1. I dissent solely with respect to the power of the_ court-martial to try appellee. I think it will help, in order to bring out that issue sharply, to report (as my colleagues have not done) the contentions of appellant’s counsel (speaking for the Navy) in his briefs and in his oral argument on rehearing.1
(1) The Navy (as distinguished from my colleagues) freely concedes that 34 U.S.C. A. § 591 has nothing to do with this case. Appellant’s counsel on oral argument admitted that that provision of the statute creates no power, by a “regulation” or otherwise, to widen the statutory scope of a court-martial; that nowhere else in the statute can such power be found; and that, therefore, § 334 of Naval Courts and Boards, 1937, in no way purported to relax any statutory restrictions on courts-martial contained or implied in 34 U.S.C.A. § 1200 (i. e., the Articles for the Regulation of the Navy). The authorities, I think, plainly require that concession. They hold that regulations under 34 U.S.C.A. § 591 “must be consistent with” other provisions of the statute,2 and they thus construe 34 U.S.C.A. § 591 identically with 5 U.S.C.A. § 22. The latter has been held to confer “administrative • power only,” not legislative; to authorize no regulations which “extend a statute or modify its provisions.” 3 It is easy, therefore, to understand why counsel for appellant admitted that, as to naval courts-martial, the power of the executive is no greater than that expressly granted as to Army courts-martial by 10 U.S.C.A. § 1509, i. e., by regulation to prescribe no more than the procedure and rules of evidence.
(2) The Navy Articles were enacted by Congress in 1862. The Army Articles (as amended now found in 10 U.S.C.A. Ch. 36) *508had been previously enacted. Appellant’s counsel concedes that, beginning in 1862, the Judge Advocate Generals of the Army repeatedly published rulings — which (says appellant’s counsel) were “slavishly copied by” the Judge Advocates of the Navy — to the following effect: Except as to offenses (involving fraud and the like) described in Article 94 of the Articles of War4 and Article 14 of the Navy Articles,5 one who has received an honorable discharge and who has re-enlisted — no matter how soon after his discharge6 — cannot legally be tried by a court-martial for an offense committed during his earlier enlistment. To that position, we are told, the Army has adhered, without deviation, for 86 years, i. e., from 1862 to the present. The Navy similarly adhered to that position for at least 70 years (1862-1932). In his brief, appellant’s counsel says, “The traditional rule is stated in the Army’s Manual for Courts Martial (1928) par. 10, as follows: ‘The general rule is that court-martial jurisdiction over officers, cadets, soldiers, and others in the military service of the United States ceases on discharge or other separation from such service, and that jurisdiction as to an offense committed during a period of service thus terminated is not revived by a re-entry into the military service.’ ” Winthrop, Military Law and Precedents (2d ed. 1896), the standard text on the subject, officially endorsed by the Army, says (p. 124) : “Putting out of the question the class of offences, the amenability for which is expressly defined by the 60th Article [now Art. 94], it is the opinion of the author that, in separating in any legal form from the service an officer or soldier or consenting to his separation therefrom, and remanding him to the civil status at which the military jurisdiction properly terminates, the United States (while it may of course continue to hold him liable for a pecuniary deficit), must be deemed in law to waive the right to prosecute him before a court-martial for an offence previously committed but not brought to trial. In this view, a subsequent re-appointment or reenlistment into the army would not revive the jurisdiction for past offences, but the same would properly be considered as finally lapsed.”
(3) But, it is said, in decisions of naval courts-martial beginning in 1932, the Navy adopted a different attitude which (it is urged) was embodied as an instruction in § 334 of Naval Courts and Boards 1937, issued by the Secretary of the Navy with the approval of the President.7
(4) Seeking to minimize the legal effect of tlje long-continued rulings of the Judge Advocate Generals, — which declared unequivocally that a court-martial lacks statutory power over a person like appellee— counsel for appellant argues thus: Those rulings were not official interpretations of the statute; they were but statements of policy reciting a mere self-imposed administrative restriction; consequently, the change said to have been made by the Navy, beginning in 1932, was but a reassertion of a statutory power which had existed ever since 1862.
