*1 REID, SUPERINTENDENT, DISTRICT OF
COLUMBIA JAIL, COVERT. Term, No. Argued October May 3, 1956; 1955. decided June 1956; rehearing granted 5, 1956; reargued November
February 27, 1957. Decided June *2 for reargued appel- Solicitor General Rankin cause him petitioner lant in No. 701 in No. 713. on With Attorney Olney, Roger the brief were Assistant General Rosenberg, B. Fisher, Beatrice Carl Klein and William M. II. Burch for Bernays reargued appel-
Frederick Wiener the cause respondent lee in in No. 713. him on No. With the brief was Adam Richmond. judgment announced the Justice Black
Mr. Court and delivered an opinion, Chief and Mr. Justice Bren- Justice, Douglas, Mr. Justice join. nan
These cases raise basic constitutional issues of the utmost They concern. call into question the role of the military under system government. our They involve to expose civilians to trial mili- tary tribunals, military regulations under procedures, for against offenses thereby United States depriving them of trial civilian courts, under civilian laws and procedures and with all safeguards of the Bill of Rights. These cases particularly significant are because adoption the first time since the of the Constitution *3 wives of soldiers have been by jury denied trial a court of law and forced to trial before courts-martial.
In No. 701 Mrs. Clarice Covert killed her a husband, sergeant in the Air an Force, United States at airbase England. Covert, Mrs. was not a who member of the armed services, residing was on the base her with husband by at the time. She was a tried court-martial for murder under of Article 118 the Uniform Code of Military Justice (UCMJ).1 The trial charges preferred was on Air by personnel Force and the court-martial composed was Air Force officers. The jurisdic- court-martial asserted tion over Mrs. Covert under 2 (11) Article of the UCMJ,2 provides: following
“The persons subject are this code: “(11) Subject provisions to the of any treaty or agreement which the may United States is or a or party any accepted rule of international law, § 712. § (11). C. S. U. C. C. U. [50] [50] accompany- employed with, by, serving persons
all limits the continental armed without ing forces . . . States insane that was Mrs. contended she for Covert Counsel husband, her but time she killed at her to murder and sentenced her guilty found tribunal affirmed judgment The was life imprisonment. reversed but was Review, Board of 16 CMR Air Force because Appeals, 6 USCMA Military by the Court insanity. concerning defense errors prejudicial country pend- being held this Covert was Mrs. While in the District retrial court-martial ing proposed the District Court petitioned her counsel Columbia, that ground free to set her on the corpus of habeas writ by military authorities. her trial forbade the Constitution rel. States ex decision United Construing Court's Quarles, “a that civilian holding Toth S. U. held to a civilian trial” District Court is entitled tried could not be court-martial Mrs. Covert custody. from The ordered her released Government directly § to this Court under S. C. appealed 28 U. S. 985. See U. Dorothy husband, 713 Mrs. her
In No. Smith killed at a Army officer, post Japan living where she was by a him. was tried for murder court-martial She despite considerable evidence she was insane was life imprisonment. and sentenced to guilty found *4 Army approved by Review, was the Board of judgment 307, Military 13 and the 10 CMR CMR Court 5 314. Mrs. Smith then confined Appeals, USCMA was in a penitentiary Virginia. father, federal West Her in a respondent here, petition corpus filed a for habeas for Virginia. petition charged District Court The West that the court-martial was without because (11) Article the was insofar UCMJ unconstitutional dependents as it authorized the trial civilian accom- panying servicemen The overseas. District Court re fused to F. Supp. issue the writ, while an appeal pending Appeals was Court of for Fourth granted we request Circuit certiorari at Government, U. S. 986.
The two cases were argued consolidated and last Term and majority a of the Court, with three dissenting Justices reserving one held that trial of opinion, Mrs. Smith and Mrs. Covert their alleged for offenses was con- stitutional. S. majority U. The held that the provisions of III and Fifth Article and Sixth require by jury Amendments crimes be tried jury after indictment a grand protect did not an Amer- ican citizen he when was tried the American Govern- in foreign ment lands for offenses committed there and that Congress provide could for the trial such offenses in any it long procedures manner saw fit so as the estab- lished were due process. reasonable and consonant with opinion express then went on to the view that mili- tary practiced, as now were not trials, unreasonable or arbitrary applied dependents when accompanying members of the armed overseas. In reaching forces their majority unnecessary conclusion the found it to consider “To make Rules for Govern- Regulation ment and of the land and naval Forces” under I Article of the Constitution.
Subsequently, granted Court petition rehear- ing, 352 Now, argument S. 901. after further U. consideration, we previous conclude decisions permitted cannot be to stand. We hold that Mrs. Smith and Mrs. could constitutionally Covert tried military authorities.
I. beginning At the reject we the idea that when the acts against States citizens abroad it can do so free Bill of Rights. The United States is entirely *5 6 authority Its of the Constitution.3
a creature with only act accordance can It have no other source. by the Constitution.4 When imposed limitations all the is punish a who citizen reaches out the Government Rights and other Bill of which the the shield abroad, life his protect provide to the Constitution parts of hap- he just because away liberty stripped not be should concept. This novel in another land. pens to be It as was government. it is old contrary, To the as successfully his invoked Paul recognized long before in strict accordance to be tried right a Roman citizen English many And later centuries with Roman law. historian wrote: have all the Colony the inhabitants
"In a Settled They them, with Englishmen. take rights by expa- can that which no place, Englishman first allegiance to the put namely, Crown, off, triation commands duty of obedience to the lawful Laws Parlia- and obedience which Sovereign, may to make with reference proper ment think they take Colony.' hand, on other But, such rights them all the and liberties of British Subjects; rights against all the and liberties as they Prerogative Crown, enjoy would 5 country.” in this country of our rights and liberties which citizens enjoy are not and tradition protected alone, custom they jealously preserved have been from the encroach-
3 Lessee, parte Milligan, 326; Martin Hunter’s Ex 304, v. 1 Wheat. ex O’Keefe, Graves New York rel. 2, 119, 136-137; v. 4 Wall. 306 parte Quirin, Ex 477; 1, U. 25. U. S. S. bury Madison, Mar Hawaii Man 176-180; Cranch v. kichi, dissenting). (Harlan, J., 190 U. S. 236-239 5 Clode, Military Crown, Forces of the *6 by provisions
ments of our express Government written Constitution.6 Art. 2 the Fifth
Among provisions, Ill, those § directly Sixth Amendments are relevant to these cases. 2 lays § Article the rule III, down that: “The Trial of all Crimes, except Cases of Impeachment, shall Jury; be and such Trial shall be held State where said Crimes shall have been committed; but when not committed within State, the any Trial shall be at such Place Places as Congress may by Law have directed.” The Fifth Amendment declares: person
“No shall be held to for a answer capital, or otherwise infamous a crime, present- unless on ment a except or indictment of Grand Jury, cases in the arising land or naval forces, Militia, or in in actual when service time or public of War danger; . . . .”
And provides: tfte"Sixth Amendment
“In all criminal prosecutions, the accused shall enjoy right speedy public to a trial, by impartial jury the State and district wherein the crime shall have been . committed . . .” language Ill, 2§ Art. manifests consti- tutional protections the individual designed were to restrict the United States Government when it acts country, outside of this as well as here at home. After all declaring criminal trials jury, must be section states that when crime is “not committed any State, within the Trial shall be at such Place or Places Congress may by as the Law have If directed.” Baltimore, Cf. Barron v. 7 Pet. meaning,7 its obvious is to have language permitted of the States trials outside criminal applicable § is is com- to where offense regard group without Congress, first very held.8 From the or the trial mitted provisions § implemented have federal statutes com- of murder and other crimes for trial providing any “in State jurisdiction of mitted outside the or into which apprehended, where the offender district Amend- The Fifth and Sixth may brought.” he first their also all inclusive with Art. are Ill, § like ments, “all criminal person” “no sweeping references *7 prosecutions.” or have held federal
This and other courts Court apply limitations various constitutional asserted that acts outside the continental when it the Government only suggested it has been that States.10 While United 7 constantly language of the that This has reiterated Court unambiguous given plain must its and be Constitution where clear Saunders, 213, meaning. g., Ogden v. 302- See, e. 12 Wheat. evident 662, County Rollins, In United 303; U. 670-671. Lake v. 130 S. Sprague, 716, 731-732, the said: v. S. Court States 282 U. by voters; written to be understood “The Constitution was ordinary phrases in their and its words were used normal and meaning; distinguished is clear from where the intention technical interpolation or is no room for and no excuse for there construction such meticu- . that instrument drawn with addition. . . fact an language so to make men who well understood how lous care and any limiting phrase thought ... is such fit their does contain qualification persuasive no was intended.” evidence that 8 provide “to for According Madison, the section was intended any 3 by jury committed out of State.” Madison trial of offences 1841) Papers (Gilpin ed. 1441. 9 provision slight is now 1 Stat. 113-114. modifications With S. C. 18 U. § Rico, 298, (Due See, g., S. e. Balzac v. Porto 268 U. 312-313 Bidwett, (First Law); Downes v. 182 U. S. Process against Amendment, Ex Facto Laws or Bills Prohibition Post are rights pro- those constitutional which “fundamental” abroad,11 warrant, logic tect Americans’ we can find no otherwise, picking choosing among the remark- explicitly able collection of “Thou shalt nots” which were agencies on all of the Federal departments fastened Government the Constitution and its Amendments. Moreover, heritage history view of our and the adoption of the and the Bill of it Rights, Constitution say seems trial peculiarly anomalous to before judge independent jury picked civilian from citizenry right.12 is not a fundamental As common Blackstone in his wrote Commentaries: by jury
“. . . the trial
ever
I
been,
has
trust
ever
be,
upon
glory
will
looked
as the
of the English
if
great
law. And
it has so
an advantage over others
in regulating civil
how much
property,
must
advantage
heightened
it
applied
when
to crim-
inal
...
cases!
is the most
transcendent
[I]t
privilege
any subject
can enjoy,
for,
or wish
that he cannot be
property,
affected either
his
his
Harmony,
Mitchell
Attainder);
(Just
Compensa-
v.
13 How.
States,
Best v. Amendment);
tion Clause of the Fifth
184 F.
(Fourth Amendment); Eisentrager
Forrestal,
2d
*8
84 U. S.
App.
396,
(Right
D.
