a nieinher ot' the l'nited States Armed Forces which were
then oeeupyingLr the l'nited States Area of Control in

()etoher it). 19429. following her fatal shooting of her
husband at their residence at Buehsehleg, Kreis Frank-
l'urt. Germany. she was arrested there by the United
States Mr l’oree Military l’oliee. On the following day,
het'ore a "l'nited States Military Government Court.”l
she was charged with the murder of her husband in \‘io-
lation of R'le ot' the Herman Criminal Code.” In Feb—
ruary. MW). she was tried 'ny “The l'nited States Court
of the .\llied lligh (‘onnnission for (,lermany. Fourth Judi—

‘Si-e ['nitt-d States Military (lovernnirnt ()rdinrinee No.31} August
l\. WIN, ll hid. ll L". lflrlil3\.

'4 The agreed statement or laws states:

“It. Seetion 311 oi" the German Criminal (‘ode reads- as follows in
ringlish ll'Ili’Pl'tiltiIli

" ‘il/H/‘t/i [iiigl/Hiit/
" '11 l. tilx {it fem pull)" to .; Nephnilnr 1941) Whoever inten-



eial District.” “ That court was composed of three
United States civilians, two of whom had been appointed
as district judges and one as a magistrate by or under the
authority of the Military Governor of the United States
Area of Control." The court adjudged her guilty and sen—
tenced her to 1.3 years in the Federal Reformatory for
\Yomen at Aldersou “‘est Virginia, or elsewhere as the
Secretary of the Army might direct. In AIay, the “Court
of Appeals of the United States Courts of the Allied High
(‘ommission for Germany,” composed of five [’nited
States civilians appointed by the AIilitary Governor of
the Area,” affirmed the judgment but committed her to
the custody of the Attorney General of the United States
or his authorized representative. The Director of the
l'nited States Bureau of Prisons designated the Federal

tionallv lilll< a human being is guilty of murder it the killing was
accompli~hhed hv death.

" "A murderer is herehv defined as one who kills a human being out
of the morltid desire to kill (Mordlust t;

" ‘l’or the >atisi‘aetion of" sexual desire;

“ 'lt‘or eupiditv tl*l.-d>t_"ier) or any other liase motives;

‘ln a treacherous or cruel manner 01' by means causing common
danger, or

" ‘ln order to make possible or to conceal another Oll‘t'db‘f‘.

“ 'li', in especially exceptional cases, the death penalty is not
snitsthle (illlflt‘lltt‘s‘st‘llil, punishment of confinement for life in a pen—
itentiary shall he impot:|Ilt’(‘\ which were deemed by the trial court applicable
to petitioner.

”See Allied High (aittlllltllv'lttlly, law No. 1, Art. 1, December SR,
1!) 1!), 1.3 l’ed. lie; ‘_‘tt\t'>, Appendix, inf/w. p. Sltt

" See lfnited States Military Government Ordinance No. 31, Art. 3,
Augu~t ls, lT'I\. H l’ed. lleg‘. 127,

7' See notes l, 3 and l, Ntlpm.



Reforinatory for W'omen at Alderson, “'est Virginia, as
the place for her confinement.”

II. Bot/1 United States courts—11211111111, and I'In'tcd
States .Ut'litary Conzmisaions 01‘ tribunals tn. the nature
of such commissions, had jurisdiction 1'11 Germany 1'21,
1919—1950 to try persons 2'11 the status of petitioner on the
charge against her —Petitione1‘ does not here atte ck h
merits of her conviction nor does she claim th at 11y11on—
111ilitary court of the 1'11ite11States or (101111311\V l1a1111u1‘1s—
diction to try her.T It is agieed byt the parties to this
proceeding that a regularly convened l'nited States gen—
eral court—martial would haye had 1111‘15111ction to try her.
The United States, howeyer. contends. and petitioner 11e—
nies. that the l'nited States Court of the Allied High Com—
mission for Germany. which tried her. also had jurisdiction
to do so. In other words, the ['nited States contends
that its courts-111artial's jurisdiction was concurrent with
that 01' its occupation courts. whereas petitioner contends

that it 1:15 exclusiye of that of its occupation courts.
The key to the issue is to he found 111 the history of
l'nitedStates111ilita1‘y co111111issions ‘ and 11111111011 States