2. Undeniably, however, those Judge Advocate General rulings were never uttered as statements of policy. Always they took the explicit form of official interpretations of the intent of Congress as voiced by it in the Articles. Thus here we have not a simple failure' to exert authority, but positive, ' widely-published, announcements by the highest law-officers of the Army and Navy that Congress had not conferred such authority. Of course, if the statute plainly and unambiguously created that power,, such interpretations would be irrelevant. *509However, Navy Article 14 Eleven, to say the least, raises doubts as to the existence of that power. For it specifically provides that a person guilty of certain specified offenses (with none of which appellant is charged) shall continue to be subject to court-martial notwithstanding his honorable discharge, and this suggests that such a discharge wipes out court-martial jurisdiction as to all other offenses. I do not say that Article 14 settles the question; one may argue, as my colleagues do, that perhaps Congress there intended to deal merely with discharged men who do not re-enlist. I say only that Article 14 left the statute’s meaning, as to jurisdiction, ambiguous to such an extent that official interpretations, first announced contemporaneously with its enactment and then followed for many years, must be given great weight.
With the statutory ambiguity thus existing, I find it impossible to square my colleagues’ decision with Trade Commission v. Bunte Bros., 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881. There, after a practice, continuing for 25 years, of not enforcing a statute with respect to certain intrastate transactions, the Commission changed its position and sought to assert such authority. In construing the statute against the Commission, the Supreme Court said (at pages 351, 352 of 312 U.S., at page 582 of 61 S.Ct., 85 L.Ed. 881): “That for a quarter century the Commission has made no such claim is a powerful indication that eifcctive enforcement of the Trade Commission Act [15 U. S.C.A. § 41 et seq.] is not dependent on control over intrastate transactions. Authority actually granted by Congress of course cannot evaporate through lack of administrative exercise. But just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.”8 The position here taken by the Navy is far weaker than was that of the Federal Trade Commission; for, as to that body, there was but “the want of assertion of power,” while the Navy, for at least 70 years, again and again affirmatively declared that it lacked the statutory power it now claims.
“Even negative construction may be significant. Trade Commission v. Bunte Bros., 312 U.S. 349, 351, 352, 61 S.Ct. 580, 581, 582, 85 L.Ed. 881. Cf. United States v. Chicago, North Shore & Milwaukee R. Co., 288 U.S. 1, 13, 53 S.Ct. 245, 248, 77 L.Ed. 583.
3. Especially in the light of subsequent decisions, I take it that the Bunte doctrine is not to be glibly applied.9 But. here there are considerations which make the application of that doctrine peculiarly pertinent : Unlike the Bunte case, here there is involved the personal liberty of a citizen. After his discharge (and during his re-enlistment, within the period of the statute of limitations) he could have been indicted and tried in a civil court.10 In that event, he would have been entitled to a trial by jury. The Navy’s present interpretation of the statute, which my colleagues approve, would, then, deprive appellee of the privilege to be tried by a jury. Moreover, this broad interpretation is repugnant to a public policy, with its roots deep in our history, adverse to any unnecessary extension of the authority of military courts.
4. There is also the following important consideration: The Executive, under this statute, was given no power to make regulations affecting the scope of a court-martial. Consequently we do not have here a case of the exercise of “continuing rule-making power.”11 We do have official interpretations, by those to whom enforcement of the statute was entrusted, made simultaneously with the enactment of the statute and thereafter long continued.12 *510To this must be added the important fact that, after these official interpretations had been publicly reiterated for many years, Congress re-enacted the statute.13 A statutory re-enactment does not freeze administrative rule-making power; for, if an official is given delegated authority, pursuant to a statutory standard, to make regulations, Congress, by re-enacting the statute, is not to be deemed to have commanded that one of several alternative exercises of such delegated legislative authority is thereafter to be the exclusive mode of exercising that authority.14 But, when officials, in charge of the enforcement of a statute, and having no delegated authority whatever to make rules as to its application, give the statute a notorious interpretation, and Congress then re-enacts the statute, Congress, I think, is to be deemed to have adopted, as its own, that previously well-publicized official interpretation.