Corpus),
C.
liberty, or 13 and neighbours equals.” of of his twelve in accordance with in a by jury court law Trial after indictment procedure modes of traditional one of our most vital and remains has grand jury served elemental These arbitrariness. governmental barriers to in our Constitution safeguards were embedded procedural against sanctity their inviolateness secure to. or convenience. expediency passing demands mustered authorities supporting The keystone holding that justify its last June to opinion the Court’s Amendments did and the Fifth and Ill, Art. Sixth § Ross, S. 453. The Ross In re 140 U. apply abroad was cases that cannot be understood is one of those case highly it seems even except peculiar setting; then, in its today. be reached unlikely a similar result would ship an American serving a seaman on Ross was ship’s officer, killed was seized He Japanese waters. in Japan. At that consular “court” and tried before try Amer authorized American consuls time, statutes charged committing Japan crimes ican citizens other countries.14 These “non-Christian” certain 13 importance of trial Commentaries 379. As to the 3 Blackstone’s parte Milligan, 2, 122-123; Thompson v. by jury, Ex see also Wall. Quarles, 343, 349-350; ex Utah, 170 rel. Toth U. S. United States Commentaries, 3-10; Federalist, 16,18-19; 350 U. S. 2 Kent's 1896) (Hamilton); (Andrews Works ed. No. Wilson’s Tocqueville De observed: society jury . places
“The institution of the . . real direction governed, governed, portion in the of a hands government. punishes who not in that of the ... He criminal society. sovereigns All the have is . . . the real master of ... who authority, society govern and to instead their own direct chosen obeying destroyed or the institution directions, have enfeebled its Democracy (Reeve Tocqueville, in America trans. jury.” 1 De ed.), 282-283. (1878). Rev. Stat. 4083-4130 §§ *9 provided statutes that the laws of the States were trial govern except: the “. adapted object, . . where such are not to the laws necessary or provisions are deficient the to furnish suitable common the remedies, the law and law of equity admiralty like man- shall extended in ner over such countries; citizens and others those and if the law, neither common nor the law of equity admiralty, or nor the statutes the United States, appropriate furnish and sufficient remedies, countries, respectively, ministers those shall, by regulations decrees which shall have the force supply such law, defects and deficiencies.”15 the Ross case was The consular approved about as potentates extreme and absolute as that of the “non-Christian” countries to which the statutes applied. Under these statutes consuls could and did make the criminal laws, initiate arrest charges, alleged offenders, try them, and after take away conviction their liberty or their life—sometimes at the American consulate. Such a blending executive, legislative, and judicial powers person one in one even branch of ordinarily is regarded very Government as acme Nevertheless, absolutism.16 the Court sustained Ross’ conviction It consul. stated that constitutional 15 Id., §4086. 16Secretary of State Blaine powers referred to these consular as
“greater than ever Roman pro-consuls law conferred on the empire, who, to an officer under the terms of the commitment of astounding trust, practically irresponsible.” is S. Exec. Doc. Cong., No. 47th 1st Seward, Sess. 4. at a time when he was excepting Consul-General, declared: reason, no absence “[t]here appropriate legislation, why American China, charged citizens in grave offenses, privilege should not by jury have of a trial throughout elsewhere the world where the institution of civilization Id., at 7. prevails.”
12 within and others citizens “only applied protections trial there for brought are or who States, the United not to resi- elsewhere, committed offences alleged 17 Despite abroad.” sojourners temporary or dents States under United conviction upheld Ross’ fact that it authority, asserted constitutional passed pursuant laws that declaration sweeping to make went on the Court in another operation no can have Constitution “[t]he 18 country.” has no the Constitution approach Ross The directly repudi- been long has since abroad applicability obviously approach That by numerous cases.19 ated which has no Government, States erroneous if the United can and by Constitution, granted except that Thus the abroad.20 for crimes committed try citizens does a funda- part, least in substantial rested, at on Ross case that can be said and the most misconception mental is that consular reached there of the result support antedating the history a long had court recently has Congress of the Constitution. adoption Americans.21 trying We system of buried the consular lives and liberties jeopardize willing are not the Ross case disinterring best, it. At Americans from a different era. be left as relic should on the Term relied opinion last The Court’s alsp III Article support its conclusion that “Insular Cases” to applicable Amendments were and the Fifth and Sixth 17 Ross, supra, In re at 464. 18Ibid. 10, supra. See cases cited note 717; States, See, g., v. 343 U. S. United e. Kawakita United Bowman, 260 S. Flores, 137; States U. S. United
States v. U. denied, States, 336 U. S. 94; 171 F. 2d cert. Chandler v. United 918. 70 Stat.
to the trial of Mrs. Smith and Mrs. Covert.22 We believe misplaced. reliance was The “Insular Cases,” which arose at the turn of the century, involved territories which only recently had conquered acquired been territories, governed regu- States. These IV, lated under Art. 3,23 entirely § had dif- ferent country. cultures and customs from those This Court, although closely divided,24 ruled that certain *11 safeguards constitutional were not applicable to these they “expressly territories since had not been impliedly incorporated” into the by Congress. Union con- While ceding that rights “fundamental” constitutional applied everywhere,25 majority the found that disrupt it would long-established practices inexpedient and would to require jury trial by grand jury after indictment possessions.26 the insular
22
Bidwell,
Downes v.
244;
Mankichi,
U. S.
Hawaii
182
v.
190 U. S.
197;
States,
138;
Rico,
Dorr v. United
195 U. S.
Balzac v. Porto
258
U.
298.
S.
23
Congress
dispose
“The
shall have Power to
of and make all need
Regulations respecting
ful Rules and
Territory
Property
the
or other
States;
belonging to the United
. . . .”
24
Bidwell,
Downes v.
182 U. S.
the first of the “Insular Cases”
vigorous
was decided
Fuller,
over
dissents from Mr. Chief Justice
joined by
Harlan, Brewer,
Peckham,
Justices
and
and from Mr.
separately.
Justice Harlan
The
position
four dissenters took the
Rights
the restraints
parts
all
of the Bill of
other
applicable
were
Constitution
to the United States Government
position
it
wherever
acted. This
was
which the Court
con
had
sistently
prior
See,
g., Thompson
followed
to the “Insular
e.
Cases.”
Utah,
343;
Wilson,
v.
127
U. S.
Callan
U.
S.
great significance
right
by jury
As to the
to trial
see
13, supra,
text at note
authorities
to in
referred
that note.
territory
“incorporated”
Later
Court held that once a
become
protections
“applicable.”
g.,
all of
constitutional
See,
became
e.
States,
Rassmussen v.
U. S.
520-521.
distinguished from
Cases” can be
The "Insular
power they
in that
involved the
cases
present
temporarily
regulations
govern
to
rules and
provide
and institu-
dissimilar traditions
wholly
territories with
power is
governmental
here the basis
tions whereas
anything
cases had
citizenship. None of these
American
properly be used
they
trials
cannot
military
do with
support
an extension
as vehicles
that neither
judgment
it
our
Moreover,
civilians.
any
reasoning
given
further
nor
should be
the cases
their
Bill
other
Rights
that the
expansion.
concept
arbitrary government
protections against
constitutional
or when
they become inconvenient
inoperative
are
when
very dangerous
is a
doctrine
dictates otherwise
expediency
the benefit of a
destroy
and if
to flourish would
allowed
of our Gov-
and undermine
basis
Constitution
written
such
If
commitments become of
foreign
our
ernment.
satisfactorily
longer
can no
nature that
Government
Constitution,
bounds laid down
operate within the
it
by the method which
can be amended
instrument
*12
authority,
inclination,
have
or
But we
no
prescribes.27
exceptions
it
are not there.28
to read
into which
27
To
may
the
It
be said that it is difficult to amend
Constitution.
guard
Obviously the
wanted to
some extent
is true.
Founders
hasty
changes
against
in the basic charter
and ill-considered
necessity
pressing,
government. But
if the
for alteration becomes
strong enough, the
can
public
or if the
demand becomes
Constitution
was
promptly
has
The
Amendment
been
amended.
Eleventh
years
than two
after the decision
Chisholm
ratified within less
recently
Twenty-First
Georgia,
Amend
15 1—1HH At the time of Mrs. alleged Covert's offense, an execu- agreement tive inwas effect between United States and Great Britain which permitted United States' mili- tary courts to exercise jurisdiction exclusive over offenses committed Britain by Great American servicemen their dependents.29 For its part, United States agreed that these courts would be willing and try able to punish and to all against offenses the laws Great Britain by persons. such In all material respects, same situation in Japan existed when Mrs. Smith rights by jury, “fundamental and essential” to indictment and trial declared: pay expense
“If we are too observing mean as a nation to China, give Constitution in then up let us concessions our in China and come back to as much of the Constitution as we can afford carry Cong. out.” 11 Rec. 410. Agreement July 27, 1942, Executive 57 Stat. 1193. The ar rangement now in effect Great Britain the other North Atlantic Treaty Organization nations, Japan, is the well as in NATO Status Agreement, of Forces U. S. Treaties Other International Agreements gives A. T. I. S. which its terms foreign primary jurisdiction dependents try accompanying nation American servicemen for offenses violations which are of the law foreign (b), both the VII, nation and the Art. United States. §§ (a). foreign nation has exclusive criminal over dependents only VII, (b). for offenses which laws. violate its Art. 2§ However, Agreement provisions require contains that the foreign provide procedural safeguards nations for our nationals tried Agreement the terms VII, under in their courts. Art. 9.§ Generally, Note, see L. Harv. Rev. 1043.
Apart persons subject from those Status of to the Forces and comparable agreements and certain other restricted classes of Ameri- foreign cans, plenary jurisdiction, course, nation has criminal *13 tourists, businessmen, government residents, all over Americans — employees against and so forth —who commit offenses its laws within territory. its does a court-martial though Even husband.30
killed her Rights other Bill of by jury and trial accused give not (11) of that Art. contends the Government protections, trial the provides for as it TJCMJ, insofar the armed forces Great the accompanying dependents is legislation which be sustained can Japan, Britain obli- carry States’ out the United necessary proper made with agreements under the international gations answer The obvious and decisive those countries. agreement no course, is that this, foreign any or other Congress, on on the nation can confer from the restraints Government, which is free branch the Constitution. Constitution, of the VI, Supremacy Article Clause declares: Laws Constitution,
“This and the United thereof; shall be made Pursuance States which under made, made, all shall be Treaties which States, shall be the Authority . . . .” Land; of the supreme Law nothing language which intimates There enacted to them do not pursuant treaties laws comply provisions with the Constitution. have in the anything accompanied is there Nor debates drafting and ratification of the Constitution which suggests even such result. These as well as the debates history adoption treaty pro- that surrounds of the in Article make it that the treaties vision VI clear reason in “pursuance” limited to those made were agreements made by Constitution was so the United Confederation, under Articles of including States important peace treaties which concluded the Revolu- Agreement, See Administrative Treaties Inter 3 U. S. and Other Agreements 3341, T. I. A. national S.