“See 5% Stat. ltNt—lOSS, l0 1'. S. C. §l~13'3, and. since May til,
1.9711. >11" -\ri. In 111' 1'nii'1n'in Code 01' Military Justice, 131 Stat.
131'». 1'11) 1'. S. C. (Supp. 1Y1 §1339

7 There was no 1101111111111.11\ 11111111111111 11111011 States 111 (lerm. 11“.
[\‘he e1111>ye11 the 1111111111111 1\ from 1111‘11111>1111tion 1111111 (111‘man 1-111111‘1s
which had 111:1 11 or: 1111111 to national»: 111' the United Nations and t1)
families111111111111 is 111' he occupation forces. 1'11111‘11 States Military
('111y1‘1'1nnent 1.;1" _\11 2 »\r". 11 111, l‘_’ 1111. 111:". 21"11 31112 \‘1—
1111111 1111111. 1111.334. 1: .\111e11 lliu‘h ('111111111>-»11>11, Law .\11. _, Art 1,
ll 1"u1 1. 111-21 7137, Appendix. [If/w. pp. $731!: .\1111‘11 1111111 (11111—
1111\‘r1ttli, 1:1‘.\'\'11 13.111. 1.1.1 led lit-1;. 111311711137,s1-e.\ppt‘iitli.\',
[It'll/”H. ]1p..3'.1 11).

“"l’1}’ a preetiee datinu’ 1'1'11111 1>~-1T and renevrel and firmly estah—
li~he11 11111111! the ('iyil War military e111nmi<tatut1‘, is



occupation courts in the nature of such commissions.
Since our nation's earliest (lays. such commissions haye
been constitutionally recognized agencies for meeting

many urgent governmental responsibilities related to

war.“ They hate been called our connnon—law war

restricted by law, and can not ltO extended to include certain classes
of oti'enses which in war would go unpunished in thc absence of a
1'ti‘o\'isional forum for the trial of the oll'euders. . . . There lTheirl
competency has: been recognized not only in acts of ("(tttti‘t'css, but in
executive 1troclamations, in rulings ot' the courts, and in the opinions
or the Attorneys (Lieneral. ,Dttl‘ill‘.“ the (‘ivil ‘War they were employed
in several thousand cases; . . . llowlantl, Digest of Opinions,
oi" the ,lutlee—Advocates (:Ecneral of thc Army tlftlfl, 1000—1007.

" In spea iillL’L‘ ol' the authority and occasion for the use of a mili-
tary commission, (.‘olonel William 'Winthrop, in his authoritative work
on Military Law and l’rccetlcnts t2tl ed. 1920 reprint I, says at $31:
" it is those provisions of the Constitution which empower Con-
gress to ‘tleclare war~ and "raise armies,‘ and which, in authorizing
the initiation of I/'(It'. authorize the employment of all necessary and
proper agencies for its due prosecution, from which this tribunal
derives its original sanction. its authority is thus the (same as the
authority tor the making and waging" of war and tor the exercise of
military government and martial law. The commission is simply an
instrumentality for the more ellicieut execution of the war powers
yestt-tl in ('t’muress and the power yested in the President as Com—
mantlei‘—iti«t,-liit;-t' in war. in some instances . . . i Congress ha:s spe—
citically recoflnizetl the military commission as the proper war—court,
and in terms provided for the trial tliereliy ot' certain oli‘cnces. In
general. however, it has let't it to the President, and the military com—
manders rcpreseutin;r him. to employ the commission, as occasion may
require, tor the investiuatiou and punishment of violations ot" the law.s
of war and other olteuces not couuixaltle by court—martial.

"'l‘he meet/stunt tor the military commission arises principally from
the tact that the jurisdiction or the court-martial proper, in our law,
is restricted lty statute altuost‘ exelusively to members of the military
tone and to certain specific ol'i'taices tlclinevl in a written code. It
does not extend to many criminal acts. especially ol' civilians, peculiar
to time ot' war: and tor the trial of these a (lili'creut ll‘lltllllill is
required. . . . llence. in our military law, the distinctive name of
iii/«V't‘ctjtt etmtt/tflu/on has ltecn atloptctl tor the exclusively war—court,



courts.” They have taken many forms and borne many

names.” Neither their procedure nor their jurisdiction

has been )rescrihed bv statute. It has been ada ited in
l .,

each instance to the need that called it forth. See In re

1’(tnza.9/zita, 927 I”. S. 1. 18—23.