I think it pertinent that, as is well-known, the Congressional Committees in charge of legislation relating to the armed forces are peculiarly well informed as to matters affecting them. It is, therefore, most unlikely that those Committees did not know of the official interpretations when the statutes were re-enacted. It should be noted that Winthrop, Military Law and Precedents (2d ed. 1896) had been republished by the Government Printing Office early in 1920, by order of the Secretary of War “for the information of the service,” and that the Army Articles were subsequently re-enacted, on June 4, 1920. As the Army and Navy interpretations, concerning jurisdiction in a case like this, were the same, adoption by Congress of the Army’s interpretation of the Army Articles should be regarded as an adoption of the Navy’s like interpretation of the Navy Articles.15
What I have said is not, I think, in conflict with Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438, 134 A.L.R. 1155. There the Court held that an administrative construction contained in “certain office decisions of the Treasury,” of a portion of the Revenue Act, although followed by re-enactment of that part of the statute, did not preclude the Treasury from subsequently promulgating Regulations inconsistent with those earlier interpretations. But that case, I think, is distinguishable in several respects: (1) The earlier Treasury interpretations, as above noted, consisted of mere “office decisions” ; such interpretations “do not commit the Department to any interpretation”; see Helvering v. New York Trust Co., 292 U.S. 455, 466, 54 S.Ct. 806, 809, 78 L.Ed. 1361. (2) Those earlier interpretations were not changed by a mere subsequent interpretation but by a Regulation, specifically authorized by Congress which gave the Treasury “continuing rule-making power” (see 313 U.S. at 428, 61 S.Ct. 971, 85 L.Ed. 1438, 134 A.L.R. 1155). (3) In the Reynolds case there was no question of jurisdiction of a criminal action involving a man’s personal liberty.
Accordingly, I think we should apply the “familiar rule” stated in New York, New Haven & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 401, 402, 26 S. Ct. 272, 281, 50 L.Ed. 515, “that a construction made by a body charged with the enforcement of a statute, which construction has long obtained in practical execution, and has been impliedly sanctioned by the reenactment of the statute without alteration in the particulars construed, when not plainly erroneous, must be treated as read into the statute.” 16 The New Haven case was cited with approval by Holmes, J., in Copper Queen Mining Co. v. Arizona Board, 206 U.S. 474, 479, 27 S.Ct. 695, 696, 51 L.Ed. 1143, where he said that, “when, for a considerable time, a statute notoriously has received a construction in practice from those whose duty it is to carry it out, and afterwards is re-enacted in the same words, it may be presumed that the construction is satisfactory to the legislature, unless plainly erroneous, since otherwise *511naturally the words would have been changed.” 17
I incline to agree that Congress constitutionally could have conferred jurisdiction here, whereas question has been raised as to the constitutionality of the exception clause of the Army Article 94 (which is the equivalent of the exception clause in Navy Article 14 Eleven).18 But I cannot understand what my colleagues mean by saying that the question here is not one of statutory jurisdiction: If the statute should be interpreted as the Judge Advocate Generals construed it for many decades, then it is just as if it provided that a court-martial cannot legally try a man in the circumstances which existed here; and such a provision patently restricts jurisdiction.
5. For the foregoing reasons, I think appellee could not be tried lawfully by a Navy court-martial, even if it be assumed that the Secretary, with the President’s approval, intended otherwise by publishing § 334 of Naval Courts and Boards, 1937. Moreover, I question whether such was the intent: Surely it is far from clear that those sentences in § 334, to which my colleagues refer, were meant as an instruction rather than a mere digest of earlier naval court-martial decisions which had not been previously approved by the Secretary.19 In the light of the ambiguity of those sentences of § 334, and because, at best, the statutory authority is highly doubtful, I think we should not impute to the President the intention ascribed to him by my colleagues. Particularly should we not do so, inasmuch as otherwise we would have the strange spectacle of the President, the head of both the Army and Navy, giving one instruction to the Army and a very different one to the Navy, as to a grave matter of common concern to both services.
If, nevertheless, it be true that the President and Secretary so intended, but if (as I think) they lacked authority to issue such an instruction, appellee’s re-enlistment could not validly extend the power over the court-martial over him. Even a definite consent to trial for a specific offense by a court-martial must be disregarded where statutory power is absent.20 And here, at most, we have a general consent given before any offense was charged. As already noted, this alleged consent amounted to waiver of the right to a jury trial in a criminal suit; such a right cannot be waived, even after commencement of suit, unless the defendant is keenly aware of what he is doing.21 There was nothing resembling such awareness here; for appellant’s counsel on oral argument admitted that an enlisted man, until charged with an offense, does not ever see Naval Courts and Boards, 1937.22
Because of the position of counsel for appellant on rehearing, I have withdrawn my earlier dissenting opinion and have substituted what appears in the text.
United States v. Symonds, 120 U.S. 46, 49, 7 S.Ct. 411, 412, 30 L.Ed. 557; Glavey v. United States, 182 U.S. 595, 605, 608, 21 S.Ct. 891, 45 L.Ed. 1247; 13 Op. of Atty.Genl., 9, 12; 30 Op. of Atty.Genl., 234, 237-238.