17 tionary would remain in War, effect.31 It mani- would be festly contrary the objectives of those who created the Constitution, as well as those who responsible were for the Bill of Rights alone alien to our entire constitutional —let history and tradition —to construe Article per- VI as mitting United States to exercise an under agreement international without observing constitutional prohibitions.32 In effect, such permit construction would amendment of that document a manner not sanctioned by Article The prohibitions V. of the Constitution were designed apply to all branches of the National Govern- ment and they cannot nullified Executive or the Executive and the Senate combined.
There is nothing new or unique say about what we here. This Court regularly has uniformly recognized the supremacy of the Constitution treaty.33 over a For example, Geofroy Riggs, v. 133 U. S. it 258, 267, declared:
“The treaty power, expressed in the Constitu- tion, is in except by terms unlimited those restraints which are found in that instrument against the action government or of its departments, and those arising from the nature of government itself and of that of the States. It would not be contended it extends so far as to authorize what the Con- stitution or a forbids, change in the character of the 31See the references in 4 Farrand, collected Records of the Federal (Rev. Convention 1937), ed. 32See the Virginia discussion in the adoption Convention on the of the Constitution, (1836 ed.) 3 Elliot’s Debates 500-519. g., E. Minnesota, States v. 181, 207-208; 270 U. S. Joy, Holden v. 242-243; Wall. Tobacco, Cherokee 616, 620-621; Braden, Wall. Doe v. 16 How. Marbury 657. Cf. Madison, recognize Cranch 176-180. We that executive agreements are involved here it but cannot be contended that such agreement an greater rises to treaty. stature than a States, or in that of one
government latter, territory of the any portion cession without its consent.” position taken the repeatedly
This Court has also comply the Consti- must Congress, Act *15 that a treaty, a and when parity on a full with tution, is is inconsistent with subsequent is time statute which the the of conflict renders a the statute to extent treaty, say treaty completely It be anomalous to null.34 would the comply not Constitution when treaty need with aby statute that agreement such an can be overridden to that instrument. must conform Holland, 416, 252 U. nothing Missouri v. S. There is the contrary position here. There to the taken is carefully was treaty Court noted that the involved any specific provision not the Con inconsistent with the Tenth Court was concerned with stitution. people the or the Amendment which reserves to States power delegated all to the National Government. validly the make To the extent United States can delegated the their people States have treaties, the Tenth power to the National Government barrier.35 Amendment is no summary,
In the Constitution in its we conclude that Mrs. entirety applied to the trials of Mrs. Smith and 34 Whitney Robertson, stated, v. 124 Court at U. S. footing, p. “By treaty placed is the same 194: the Constitution on legislation. obligation, like act of Both are and made of supreme land, by that declared instrument law given efficacy superior and no to either over the other. ... [I]f inconsistent, the one will control two are last date Money 580; Cases, Head other . U. S. Botiller v. . . Ping Dominguez, 238; States, Chae 130 U. Chan v. United S. Allen, 509-510; Clark v. S. Moser v. U. S. 581. See 331 U. States, 41, 45. 341 U. S. Darby, 124-125, S. States 312 U. See United there. authorities collected
Covert. Since their court-martial did not meet requirements of Art. Ill, § or the Fifth and Sixth Amendments we are compelled to determine if there is within anything the Constitution which authorizes military trial of dependents accompanying the armed forces overseas.
III.
Article I, 8,§ cl. 14 empowers Congress “To make Rules
for the Government and Regulation of the land and
naval Forces.”
It has been held that
this creates an
exception to the normal method of trial in civilian courts
provided
by the Constitution
permits
to authorize military trial of members of the armed
services without all the safeguards given an
accused
III
Article
and the Bill of Rights.36
ifBut
the language
of Clause 14 is given its natural meaning,37
*16
granted does not extend to civilians —even though they
may be dependents living with servicemen
aon military
base.38 The term “land and naval Forces” refers to per-
36Dynes Hoover,
65;
parte
Reed,
How.
Ex
The that the and argues Government conjunction 14 allows Clause taken with Clause when and Mrs. Congress to the trial Mrs. Smith authorize military and by military tribunals under law. Covert together two consti- claims that clauses Government a “without limitation” author- grant power tute broad subject all civilians and soldiers izing Congress persons, to “necessary military proper” govern trial if alike, It and naval forces. was on regulate land once to the extreme of theory went similar who made contracts with subjecting persons respect to frauds related to court-martial only judicial test to such contracts.39 Circuit the legislation patently Court was unconstitu- held Henderson, parte 6,349. tional. Ex Fed. Cas. No. grants expressly It true that the Constitution Con- necessary make all rules gress proper govern regulate persons serving those who are *17 Necessary “land But the Proper and naval Forces.” and showing sharp 39 12 Stat. 696. For debates attacks on the consti tutionality legislation Cong. Globe, Cong., of this see 37th 3d Sess. legislation subsequently repealed. 952-958. The was Rev. Stat. (1878 ed.) 1342, 5596. §§ military jurisdiction to to operate
Clause cannot extend any group persons beyond of that class described Clause 14—“the land and naval Forces.” Under grand of the Constitution civilian courts are design repositories power try persons the normal charged to with against crimes And to pro United States. persons brought courts, tect before these Article III and Sixth, Eighth the Fifth, and Amendments establish the right by jury, grand to trial jury indictment specific By number of other safeguards. way jurisdiction very contrast tribunals is a extraordinary limited and from the derived cryptic language I, 8, Art. and, most, at intended § was only exception a narrow preferred the normal and method of trial Every courts law.40 extension of military jurisdiction is an jurisdic encroachment on the tion of civil courts, and, important, more as a acts deprivation of the right jury trial other treasured protections. constitutional Having run up against steadfast bulwark of the Bill of Rights, Necessary Proper Clause cannot extend the scope Clause 14.
Nothing said here contravenes the rule laid down Maryland, McCulloch Wheat. at that: “Let the end be legitimate, let it be scope within the of the constitution, all means are appro- which priate, plainly which are adapted to end, are not prohibited, but consist the letter and spirit of the constitution, are constitutional.” points As the Government rehearing: out in its brief on granting Congress “The clause gov- to make rules regulation ernment and of the land and naval forces was included in the final draft of the Constitution without either discussion original . . presented debate. . Neither the draft to the convention nor the draft submitted 'Committee Detail’ contained the clause. 5 Elliot’s Debates 379.” *18 problem with the Court was confronted McCulloch Proper Necessary and of the scope determining gov- on specific no restraints a situation where in Clause problem is way. Here the in the power stood ernmental terms, limit only Clause its does different. Not naval of the “land and members military Amend- Fifth and Sixth Ill, and the Forces,” § Art. but were express safeguards, that certain require ments governmental persons oppressive from protect designed to in prosecutions criminal given practices, shall be —safe- In the military in trial. given guards which cannot be provisions, other well as constitutional light these as they formed, were background which and the historical inconsistent with both military trial of civilians is constitution.” spirit “letter scope of Clause 14 light on the Further reflected That Amendment which was the Fifth Amendment. after reads: adopted shortly the Constitution a capital, for or person “No shall be held answer on a crime, presentment unless otherwise infamous Jury, except arising in cases indictment a Grand forces, or in Militia, or naval when the land public dan- service time War or actual added.) . . (Emphasis . .” ger; arising in this Amendment for “cases exception Since the undoubtedly designed or naval land forces” was power granted Congress provide correlate with Regulation” of the armed serv- “Government ices, persuasive it is a reliable indication that authority encompass Clause 14 does not conferred fairly “in” the persons cannot be said to be who service. attempt possible,
Even if it were we need here to boundary between “civilians” precisely define the recognize and naval Forces.” members of “land We there might be circumstances where a person could be “in” the armed purposes services for of Clause 14 *19 even though he had formally been inducted into military or did not wear a uniform. wives, But the children dependents and other of servicemen cannot placed be in that category, though even they may be accompanying a serviceman abroad at Government ex- pense and receiving other benefits from the Govern- ment.41 have difficulty We no in saying that persons such do not lose their civilian status and their right to a civilian trial because the Government helps them live as members of a soldier’s family.
The tradition of keeping military subordinate to civilian authority may not be so strong the minds of generation this as it inwas the minds of who wrote those the Constitution. The idea that the relatives of soldiers could jury be denied a trial in a court of law instead tried court-martial guise under the of regulating the armed forces would have seemed incredible to those men, in whose right lifetime the try to any soldiers for offenses in peace time of only had been grudgingly conceded.42 The Founders envisioned the
41Most of the benefits dependents accompanying received servicemen enjoyed by overseas are also accompanying those service country men in this example, quarters, commissary privileges, —for benefits, transportation medical free of household effects and so forth. Mutiny In the Acts, passed 1688, first Mar., 1 Will. & c. English reluctantly departed Parliament Law, from the Common 44, infra, granted see Army note authority peace in time of try initially only for mutiny the offenses of and desertion soldiers— in time of beginning civil insurrection. In the this limited court-mar granted only tial periods was months; for of four later it granted year year. was from Clode, Military 1 See Forces of the Crown, 19-21, 55-61, 76-78, 142-166, 499-501, 519-520.