In the absence of atteinpts'hy Congress to limit, tlte

President's power. it at pears that. as Commander—in—

Chief of the Army and Navy of the ['nited States, he may.
in time of \var. establish and prescribe the jurisdiction
and procedure of military commissions. and of tribunals
in the nature of such commissions. in territory occupied
by Armed Forces of the ['nited States. His authority

which . . . is e<>entiallv a distinct tribunal ironi the ctuirt—niartial of
the Articles of war."

l7or text or General Scott's (ileneral Order No. 20, as amended luv
tileneral Order No. 2\T, Septeinher 17, 1547, authorizing the appoint—
ment of utilitarv eottll]tl~. in Mexico, see lirliltiiner, Military Gov—
ernment and Martial Latv t2d etl. rev. 1004), App. 1, SCSI—5&2. See
all1ed in l.oui>iana, in lSti2, by executive order of
the l’I‘('~i(l(‘I)t ot' the l'nited States and an opinion ltv the Provisional
.luda‘e reviewing the constitutional authority for the (‘Slzll)llion, Council of \Vzti‘, Military Triltttual,
Militarv (itH’t‘I‘IlIIlt'Ilt Court, Provisional Court, Provost Court, Court
of Conciliation, Arbitrator, Superior Court, and Appellate Court.
And see Winthrop, op. cit. ktlil—tStl—L



to do this sometimes survives cessation of hostilities.”
The President has the urgent and infinite responsibility
not only of combating the enemy but of governing any
territory occupied by the United States by force of arms.”
The policy of Congress to refrain from legislating in this
uncharted area does not imply its lack of power to legis—
late.. That evident restraint contrasts with its tradi-
tiofal readiness to “make Rules for the Government and
'tefi'ulation of the land and naval Forces; . . . “ Yn-
der that clause Congress has enacted and repeatedly re—
vised the Articles of “Var which have prescribed, with

i'r'lt has been recognized, even after peace has been declared,
pendinq complete establishment of civil government. See Duncan v.
Kale/mintot’utt. 3'37 L'. S. 304; In re Yanmsltt'ta. 327 1'. S. 1, 12—13;
Nttht‘i/u/o v. Nor/Items. 31»; U. S. 200; Neely \'. Hen/rel, 180 1.. S 109;
liar/5e \'. .lft/tt tlbt"l‘{/(‘)'. lft \Vall. 519; Leftcusr/ot'fcr v. Webb, 20 How.
liti; ('I'om‘ \'. Harrison. ll”) lltm’. 154.

1" See Article 43) of The Hague Regulations respecting the laws
and customs ol‘ war on land with special relation to military author—
itv over the territory of a hostile state (1907):

"The authority of the legitimate power having in tact passed into
the hands of the oceupant, the latter shall take all the measures in his,
power to restore, and ensure, as far as pOssible, public order and
sat'etv, while respecting, unless absolutely prevented, the laws; in
force in the country." 211‘) Stat. 230.

"Militarv government . . . is an exercise of sovereignty, and as
sueh dominates the eountrv which is its theatre in all the branches of
administration. tht-ther administered by ollicers ol' the army of
the belliuerent, or by civilians left in office or appointed by him for
tlte purpose, it is the government of and for all the inhabitants,
native or forei‘ln, \vltollv supersedinq the local law and civil authority
except in so tar as the same may be permitted b_v hint to subsist. . . .
The local Ian's and ordinances may be left in force, and in general
should be, subject however to their being in whole or in part sus-
pended and others .s'lllJe‘Tltlllt‘l'l in their stead—in the discretion of the
governinu‘ authority." \l'inthrop, op. cit. 800.