United States v. Eaton, 144 U.S. 677, 637, 12 S.Ct. 764, 36 L.Ed. 591; Morrill v. Jones, 106 U.S. 466, 467, 1 S.Ct. 423, 27 L.Ed. 267; United States v. George, 228 U.S. 14, 20-22, 33 S.Ct. 412, 414, 57 L.Ed. 712; United States v. United Verde Copper Co., 196 U.S. 207, 215, 25 S.Ct. 222, 49 L.Ed. 449; International Ry. Co. v. Davidson, 257 U.S. 506, 515, 42 S.Ct. 179, 66 L.Ed. 341; Campbell v. Galeno Chemical Co., 281 U.S. 599, 610, 50 S.Ct. 412, 415, 74 L. Ed. 1063.
10 U.S.C.A. § 1566.
34 U.S.C.A. § 1200, Art. 14.
The length of the interval between discharge and reenlistment cannot have any materiality; I understand my colleagues to assent to that proposition.
So far as the Secretary was concerned, there was no indication of a change by the Navy until at least 1937. For the decisions before that date, cited appellant, were not in the form of any C. M. O. (a Court-Martial Order, approved by the Secretary) but merely in the form of a G. C. M. (a General Court-Martial Order of an Army Headquarters, not approved by the Secretary). The references in § 334 of Naval Courts and Boards, 1937, were merely to G. C. M. decisions. Not until 1938 (C. M. O. 7 of 1938, p. 42) was there any ruling by the Secretary which accords with my colleagues’ interpretation of the statute.
See also Overnight Motor Co. v. Missel, 316 U.S. 572, 580, note 17, 62 S.Ct. 1216, 1222, 86 L.Ed. 1682:
See United States v. American Union Transport, 327 U.S. 437, 455, note 18, 66 S.Ct. 644, 90 L.Ed. 772.
See 28 U.S.C.A. § 102; 28 Op. of Atty.Genl. 24; cf. United States v. MacDonald, D.C., 265 F. 695, 697.
See Helvering v. Wilshire Oil Co., 308 U.S. 90, 100, 60 S.Ct. 18, 24, 84 L. Ed. 101.
See, e. g., Billings v. Truesdell, 321 U.S. 542, 552, 64 S.Ct. 737, 88 L.Ed. 917; United States v. American Trucking Associations, 310 U.S. 534, 549, 60 S. Ct. 1059, 84 L.Ed. 1345; Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301.
See the next paragraph of the text of this opinion.
Helvering v. Wilshire Oil Co., 308 U.S. 90, 110, 60 S.Ct. 18, 84 L.Ed. 101.
Moreover, before the alleged change of the Navy’s interpretation, 29 of the Navy Articles were amended at least once; these amendments were made in numerous statutes from 1874 to 1925; none of these amendments indicated any intention to reject the interpretation here in question.
Emphasis added.
See also United States v. G. Falk & Brother, 204 U.S. 143, 152, 27 S.Ct. 191, 51 L.Ed. 411; United States v. Cerecedo Hermanos Y Compania, 209 U. S. 337, 339, 28 S.Ct. 532, 52 L.Ed. 821; National Lead Co. v. United States, 252 U.S. 140, 146, 40 S.Ct. 237, 64 L.Ed. 496; United States v. Bailey, 9 Pet. 238, 255, 256, 9 L.Ed. 113.
United States ex rel. Flannery v. Commanding General, D.C., 69 F.Supp. 661; The Amenability of the Veterans to Military Law, 46 Col.L.Rev. (1946) 947.
See footnote 7, supra.
McClaughry v. Deming, 186 U.S. 49, 66, 68, 22 S.Ct. 786, 46 L.Ed. 1049; cf. Ver Mehren v. Sirmyer, 8 Cir., 36 F.2d 876, 879, 880; Rosborough v. Rossell, 1 Cir., 150 F.2d 809, 816.
See, e. g., Patton v. U. S., 281 U. S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 278, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316; cf. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680.
Moreover, I think we may take judicial notice of the following: (1) Naval Courts and Boards, 1937, is not distributed to enlisted men; (2) it is not issued to all officers; (3) although each ship or shore station should have at least one copy of it, an enlisted man in the ordinary course of events does not see the volume unless he is charged with an offense or makes a special request for it to one of the officers to whom it is distributed. Appellant’s counsel, indeed,, admitted the truth of item (2).