Initially Mutiny apply Acts did not to the American Colonies. Parliament, time, first authorized the trial of soldiers during peacetime in courts-martial the overseas dominions. 12 dangerous to necessary institution, but one army aas Their bounds. its essential if not confined within liberty that ancient history. They knew fears were rooted military leaders.43 by their had overthrown republics been history of Seventeenth They familiar with were I to govern tried England, where Charles Century this During Parliament. army and without through Law, he used courts- contrary the Common attempt, non-military offenses.44 try for certain martial soldiers Office, I, Manual Anne, 43; See the British War c. 34. Geo. c. § 1929), reaction to mili- Military (7th ed. 10-14. For colonial Law preceding country period the revo- tary in the trial of soldiers there. referred to at note 49 and the authorities lution see text *20 Congress the of first authorized trial It was not until 1863 that etc., arson, murder, rape, wartime, such as soldiers, in for civil crimes Previously been the had by 12 soldiers Stat. 736. courts-martial. In Cole- for trial in state courts. to state authorities turned over the Tennessee, 509, this Court declined to construe man v. 97 U. S. jurisdiction depriving civilian courts of concurrent 1863 statute as the known hos- try The Court said: "With to soldiers for crimes. military any by with tility people the the interference of American courts, such justice in the civil no inten- regular the administration of absence of clear and direct be tion should ascribed Id., language at 514. to that effect." 43Washington “Mercenary . have one Armies . . at warned that allmost all the Countries time subverted the liberties of or another Washington they Writings ....’’ 26 of been raised to defend have ed.) Federalist, (Fitzpatrick in The No. cautioned: Madison 388. military proved the to her liberties of Rome final victim “[T]he they Europe, . of as far as ever triumphs; and . . the liberties price have, 'the of her existed, exceptions, few been establishments.” 44 no the crimes of The Common Law made distinction between subjects peace. in time were of civilians of All soldiers and those life-guardsman deserted, by so tried same civil courts “if a alike only contract, he his he sued for and if struck could breach battery.” only an officer he was liable an indictment or action (1st 1849), 2 ed. In time of Campbell, Lives of the Chief Justices
25 This court-martialing peacetime soldiers evoked strong protests from Parliament.45 The I reign Charles by was followed rigorous military rule of Oliver Later, Cromwell. II James used the Army fight his recognized war exception the Common Law permitted armies try pages English history soldiers “in field.” are filled struggle with the against of the common-law courts and Parliament jurisdiction military See, example, tribunals. Richard II, 5; II, 2, 5; Henry IV, e. 14; Henry Richard cc. VI, c. 19; I, Rushworth, Collections, App. c. 3 Car. c. 1. 3See Historical 76-81.
During Ages the Middle the Court of the Constable Marshal jurisdiction exercised over offenses committed soldiers time beyond of war and over cases “of or Death Murder committed Hale, History Analysis England Sea.” of the Common Law of (1st 1713), passed jurisdiction ed. 37-42. As time of this court steadily was narrowed Parliament and the common-law courts so (1609-1676) that Lord Chief Hale Justice could write that the court long great “has upon Hale, supra, been disused Reasons.” 42. As the Court of the disrepute Constable and fell Marshal into disuse and over soldiers time war was assumed commissions appointed by King by military councils. Mostyn Fabrigas, Cowp. Lord at Mansfield observed that “tradesmen who followed the train British [of
Army Gibraltar], (The at were liable to martial law.” distinc- tion “military between the terms “martial law” and law” is of rela- tively origin. Early by military recent writers referred to all trials law.”) authorities as “martial *21 45 1627, Right, I, (Pickering, VII, the Petition of 3 Car. 1c. Vol. 1763) p. 319, protested: your Majesty’s “nevertheless late time divers commissions under of great by forth, persons seal have issued which certain have been assigned appointed and authority commissioners with and proceed land, according justice law, to mthin martial against mariners, joining persons such soldiers or or other dissolute them, any murder, as robbery, felony, mutiny should commit outrage whatsoever, summary or other or misdemeanor and such agreeable law, and course order as is to martial as and is used in proceed war, armies in time to the trial and condemnation promulgated He people. and the Parliament against in the on enough relied (strangely Articles War for trial of soldiers brief) authorizing Government’s This action by courtsmartial.46 non-military crimes Mary and brought William revolution that hastened the by a Bill of to abide agreement their upon throne to the right among things, protected other Rights which, background general against was by jury.47 It trial Justice jurists, Lord Chief greatest English two of the con who exerted Blackstone —men Hale and Sir William sharp expressed on the influence siderable Founders — military hostility any expansion of the as so far to assert: instance, For Blackstone went courts. upon prin- no law, “For which is built settled martial decisions, is, entirely arbitrary its ciples, but reality no observes, Hale truth Matthew Sir rather than allowed as law, something indulged but discipline necessity of order and a law. give countenance; can army only thing is the it put offenders, be to death and them to cause to executed such according to the law martial: humbly your Majesty’s subjects] pray most do therefore “[Your commissions, proceeding Majesty . . . that the aforesaid
excellent annulled; law, may and that hereafter no be revoked and martial any person persons or may issue forth commissions of like nature any aforesaid, of them whatsoever to be executed as lest colour contrary your Majesty’s subjects destroyed, put to the to death Military Clode, Forces and franchise of land.” See also laws Crown, 18-20, of the 424-425. Military Winthrop, These out Law Articles are set (2d ed., Reprint 1920), II removed Precedents 920. James also (later Herbert and Sir John Holt Lord Chief Lord Chief Justice holding Justice) peacetime trials in the bench for from contrary Campbell, illegal to the law land. See were (1st 1849), 90-93, ed. 129. of the Chief Justices Lives Mar., 47 1Will. & c. *22 ought
and therefore it not permitted time when peace, king’s open per- are all courts for justice to receive according sons to the laws land.” generation adopted the Constitution not did distrust the military history because alone. past Within their they royal governors own lives had seen sometimes military resort to rule. British troops quartered were Boston at various times from 1768 until the outbreak of the Revolutionary royal War support unpopular gov- . ernors and to intimidate the local populace. The trial of soldiers courts-martial and the interference of the the civil courts aroused great anxiety and only antagonism not in Massachusetts but throughout example, colonies. For Samuel Adams 1768 wrote: .“. . s it not enough for us to seen have soldiers [I] and mariners forejudged of life, and executed within body the county by martial law? Are citizens 48 1Blackstone’s Commentaries 413. And Hale in much the same vein wrote: “First, Reality That in Truth and Law, is not a [martial law] something indulged Law;
but rather than Necessity allowed as a Government, Discipline Army, only Order and in an is that give Countenance, can those Laws a ....
“Secondly, indulged only This Law was to extend to Members of the Army, opposite or to Army, those of and never was so much indulged (executed or) to be upon others; intended exercised others who were not Army listed under the had no Colour Reason by Military Constitutions, to be bound applicable only Army; to the they Parts, they whereof govern’d were but were to be order’d and according they to the subject, though Laws to which were it were a Time of War.
“Thirdly, That the Law, whereby any Exercise of Martial Person his should lose Life or Member, Liberty, may permitted not be Kings of Peace, Time open when the Courts are for all Persons Justice, according receive to the Hale, History Laws of the Land.” Analysis England (1st Law of 1713), ed. 40-41. the.Common *23 of ill-used the will threatened, at upon, to be called of the by pretext put arrest, under soldiery, the Of rights of fundamental in breach the military, law of franchise contrary to the law and subjects, and yet spirits people of as . the land? . . Will the of by menaces unawed the tyranny, unsubdued governed by submit to be arbitrary power, com- our attention No! Let us rouse force? security great birthright, our is our law, mon —which . . . oppression insult against all kinds of right by jury trial sub- had also seen Colonials courts which authorized of Parliament by acts verted unpopular try alleged violations admiralty to Adams, 231. See Wells, The Life and Public Services Samuel 49 1 Rule; Report Military of Boston Dickerson, Boston Under also (November 20, 1772), “A List of Correspondence Committee of Morison, Ameri Rights,” The Infringements and Violations of 1764-1788, 91; First Declaration Resolves Revolution can Congress Congress of the Continental in 1 Journals Continental (Ford-ed.) 63-73. Royal of Massachu- Gage, June then Governor General The its environs. Colony, martial in Boston and declared law
setts supersede the course this effort to denounced Continental Declaration the law martial. law and to substitute of the common Archives, Taking Arms, Fourth Series Up in American of Causes (Force ed.), 1865, 1868. placed martial 1775,Norfolk, Virginia, under also was
In November Assembly Virginia denounced Royal law the Governor. martial,” systems, the law of all imposition the “most execrable Constitution, laws of this and the violation of “direct country.” id., 81-82. Congress of adopted the Provincial South
And Constitution governors protested: “. . . and others on Carolina March dispensed . . bearing royal . commission in the colonies [have] in its the law martial land, and substituted with the law Constitutions, Thorpe, stead; . The Federal and State . . .” “Navigation” “Molasses” and Acts.50 This gave the admiralty courts over historically offenses only by triable jury a court of law and great aroused resentment throughout the colonies.51 early As as 1765 delegates from nine colonies meeting York New asserted in a Rights” “Declaration of by jury trial was the “inherent and right invaluable” every citizen colonies.52 background
With this it is not surprising that *24 Declaration of Independence protested that III George had “affected to render Military independent of and superior to the Civil Power” and that Americans had been deprived many cases of “the benefits of by Trial 53 Jury.” And adopted those who the Constitution em- bodied their profound fear and distrust of military power, as well as their determination to protect by trial jury, the Constitution and its they Amendments.54 Perhaps 50 III, 15; Geo. III, c. 8 Geo. c. 22. Benedict, See 4 Admiralty (6th 1940), 672-704; American ed. §§ Harper, English The Navigation 184-196; Laws, Adams, 9 John Works, 318-319. protested:
Jefferson in 1775 juris- extended the “[Parliament has] admiralty beyond dietioñ courts of thereby their antient limits depriving us right jury affecting inestimable of trial in cases property both life subjecting and arbitrary and both to the decision single dependent of a judge.” and Journals the Continental Congress (Ford ed.) 132. 5243 Harvard Classics 53State adopted during constitutions period generally this con provisions protecting tained right jury warning to trial and against military. Thorpe, See The Federal and State Constitu tions, (Delaware) 569, (Maryland) 1688, (Massachusetts) 1891-1892, (North Carolina) (Pennsylvania) Carolina) 2787-2788, 3083, (South 3257, (Virginia) 3813-3814. I, 8, 9; II, §2; Ill; See Art. II, III, Art. Art. Amendments §§ V, Madison, VI the Constitution. See Debates in the Federal in this hoped that fade and memories that
were aware from hav- this Nation people they keep way could old battles the same again fight again ing freedom. individual that the Founders clear it seems history, light in mili- trial of civilians permit
had no intention trials and jury denied they would tary courts, where Con- merely giving protections, constitutional other “necessary and which were rules power to make gress the Forces.” naval of the “land and regulation for the proper” of these clauses interpretation Such a latitudinarian purpose of the well-established would be at war with its strictly proper military within keep the Founders to authority. The Constitution to civil sphere, subordinate regulate “the land can say does not regulation might persons all whose other naval Forces land relationship to maintenance have some the Founders no There is indication naval Forces.” courts system setting up rival contemplated jurisdiction over courts for compete with civilian relationship might have some contact civilians who have forces. Courts-martial were with the armed *25 non- of law over jurisdiction with courts concurrent military America. an been faced with
On occasions this Court has several military courts. attempted expansion landmarks parte Milligan, 2, great Ex Wall. one military in authorities were history, Court’s held that this military in power try civilians not or naval without service martial law in area where the civil declaring Convention of Illustrative of Formation Documents Cong., States, R. Doc. No. 69th The Union of The American H. 600-602; Making 564-571, Warren, 1st Sess. The of the Constitution 41; (1947 Federalist, 26, 27, 28, ed.), 482-484, 517-521. The Nos. 1836) passim. (2d Elliot’s Debates ed. deposed
administration not was and the courts were not stirring passage proclaimed: closed.55 the Court guarantee “Another of freedom was broken when Milligan by jury. was denied a trial minds great country have differed on the interpre- correct given tation to be provisions various of the Federal Constitution; judicial decision been has often invoked to settle their until meaning; true but recently no one ever right doubted that the of trial jury was organic against fortified law of attack. It is assailed; now if can but ideas expressed in words, language any meaning, has this right of the most valuable a free coun- —one try preserved to everyone accused crime who —is not to the army, attached or navy, or militia in actual service.” In Duncan Kahanamoku, S. 304, U. the Court reasserted the principles parte Milligan enunciated Ex and reaffirmed the military tradition of subordination to civil authorities and institutions. It refused to sanction the military trial of civilians in during Hawaii wartime despite government claims that the needs of defense made martial imperative. law
Just last
Term,
Court held in United
ex
States
rel.