” l’. S. ('onst.) .\rt. L §S, cl. ll.




particularity. the jurisdiction and procedure of t'nited
States courts-martial. V

Originally Congress gave to courts—martial jurisdiction
over only members of the Armed Forces and civilians

rendering functional service to the Armed Forces in camp
or in the field.” Similarly the Articles of \Var at first
dealt with nonmilitary crimes only by surrendering the
accused to the civil authorities. Art. 33 American Arti—
cles of War of 1800, lVinthrop‘s Military Law and Prece—
dents (Did ed. 1020 reprint) 070. However. in 1863, this
latter jurisdiction was enlarged to include many crimes
“committed by persons who are in the military service of
the ['nited States . . . ."’ I“ Still it did not cover crimes

”Article 3‘2 ol' the American Articles of “Var of 1775 was taken
from Article XXXll of Section XIV ot' the llritish Articles of “Var
oi" 17133. It provided only that “All stilt/H's and retailers to a camp,
and all persons whatsoever, scrz't/tgy (cit/2 t/Ic confirm/ital (II')/!]/ in the
fir/d. though not inlisted soldiers, are to be subject to the articles,
rules, and I‘euulations ot' the continental army.” (Emphasis, sup—
plied.) \l'inthrop‘s Military law and .l’reecdents tfld ed. 1020 re—
lirintl 03!}, and see 1171] and 050. Article 00 of the Articles of \Var
ot' Nit} was similar. It substituted "retainers" for "retailers." Id,
at ENI. Article tit) \vas slitthtly amended iii 1574. l:3_v 1.010, as Arti—
cle tilt, (‘one‘ress still provided, as to civilians, merely that ”Ll/t retain—
t'rs to Hit comp. and all persons scri’irit/ it‘d/t the armies of the United
States [It t/rr fie/r1, thoue‘h not enlisted soldiers, are to be subject;
to orders, according" to the rules and discipline of \var.” tEniphasis
supplied.) 1d,. at 001,:111dseeT‘S—Elft.

“E The linrolhnent Act of 1503 conferred upon courts-martial juris—
diction over many nonmilitary crimes if committed by soldiers in
time of War. That Act incidentally recognized a concurrent juris—
diction over .~uch crimes in military commissions:

"Sec. 30. . . . in time of \var, insurrectitm, or reliellion, murder,
assault and liattery with an intent to kill, manslaughter . , . shall he,
punts/Hilde 123/ the sentence of a {/(‘Hi'in/ court—martial or military
(‘Ii///)/ii-\‘.~‘tt)/t. [I‘l/t'l} comnotlu/ by persons who (U'(' [it the mi/ilttri/
st rrfcr of [/[t ('iifl/r/ Stritrs. mu/ subject to the articles of tear; and
the 1HHIl. C. (Supp. IV) §5§1. The hearings, in 1040, on the
latter legislation are of some significance here. They disclosed that
the United States Military Government Courts in Germany were then
exercising, in tlte occupied territory, criminal jurisdiction over United
States- civilians accompanying the Armed Forces. Attention even
was called to the recent case of \Vilma P). Ybarbo. Like peti ioner
iii the instant case, she was a civilian dependent wife of a member
of the United States Armed Forces in Germany, charged with the
murder of her husband in violation of the German Criminal Code.
She was convicted by the United States Military Government Court
for the Third Judicial District. The Court of Appeals of the United
States Military (lovernment Courts, March H, 1940, upheld her
conviction, on a lesser charge, and sentenced her to five years’ itn—
prisonment. lit its opinion. the latter court reviewed the basis for
its jurisdiction. I'M/ted States .l/fftf/Ii'j/ (Yorcz'ttmcnt v. l'btti‘bo. 1
l', S. M. t}. Court of Appeals 307. See also, Hearings before a Sub-
eounnittee of the Committee on Armed Services on ll. ll. 2498, Uni-
form (‘ode of Military Justice, 51st (Yong, lst Sess. 871‘), 075, ltltil.
\Vith this practice before them. the Committees of both llouses of
(‘ongt‘ess recommendtul the reenactment of Article of War 15 as Article
‘_'l of the new code. They said, "This article preserves existing Army
and Air lforce law which gives concurrent jurisdiction to military
tribunals other than courts martial." 5‘ Rep. No. 480, 81st Cong,
1st Sess. 13,}; ll. ll. ltcp. No. 4'1], 81st Cong, 1st Sess. 17.



tarv tribunals of whatever existing jurisdiction they then
had over such offenders and offenses. Articles 2 and 12,
together. extended the jurisdiction of courts—martial so as
to include “all persons accompanying or serving with the
armies of the ['nited States without the territorial juris—
diction of the I'nited States . . . “ The 1916 Act also
increased the nonmilitary offenses for which civilian of—
fenders could be tried by courts-martial.” Article 1.5,
however. completely disposes of that contention. It
states unequivo willy that Congress has not deprived such
commissions or tribunals of the existing:)‘ jurisdiction which
they had over such offenders and offenses as of August 20,
1910. 30 Stat. (333. 670. See In re Tamas/tile, 327 1:. S.
l. and 15.1“ porlc Qlt’fl‘fll, 317 IV. S. 1.