Quarles,
Toth v.
55 Cf. Ex 17 Fed. 9,487. Cas. No. And see the account of the trial Tone, of Theobald Wolfe 27 Howell’s State Trials 614. 56 Wall., at 122-123. *26 57 S., 350 U. at 22-23. Cf. Flannery United States ex rel. v. Com manding General, Supp. 661, 69 F. by stipulation rev’d unreported
32 “crime” murder, charged he was (2) that since indictment he was entitled to sense, constitutional in the con- protections trial, and the other jury jury, a by grand Eighth Fifth, Sixth, 2 and the Ill, § in Art. tained trial out pointed The Court Amendments. who were persons the rule for was courts civilian forces. of the armed members to dis- grounds upon supportable are no There Mrs. Toth, present from the cases. Toth case tinguish the three were All were all civilians. and Mrs. Smith Covert, All murder. for All three were tried American citizens. country. foreign in a were committed alleged three crimes an ex-serviceman (1) Toth was only The differences were: arrested soldiers; (2) Toth was they were wives while foreign they were seized in the States while United connection with had closer anything, If Toth countries. for crime was com- the two women his military than in the Air Force. actually serving he was mitted while members Mrs. had never been Smith Mrs. Covert by the had employed army, been army, had never The army any capacity. Govern- served in the never in Toth that the constitu- argued appropriately ment him than court-martialing was clearer tional basis for hus- accompanying their court-martialing wives who are as a Certainly Toth’s conduct soldier bands abroad.58 relation to maintenance of order and bears closer forces than the conduct these discipline the armed fact arrested here while the that Toth was wives. 20235, April 18, Circuit, 1946. And see No. order Second Case, parte Vranken, Antrim’s 888; 288; F. Ex Van Phila. Shaw, Y.) Seward, Smith v. (N. 563, 569-570; Jones v. Barb. (N. Y.) 257. Johns. Quarles, States ex rel. Toth respondent, p. Brief for is, anything, “Indeed, case if 11: we think constitutional 350 U. S. Toth, at the time of who was a soldier clearer for the court-martial accompanying the armed forces.” offense, his it is for a civilian than
33 foreign only wives were arrested in is material countries if safeguards constitutional do not shield a abroad citizen the him. As power when Government exercises its over have before, we said such view the Constitution is erroneous. The mere fact gone these women had pro- overseas with their husbands should not reduce the the gives tection Constitution them. Milligan, Duncan and Toth cases recognized deeply opposition
manifested rooted and the ancient country to the military extension of over control In each civilians. expand instance effort jurisdiction of military courts to repulsed. civilians was
There been a have number of decisions the lower federal have upheld military courts which trial civilians performing services for the armed “in the forces time war.59 To the extent during field” these cases can be insofar justified, they as involved trial of persons who were not forces, “members” the armed they on powers.” must rest In Government’s “war face actively of an enemy, hostile com military necessarily persons manders have broad over on battlefront. From a adoption time prior Constitution the extraordinary- present circumstances an area of fighting actual have been considered sufficient to permit punishment of some civilians in that area military courts under military Japan rules.60 But neither
59 States, Perlstein v. United 167, granted, 151 F. 2d cert. 327 U. S. 777, Mikell, Hines moot, dismissed 822; 28; U. S. v. 259 F. parte Jochen, Ex parte Falls, parte Ex 200; 257 F. Ex 415; F. Gerlach, 616; States, Shilman v. F. Supp. 73 F. in part, In re denied, reversed 164 F. 837; 2d cert. 333 U. S. Berue, Kilpatrick, Supp. 252; McCune re Supp. F. 80; 53 F. Bartolo, Di Supp. 50 F. 60See, g., e. American Articles of War Art. XXXII Winthrop, Military (2d ed., Reprint 1920), Law and Precedents 953, 956.
haveWe examined all the cases of trial of civilians an area be said properly Britain could nor Great Mrs. way at the time under hostilities were active where at their offenses committed and Mrs. Covert Smith they were tried.61 time “in the field” concept urges that
The Government *28 accompanying dependents reach to be broadened should of world conditions overseas under the military the forces points time. It present at the exist tension which authority prepare include powers” “war out how the military forces defensive our defenses and establish the recognize we the world. While posture about are the and the Executive powers” of “war with the prior contemporaneous to and British or American Armies that we were able that the has advanced or Constitution Government by independent exception these cases research. Without to find during of battle— appear wartime the area to have involved trials occupied enemy territory. these Even in areas “in the field”—or in military “dependents” only trial of instances of there are isolated method of Apparently the normal accompanying armed forces. camp expel camp them from disciplining followers was to away privileges. take their ration 61 military Judge Experts law, the General and on Advocate position that “in Attorney repeatedly taken the General have Winthrop, fighting. See, g., Mili e. field” means in an area actual 100-102; Davis, (2d Reprint 1920), tary ed., Law and Precedents Military (3d 478-479; Dudley, Military 1915), Law and Law ed. 413-414; Atty. (2d 1908), Op. 14 Courts-Martial ed. Procedures of (1912) 151; (1901) 56, 563; 22; id., 48; Dig. id. id. Op. 16 JAG Gen. 49, 211, (1895) 76, 325-326, 599-600; (1880) Cf. Walker v. id. 384. Quarantine Officer, Supp. 980, F. Chief (10), provides (10) UCMJ, C. 552 that in Article U. S. § serving accompanying the forces persons war with or armed time of We subject to court-martial law. in the field are historically recog- (10) sets forth the maximum that Art. believe military jurisdiction concept over civilians under the extent of nized attempt quite not The Government does of “in field.” —and military jurisdiction support over Mrs. Smith appropriately so—to (10). Art. 2 or Mrs. Covert under broad,62 reject we argument present Government’s peace permit military threats to trial of civilians accom panying armed forces overseas an area where no way.63 actual are exigencies hostilities under which required have on the military rule battlefront are not present in areas where no conflict Military exists. trial of civilians “in the field” is an extraordinary it should not expanded expense be at the of the Bill of Rights. agree We with Colonel Winthrop, expert on military jurisdiction, who declared: “a statute cannot be civilian can lawfully made framed amenable military jurisdiction to the peace.”64 time of (Emphasis supplied.)
As Court ex stated United States rel. Toth Quarles, 350 fight U. S. business soldiers is to prepare fight wars, try not to civilians for their alleged crimes. Traditionally, military justice has been *29 rough a justice form of emphasizing summary procedures,
62 during Even time of war the Constitution must be observed. parte Milligan, 2, Ex 120, 4 Wall. at declares: “The Constitution of the United States is a law people, for rulers and equally peace, in war and in pro- and covers with the shield its men, times, tection all classes of at all and under all circumstances. doctrine, involving No pernicious more consequences, was ever in- by the any vented wit of provisions man than that of its can any suspended during great exigencies government.” Kentucky Also see Hamilton v. Co., 156; Distilleries 251 146, U. S. Trading United States v. Corp., Commodities 121, S. 339 U. 125. 63 Kinsella, Madsen v. controlling 343 341, U. S. is not here. It enemy concerned in territory trials conquered which had been and held force of being governed arms and which was at the time military our forces. Army In such areas the commander can military establish or civilian commissions as an occupation arm of the try everyone occupied area, in the they whether are connected with Army or not. 64 Military Winthrop, (2d Law and ed., Reprint Precedents 1920), a view penalties and stern convictions speedy in the ranks. fighting and fitness obedience maintaining military must purpose and very of its nature Because efficiency. Cor- emphasis discipline on place great in the emphasis less been always there has respondingly, than the individual rights protecting on courts. society civilian civilian appointed ad hoc bodies typically are Courts-martial They among subordinates. by military officer from his subject degrees of “command varying always been have simply are exec- essence, tribunals these influence.” are the executive chain personnel utive tribunals whose of the court- Frequently, the members of command. promotions, officer for appointing martial must look to the efficiency ratings assignments advantageous —in in the service. Conced- progress future short, their honesty and military personnel high degree ing to undoubtedly all justice nearly of them sense of nature of court-martial, in the members have, jurors independence of do not and cannot have the things, judges.66 from general public drawn of civilian 65 Hearings on before a Senate Committee See Subcommittee Sess.; Cong., Beets on H. 81st 1st Armed Services S. 857 and R. Hunter, grounds, F. Supp. 825, other 2d 75 F. rev’d on v. Shapiro States, denied, 963; U. Ct. Cl. cert. S. Korea, Supp. Keeffe, 6 Catholic U. 69 F. 205. Cf. JAG Justice L. Amer. Rev. 1. authority has final The officer who convenes the court-martial also brought place charges the first to determine whether will be *30 pick inquiry, counsel, the prosecutor, to the defense board of legal to the law officer who serves as adviser court-martial. 66 necessity independent, imperative judges be Speaking of the Hamilton declared: alone, judiciary [Ljiberty nothing
“. . have to fear from the . can of every thing but its either would have to fear from union with its nothing so much to departments; . . . can contribute other office, quality permanency independence as firmness and of have improvements that a number recognize We more military justice recently by engrafting been made in on and more of the methods of civilian courts courts- large martial. these from the part ameliorations stem during reaction of inducted the two civilians, who were experience military justice. to their Wars, World Notwithstanding reforms, military the recent trial does give not an accused the protection same which exists the civil courts. far all Looming above other deficiencies military of the trial, course, is absence trial jury independent before an after an judge indictment a grand jury. merely Moreover reforms are statu- tory; Congress perhaps the President —can rein- —and practices, subject any state former imposed to limitations by the Constitution, whenever it desires.67 yetAs it has clearly been settled to Rights what extent the Bill of and other protective parts of apply the Constitution military trials.68
may justly regarded indispensable ingredient therefore be as an and, constitution, great its measure, as the public citadel of the justice public security.” Federalist, and the The 78. No. 67 The legal already chief officers armed services have recom mended to provisions that certain of the UCMJ which designed provide protection were repealed an accused should be military or limited in the efficiency. interest of order and Joint Report Military Judge of the Appeals United States Court of and the Advocates General the Armed and the Forces General Counsel Department Treasury (1954). Walsh, Military See Law: Justice?, Return to Drumhead A. J. B. A. 521. Wilson, Cf. Burns v. 137, 146, 148, 150; Note, 346 U. S. 70 Harv. 1043, Taylor, L. Rev. 569; 1050-1053. But see Jackson v. 353 U. S. Grimley, In re exception U. S. 150. in the Fifth Amend ment, course, provides grand jury required is not indictment subject exception in cases trial and this has been read over requirements into Sixth Amendment jury so that the trial are inapplicable. parte Quirin, Ex U. S. In Swaim v. United States, 165 U. S. this Court held that President or command ing officer had to return a case to a court-martial for an
38 every person comes who emphasized
It must be
subject
is
jurisdiction of courts-martial
within the
from the
substantially different
that is
military law—law
Military
in
society.
is,
law
governs
law
civilian
very
frequently
cast
law which
many respects, harsh
It
iron
emphasizes the
vague
terms.69
sweeping
even scales of
more that
it does the
discipline
hand
yet
definitely
it
been
estab-
Moreover,
has not
justice.
President, as Commander-
extent
lished
what
delegates,
pro-
or
can
forces,
armed
his
in-Chief
military law
change
or
substantive
supplement
mulgate,
military
courts in time of
procedures
as the
as well
has
any event,
in time of
war.70
peace,
provide
the rules
the President broad discretion
given
very
example,
For
these
governing military trials.71
the President’s
manual
issued under
cases
technical
insanity
regard to the defense of
name with
of Mrs.
importance
the convictions
trials was of critical
provide
If the President can
and Mrs. Smith.
Covert
jeopardy provisions
the Fifth
If the double
increase
sentence.
practice
applicable such a
would
unconstitu-
were
Amendment
Kepner
States, 195
v. United
Cf.
S. 100.
tional.
U.
69
provides:
example,
UCMJ,
Art.
50 U. C. 728
For
S.
§
[Code],
“Though
specifically
all disorders
mentioned in
neglects
good
discipline
prejudice
to the
order and
in the
bring
upon
forces,
all conduct of a nature to
discredit
armed
cognizance
punished
. .
forces . . . shall be taken
of .
armed
at the discretion
[a court-martial].”
Judge
employee
In 1942 the
Advocate General ruled
a civilian
Army
engaged
base could be
of a
in construction at
contractor
predecessor
of Article
tried
court-martial under the
134
advis-
ing
employees
Dig. Op. JAG,
at their work.
his fellow
slow down
Supp.,
Quirin,
Eliason,
parte
United States 28-29;
Ex
317 U.
1, S.
See
States,
301;
Swaim v.
In “it summary, military still remains that true probably tribunals have been and never be can con- way stituted such that can they have the kind same of qualifications that the Constitution has essen- deemed tial to fair trials civilians in In part federal courts.” this is attributable to the inherent differences in values and attitudes separate military that the establishment from In society. civilian military, by necessity, emphasis placed must be on the security and order of the group rather than on the value integrity individual.
It urged is expansion of military jurisdiction over civilians only claimed here is slight, and that practical necessity for it is very great.73 The attitude appears to be a slight encroachment on the Bill of Rights and safeguards other in the need Constitution cause little concern. But to hold that these wives could by tried military would be tempting precedent. Slight encroachments create new boundaries from which legions can territory seek new to capture. “It may be that it is the obnoxious thing its mildest and repulsive form; least illegitimate but and unconstitutional Quarles, rel. States ex Toth S.U. 73According figures to the Government’s almost the ci 95% by army during six-year period vilians tried abroad courts-martial country from 1949-1955 “petty were tried for minor offenses. this by offenses” civilians on reservations are tried civilian alleged commissioners unless the offender chooses trial in the Federal District U. S. C. 3401. Court. § namely, by way, in that footing first get their
practices legal from modes slight deviations approaches silent adhering only be obviated This can procedure. security for the provisions constitutional the rule that A liberally construed. should be property person deprives of half their them construction and literal close right, gradual depreciation efficacy, and leads than substance. It more in sound as if it consisted for the constitutional to be watchful duty of courts any stealthy encroach- against citizen, rights cannot consider Moreover we ments thereon.”74 many Throughout history slight one. encroachment “slight” been called military have transgressions *33 light in of the justified as “reasonable” been and have eyes our to times. cannot close of the We “uniqueness” ruled many nations are peoples today fact that military. by the tradition faith with this Nation’s not break should
We civilian author- subservient military power keeping firmly in is embodied which we believe a tradition ity, country remained true to has the Constitution. Perhaps no seventy years. one hundred for almost faith men military than Nation has been truer group in the nations, many other the soldiers of themselves. Unlike perform content to their duties they have been per- every period need and defense of the Nation attempting usurp power form those duties well without system of constitutional which is not theirs under our government. authority of divided on the a-government
Ours is only strength there but assumption that division is not tyranny. from And under our Constitution freedom try given power alone civilians for courts of law are United, States, v. U. S. 74 Boyd philosophy- their against offenses the United States. The expressed by Coke, speaking long ago Lord from a wealth of experience, timely: is still
“God me send never to live under the Con- Law veniency or Discretion. Shall Souldier Bench, Trumpet Justice one not let Sit on will Cryer speak Westminster-Hall.”75 Covert, In judgment No. Reid v. of the Dis- directing trict Court that Mrs. from Covert released custody is
Affirmed. Krueger, No. Kinsella judgment District Court reversed and the is case remanded with custody. instructions to order Mrs. released from Smith Reversed and remanded. Mb. Justice took no the considera- part Whittaker tion or decision of these cases. Frankfurter, concurring
Mr. Justice in the result. These cases involve the constitutional Congress to provide dependents for trial of civilian accompanying members of the forces armed abroad *34 capital court-martial cases. The normal of method trial of federal under is in offenses the Constitution a civilian tribunal. Trial way of offenses court- of martial, procedure with all the its characteristics of so different from the safeguards procedure forms and of exceptional the conventional an of courts, is exercise jurisdiction, arising from granted Congress the I, 8, 14, Art. cl. of § the Constitution of the United States “To make Rules Regula- for the"Government and
75 Rushworth, Collections, App. 3 Historical 42 Hoover, Dynes v. naval Forces.” of the land and
tion Winthrop, Quarles, 11; 350 S. U. 65; see Toth 20 How. 52. Article (2d 1896), ed. and Precedents Military Law 64 Military Justice, Stat. of Code (11) 2 of the Uniform were (11), predecessors 552 and its C. 107, 109, § 50 S.U. agreements power, and the of as exercise passed jurisdic- the Japan recognized- and England with based agreements was under those be exercised tion to involved to the persons of relation the on the Britain, Stat. with Great agreement forces. See the America States 1193, E. A. S. No. 31; c. Forces) VI, 6 Geo. Act, & (Visiting S. Japan, U. Agreement Administrative the 1952 Agreements Other International Treaties T. I. A. S. 2492. constitutionally permissible
Trial court-martial can, appraisal, regarded on a fair only persons who authority under given falling within Forces,” and I to the “land and naval regulate Article specific protected by provisions are not who therefore It is III Fifth and Sixth Amendments. Article and the right to a that, regarding grand at least of course true unmindful Fifth Amendment is not jury indictment, scope military discipline.1 Within demands “except cases appropriate construction, phrase land and naval has been assumed arising Forces” speedy public also to trial modify guaranties capital, person “No held answer for or otherwise shall be presentment crime, unless or indictment of a infamous on Grand Jury, arising .” except in in the forces . . . cases land or naval Military provides: “The
Article of the Uniform Code of Justice (11) Subject following persons subject . . to the are to this code: . agreement provisions any treaty the United States is or to which may party any accepted law, all or be a or to rule of international serving persons with, employed by, accompanying the armed forces . without the limits of the United States . . .” continental