“The 15116 Act‘ suhstitutcd, for Article 63 (see note 14, supra),
a new Article 12 which provided that “(lencrttl cottrls—ntartial 3/10]!
hare poirer to try {or}! person subject to IIItftf'(I/‘]/ [our for any crime
or often-1‘ made punishzdtlc by these articles, and any other person
who by the law of war is suliject to trial by militarv tribunals: .”
thtnpliasis supplied.) 3‘.) Stat. {35'}, ~11 Stat. 7551, (32 Stat. (329, 10
l'. S. (‘. (Supp. 11') § 1455-}. A new Article ‘2 then defined “any per—
.wnt subject to I/tI/t't/t/‘i/ low" so as to include—

"tdi All retainers to the camp and (IN persons nccompony/[no 02‘
.svrt'im/ 'zt‘t't/I t/Ie (mu/ts of the (fit/[ct] States ital/tout the territorial
jurist/{elicit of the (dutiful States, and in time of war all stich retain—
ers and persons accompanying or serving with the armies of the
l'nitetl States in the lield, both within and without the territorial
jurisdiction'of the l'nited States, though not otherwise sulgijcct to
these articles: . . . ."' tlimphasis supplied.) 30 Stat. 051, -11 Stat.
787; it) If. S. C. § 14-73 (d1.

l“lu ltllt'», new Articles 02 and .03 expanded the jurisdiction of
courts—martial over murder and certain other nomnilitarv crimes .‘so
as to cover their commission hv any "person subject to military law.”
'l‘hat phrase. through Article 2, included civilians in the status: of
petitioner. See note 1*, supra. l’or Articles 9‘.) and 92’}, see 39 Stat.
uni, it Stat. suit, 02 Stat. run, It) I'. s (j. (Supp. 1\') §§ 1564, 1565.
See note 11'), supra. for the sttlistance of Article Sit) of the Articles of
“hr of IVE; and of Article 55 of the Articles of “Var of 1571.



The legislative history strengthens the Government's
position. During the consideration by Congress of the
proposed Articles of “'ar. in 1916, Judge Advocate Gen—
eral of the Army Crowder sponsored Article 15 and the
authoritative nature of his testimony has been recognized
by this Court. In re Tamas/titty, supra, at 19 note. (ii—~71.
Before the Senate Subcommittee 011 Military Affairs he

“Article 15 is new. 1Y0 have included in article 2
as subject to military law a number of persons who
are also subject to trial by military commission. A
military commission is our common—law war court.
It has no statutory existence. though it is recognized
by statute law. As long as the articles embraced
them in the designation ‘persons subject to military
law,’ and provided that they might be tried by court—
martial. I was afraid that, haying made a special pro-
vision for their trial by court—martial, it might be
held that the provision operated to exclude trials by
military commission and other war courts; so this
new article was introduced: .”

“It just saves to these war courts the jurisdiction
they now have and makes it a concurrent jurisdic—
tion with courts-martial, so that the military com—
mander in the field in time of war will be at liberty to
employ either form of court that happens to be con—
venient." 5. Rep. No. 130. 64th Cong, lst Fess. 40.3”

'-'" lu explaining like provisions to the llousc Committee on Military
Affairs in “HE, t leucral (L‘rowder previously had said:

"The next article, No. 15, is entirely new, and the reasons for its
insertion in the code are these: In our “Var with Mexico two war
courts were brought into existence by orders of (1011. Scott, viz, the
military commission and the council of war. lly the military com—
iltission (len_ .s'eort tried eases cognizable in time of peace by civil
courts, aud by the council ol' war he tried oll'enses' against the laws
of war. The council ol' war did not survive the Mexican \Yar period,