43 by jury. so, problem And is before us not to be answered recourse to the literal excep words this tion. The cannot simply by saying cases be decided that, since in uniform, they these women were not not were “in the land and naval in Forces.” Court’s function adjudications constitutional is not exhausted a literal reading may words. It be is tiresome, but it none keep judicial vital, theless our on minds fixed injunction that “it is a expound constitution we are ing.” Maryland, M’Culloch 4 316, v. Wheat. Although Winthrop, treatise, his states that the Con “clearly distinguishes stitution from the civil separate class as communities” “recognizes no third part part class which is civil and military military for a — particular purpose or particular a situation, and civil for all purposes other in all other . . . ,” situations Winthrop, Military (2d Law and Precedents ed. 1896), 146, Court, applying appropriate methods of consti tutional interpretation, long has and in held, variety situations, exercise of a specifically granted to it, Congress may sweep may in what be neces sary explicitly to make effective the power. worded See Jacob v. Ruppert Caffey, 251 264, especially U. S. et seq.; Purity Lynch, Extract Co. v. 192, 201; U. S. Railroad Commission v. Chicago, Burlington Quincy & Co., R. S. is significance U. 588. This the Necessary Proper Clause, which not is con separate sidered so much a clause I, Art. as an § part of each integral of the preceding 17 clauses. Only may thus a strangling be avoided literalness construing document an enumeration of static rules living government but the framework designed for an undefined future. M’Culloch Maryland, 316; Wheat. California, Hurtado v. S.U. 530-531. may
Everything that be deemed, as the exercise judgment by allowable Congress, fairly to fall within *36 “To Congress given conveyed conception of the Regulation make for the Government Rules constitutionally that is within and naval Forces” land the inde- to revision subject and not legislative grant sure, every event To be of the Court. pendent judgment “the land that bears some relation or transaction tol- come within the ipso does not naval Forces” facto The issue legislative grant. of that conception erant not dis- regard involves considerations these cases under the in a determination involved similar to those situations Obviously, practical Process Clause. Due military. Yet the some relation before us bear the rela- merely is whether for this Court not question is and naval Forces” to the “land tion these women finding that sufficiently preclude necessity close to particu- its of a arbitrary in selection Congress has been I, look to Art. although we must For, lar of trial. method it not justifying power, is cl. as the immediate 8,§ be into the Constitution to taken only clause of gov- scheme of organic The Constitution is account. A entirety. particular as an ernment to be dealt with of the be from the rest provision cannot dissevered conclusion these cases therefore Constitution. Our Fifth III and the must take account Article due in- all the factors weigh Amendments. must Sixth We in order decide whether these volved these cases dependents closely are so related to what women may allowably deem essential for the effective “Govern- land Regulation ment and and naval Forces” subjected they may that to court-martial cases, consequence is loss of the capital these when Article III and the Fifth and protections afforded Amendments. Sixth possibility are concerned here even with the
We non-military type of some alternative of trial that does not contain all the III Fifth safeguards of Article and the judge Sixth must has only We what Amendments. been enacted is at and what issue. It is the power actu- ally by Congress asserted I, under Art. cl. § must be adjudged now in the III light Article and the Fifth and Sixth Amendments. making adjudica- I must tion, emphasize only that it is the trial of civilian dependents in capital peace case in time of question. *37 in The has it, Court not before I and therefore any opinion need not intimate on, involving situations civilians, persons the sense of having a mili- tary status, dependents. other than Nor do we have before us a involving case a non-capital crime. This narrow delineation of the merely respect issue is to the important binding restrictions passing on Court when on the of constitutionality an Act of “In Congress. exercise jurisdiction, of that it is bound rules, two which it has rigidly adhered, one, anticipate never to question of constitutional necessity law of advance deciding of it; the other never to formulate rule of con- stitutional law than required broader precise facts to which it is to applied. These are rules safe guides judgment. to sound It is the dictate of wisdom to closely follow them carefully.” Steamship Co. Emigration Commissioners, 113 U. S. also
We are not concerned here with the substantive as- pects grant of the of power Congress to “make Rules for Regulation Government of the land and naval Forces.” What punished conduct should be and what a capital constitutes case are matters congressional for dis- always subject cretion, any of course to specific restrictions of the These Constitution. cases involve validity procedural conditions for determining commission punishable a crime in fact death. The taking life is in capital especially is irrevocable. It cases weighted must be conflicting interests the balance procedural safeguards heavily in favor most Alabama, U. S. Thus, Powell v. Rights. Bill in deadly peril they all that stood fact “above 71, the that the defend- to conclude their lives” led Court failure to allow by the process been denied due ants had and the failure time counsel reasonable to seek them imply that I I not mean to repeat. do appoint counsel. capital cases controlling are the considerations that irrele- constitutionally dependents civilian are involving than other capital involving cases civilians vant dependents non-capital involving or in cases dependents only dealing here say I do are or other civilians. we dependents. cases and civilian capital are dependents The that civilian Government asserts and that part of our armed forces overseas integral them military necessity subjecting substantial there is jurisdiction. points court-martial Government military dependents go that civilian abroad under out in a com- military personnel live with auspices, *38 of and munity, enjoy privileges military facilities, military inevitably that their conduct tends to influence discipline. capital
The for crimes prosecution court-martial of of the dependents committed civilian members deemed, is under hardly armed forces abroad to be to conditions, obviously appropriate modern the effective to for power exercise of the “make Rules the Govern- of Forces” Regulation ment and the land and naval is deciding power granted it is a of what question when I therefore restriction is made under Article and what III the Fifth and Sixth Amendments. on Article proximity, physical social, think that I do not is, to “land and Forces” these women naval clearly put us, that has been before so regard due to all Regulation” by the effective “Government and demanded reasonably those forces as justification a demonstrate for court-martial capital over offenses.
The speaks “great potential Government of the impact military discipline” on accompanying these civilian dependents. This cannot be denied, impli- nor should its cations be minimized. But the notion discipline that over military personnel is to be furthered by subjecting their dependents civilian to the threat of capital punishment imposed by is court-martial too hostile to the reasons that procedural safeguards underlie the Bill Rights for safeguards displaced. those to be" It is true that discipline might be seriously depend- affected if civilian ents capital commit murders o'ther could crimes with impunity. one, however, availability No challenges provide punish- for trial and ment of these for The dependents such crimes.2 method trial alone is in issue. The suggests that, Government if trial in III subject Article court to the restrictions of the Fifth Sixth only Amendments alterna- tive, such trial could not practicably, be held abroad and it impracticable would often be equally transport all the But, witnesses back to for the United States trial. although no pass there is need to on issue in this case, trial obviously only practi- United States is may cal alternative and other alternatives raise different questions. constitutional figures Government’s own Army for the show that the total (all number civilians “serving with, employed by, accompanying civilians the armed merely forces” overseas and not civilian dependents) for general whom courts-martial alleged III, 3, provides Article cl. “The Trial of all Grimes . . . § *39 any when not within . . . be committed State shall at such or Place by Congress may as the 1790, Places Law have directed.” Since 113-114, provided 1 Stat. has for trial in the such district (apprehended) brought. where the offender is found or first See 18 U. S. C. § 13 in the 7 only was deemed advisable3
murder were from ascertain impossible is 1950-1956. It years, fiscal many persons were exactly us how figures supplied figures indicate offenses, but capital for other tried nothing many. There is been could have there more other are services figures that the indicate manageable problem a to be appears It thus substantial. by necessary found procedural restrictions within opinion. adverse to that a decision argument made
A further foreign a trial only would mean that the Government NATO Status assuming be had. Even could Interna- Other Treaties and 4 U. S. Agreement, Forces 2846, covering T. I. A. S. 1792, Agreements tional are armed forces large part of our where a countries only States to the United gives jurisdiction stationed, specu- cannot military authorities, this Court through its or unwilling grant be any given nation would late that civilian over extraterritorial continue such they to be tried capital if were dependents in cases And, if even other manner than court-martial. some then case, civilian would dependents were the these such Military Justice, 64 Code of Under Article 19 Uniform may impose any 579, special 114, 50 U. S. C. a court-martial Stat. § “except death, dishonorable punishment not forbidden Code months, dismissal, hard labor discharge, in excess of six confinement pay months, in excess of three forfeiture without confinement exceeding month, pay period for a pay per or forfeiture two-thirds exceeding 20, 64 50 U. S. C. Art. Stat. six months.” Under may impose any summary punishment not 580, a court-martial § death, dismissal, “except dishonorable bad- the Code forbidden month, discharge, one hard labor in excess of confinement conduct forty-five days, to certain in excess of restriction without confinement pay in months, or forfeiture of excess of two specified limits in excess punish impose pay.” In order to one month’s of two-thirds of general limits, of these court-martial must in excess ment 64 Stat. 50 U. S. C. 578. under Art. § convened *40 merely position in the many same are so federal employees and their dependents other United States foreign are laws of subject citizens who the nations residing there.4 See the of when also NATO Status Agreement, supra, VII, 2,§§ Forces Art.
The final argument Government makes the that these dependents part civilian mili- are of the United States tary in the of contingent eyes foreign abroad the nations concerned and that a may profound their conduct have on effect our relations these with a countries, conse- on quent effect the establishment there. But argument the that in military court-martials capital are cases necessitated this factor either assumes military court-martial a stronger constitutes deterrent this sort of conduct or that, trial, the absence such a of punishment no would be meted out and our foreign policy thereby injured. why The reasons these considerations carry no conviction been already have indicated.
I therefore that, capital cases, conclude the exercise of court-martial dependents over civilian peace justified time of cannot be I, Article considered in connection with specific protections the III Article the Fifth and Sixth Amendments.
Since the conclusion thus reached from what the differs Term, Court decided last respect judicial decent the for process for calls re-examination grounds two prevailed. then Court sustained its action on 4 Report A Joint Committee on Reduction of Nonessential Expenditures Pay Federal on Federal Personnel and indicates that agencies Government, excluding Depart executive the Federal Defense, employed 51,027 persons ment of alone outside conti February nental 1957, excluding employees United States in Cong., Panama Canal. S. Print Com. No. 85th 1st Sess. Although figures foreign these nationals,” they include “some never theless indicate a subject substantial number of citizens United States foreign Cong. See law. Rec. 5313-5316. Con- with the authority dealing cases Regulations” “make all needful Rules gress Ross, In re 140 U. S. Territories, reinforced juris- criminal sustained the Court, which this *41 in These authorities Japan.5 diction a consular court very dif- of, to, specific and related situations grew out or even They ferent here. do not control from those now problem us. embarrass before Legal self-generated not abstract cate- doctrines are they nor gories. They sky; do not fall from the are specific origin it. pulled They juridical out of have a meaning from etiology. They and derive and content and from the gave the circumstances that rise them they they serve. To purposes designed were these like are bound as is a live tree to its roots. Doctrines and expressed by those the Ross case the series cases Canter, Co. v. 1 Pet. beginning with American Insurance They placed setting. their must historical mechanically from and trans- cannot be wrenched it suffering an planted alien, into unrelated context without precedent involving or distortion. “If a mutilation involving horse, black horse is to a a white applied case an elephant are If it an or animal we not excited. were or then action, naturae a chose we would venture ferae might make a difference. thought. into The difference chiefly are when really precedents We concerned about their differ from the in the case at facts somewhat facts has gulf bar. Then there is a or hiatus that to be and a principle prac- a concern for concern bridged practical Powell, Thomas tical results wisdom.” Reed Vagaries Interpretation, and Varieties Constitutional 2(11) Having constitutionality on these based the of Article concluded, grounds, no to examine the the Court “we have need Regula power ‘To make Rules for Government tion of under Article I of Constitu the land naval Forces’ tion.” 351 U. S.
36. This attitude precedent toward underlies the whole system of our case law. It was thus summarized Mr. Justice Brandéis: peculiar “It is a system virtue of our process law that of inclusion exclusion, so often employed in developing rule, is not allowed to end enunciation expression its and that an opinion yields later to Jaybird impact of facts unforeseen.” Mining Weir, v. Co. 271 U. S. (dissenting). Especially is this attitude to be observed in constitutional controversies.
The territorial cases relied on the Court Term last held specific that certain constitutional restrictions on the Government did automatically apply acquired territories of Florida, Hawaii, the Philippines, Puerto Rico. In these cases, Court drew its decisions from of Congress to all “make needful Rules and *42 Regulations respecting Territory . . . belonging to States,” United for which provision is made in Art. IV, 3.§ The United States from acquired time to time lands in many which of our laws and customs found an uncon- genial soil they because ill accorded with the history and people. habits of their Mindful of all provi- relevant sions of the Constitution allowing and not one frus- to trate guiding another —which is the thought opin- of this ion—the Court found it necessary to IV, read Art. § together with the Fifth and Sixth and Amendments III Article in light of those circumstances. The question arose frequently most respect with to the estab- lishment by jury possessions of trial in which such system wholly was without antecedents. The Court consistently held respect with to such “Territory” that congressional power under Art. IV, 3,§ was not restricted by requirement Ill, of Art. cl. § and the Sixth by Amendment of trial providing jury.
“If right by jury to trial were a fundamental right goes which wherever the of the framing if extends, Congress, or United States outlying territory belonging laws to the United by system obliged to establish States, was mat- no that, it would follow legislation, affirmative trial capacities people, ter or of the what needs be forthwith and no other must jury, way, injus- to may the result be work established, although aid the tice rather than to provoke disturbance justice. If the orderly administration United duty shall impelled by advantage, its or States, acquire territory savages, peopled to it hold for ultimate admission may dispose not sound, if this it must establish Statehood, doctrine proposition To such a jury. there the trial state into carrying it impossibility demonstrates acquire shall practice. Again, if the States United having by treaty territory an estab- cession jury trials are system jurisprudence, where lished orderly pre- but a of fair and trial unknown, method code, acceptable long-established vails under people disregarded, must be preference ignored they them- their established customs accept, incorporation to selves coerced advance system trial States, into the unknown United do think them and unsuited to their needs. We make intended, giving power Congress it was territories, hamper exercise regulations for the its States, 195 Dorr v. this condition.” *43 S. 148.6 138, U.
6 Mankichi, 197, In Hawaii 190 S. the Court rested its decision v. U. Congress annexing joint interpretation on an resolution of did Hawaiian Islands. Court held the act of annexation require by grand jury trial of its force indictment and a not own holding Implicit jury. was the as a Sixth Amendment in constitutionally sumption that such indictment and trial were recognition required assumption on a in Hawaii. This was based
53 right” The “fundamental test is the one which the Court consistently has enunciated in series of cases— long Canter, g., 511; e. American Ins. Co. v. 1 Pet. De Lima v. Bidwell, Bidwell, 244; S. Downes v. 182 1; U. U. S. States, Rico, Dorr v. United Balzac v. Porto U. S. dealing S. with claims of constitutional re U. 298 — power strictions on the to “make all needful Regulations” governing unincorporated Rules and for process territories. The of decision to the appropriate led to examination of the problem detailed relation specific “Territory” to This exam the United States. in ination, similarity analysis its to terms of “due process,” essentially the same as that to be made present weighing congressional power cases to make Regulation “Rules for of the land the Government and naval Forces” III against safeguards of Article and the Fifth and Sixth Amendments.
The results in the cases that arose reason of the acquisition of exotic “Territory” do not control present cases, the territorial on specifically cases rest Art. IV, 3, grant which is a of power Congress § to deal with “Territory” and other property. Government Of course the sought to be exercised in Britain Great Japan does not relate “Territory.” The Court’s that the “imposing upon act should not be construed as the islands every provision Constitution, of a which must have been unfamiliar large inhabitants, to a number of their previous and for no preparation Id., had been made . . . .” at 215-216. applicable question For a statement of the law before the arose respect to lands outside the continental limits of the United Thompson States, Utah, see equally 170 U. S. 347: “It is beyond question provisions of the National Constitution relating by jury to trials prosecutions for crimes criminal apply Territories of the United States.” But see Mormon States, Church v. United Congress, 136 U. S. 44: “Doubtless legislating for the subject Territories would be to those fundamental personal rights limitations favor of which are in the formulated *44 lay down a cases did the territorial opinions provisions of protective principle broad limits apply outside the continental do not Constitution particu- considered the of the States. This Court newly territory acquired in each to determine lar situation govern of “Terri- Congress grant whether by provision a the Consti- tory” specific restricted was emphasis put cases, The territorial in the tution. considering specific circum- necessity them on for relevant particular case, are thus stances each harmonizing for con- provide an method they illustrative considered, provisions appear, separately which stitutional conflicting. of author- last Term relied on a second source Court Ross, case, In re 140 U. S. ity, the consular court subject treaty Ross, Pursuant to a British Japan, was ship, States but member the crew a United tried and convicted in a consular court Yokohama ship Yoko- murder of a fellow seaman while the was corpus His application hama harbor. for a writ habeas 44 F. denied, to a Court was United States Circuit affirmed. This appeal here, judgment and on was long “the ground Court, set forth the of the Circuit Court acquiescence by executive, uniform administrative in the departments government of the legislative validity and then legislation,” S., 140 U. at. stated:
“The an addi- might Court have found Circuit legisla- ground calling question tional for not practice in the uniform of civilized Congress, tion of provide consular tribu- governments for centuries to . countries . . for the nals in other than Christian amendments; these would exist its but limitations Constitution and general from spirit the Constitution inference and rather powers, any express its than and direct all derives provisions.” application its
trial of their subjects own or for citizens com- offences mitted in those as as countries, well for the settle- ment of disputes civil them; between and in the uniform recognition, down to time of the forma- tion of government, our fact the estab- lishment of such tribunals among was the most important for subjects treaty stipulations. . . .
“The treaty-making power vested our govern- ment extends all proper subjects of negotiation foreign with governments. can, equally any It of the former or present governments of make Europe, treaties providing judicial for the exercise author- ity in other appointed countries its officers reside therein. do any question
“We not understand that is made by counsel as to its power respect. in this His objection is legislation by to the which such treaties are carried .... out
“. . By government . the Constitution a is or- dained and established 'for the United States for and not countries limits. outside their America/ guarantees it against capi- affords accusation of tal or crimes, except by pre- infamous indictment or sentment grand jury, impartial a and for trial jury thus accused, apply only when to citizens and others States, within United or who are brought trial for alleged there for offences committed elsewhere, not to temporary sojourn- residents or . The ers abroad. . . Constitution can no have operation country. When, in another therefore, or officers of representatives government per- our are authority any mitted to exercise kind another be on country, it must such conditions as the two agree, being the laws of neither may countries one the other. obligatory upon The deck of a private many true, it is is considered vessel, American territory of the constructively as United purposes vessels, whether on board of such yet persons States, pro- invoke the passengers, cannot officers, sailors, brought referred to until provisions tection boundaries the actual territorial within 462-464. S., at . . U. States. about made at the outset should be observation
One opinion in Ross. Insofar for decision grounds operative the Constitution view that expressed Mr. apparently Justice States —and outside the United all lands over *46 by “United States” Field meant May How flag flew, Burgess, John W. see States Terri- Its Extra-Continental Govern the United States expressed a Q. (1899) notion tory?, 14 Pol. Sci. —it abroad evaporated. Governmental long has since action authority restrictions and the performed under both the is before example, proceedings of the Constitution —for in Britain military tribunals, whether Great or American subject applicable restric- States, are to the in the United opinions in Burns v. See tions of the Constitution. Wilson, S. 137. U.
The significance of the Ross case and its relevance regard due present cases cannot be assessed unless case was is accorded the historical context which that any principle decided. Ross not rooted abstract power or comprehensive theory touching constitutional very to a its restrictions. was with reference It decided history. To practical long with a particular, problem of this not attribute to Mr. Justice Field’s mindful does On assumption. historical opinion some unavowed spelled he out the considera- Court, behalf of the whole tions that controlled it: European governments
“The to send practice countries, in foreign reside authorized to officers to exercise a limited over vessels and sea- men of their country, to watch the interests their countrymen and to disputes assist their adjusting protecting their commerce, goes very back ato early period, even preceding what are termed the Middle Ages. ... In other than coun- Christian they tries were, by treaty usually stipulations, clothed with authority to complaints against hear countrymen their and to sit in judgment upon them charged when public offences. After the rise of Islamism, spread of its followers over eastern Asia and other countries on bordering Mediterranean, judicial authority the exercise of this became a matter of great concern. intense hostility people of Moslem faith to all other sects, and particularly all Christians, affected their intercourse, and all proceedings had their tribu- adopted by nals. Even the rules of evidence them placed those of grounds different faith unequal on any controversy For cause, with them. reason punishments of the barbarous and cruel inflicted in countries, frequent those use accused, torture to enforce confession from it parties govern- was matter deep interest to Christian *47 ments to subjects, withdraw the trial of their when charged offence, with the of public commission arbitrary from the despotic action of the local officials. Treaties such conferring jurisdiction upon these consuls peaceful were essential to the residence of Christians within those countries and the suc- prosecution cessful of commerce with their people.” S., 140 U. at 462-463.
“It is true that the occasion consular tribunals Japan may in hereafter be at present, less than as year in every country progresses civilization system judicial pro- the assimilation of its of inas countries, as well that of Christian cedure statutes; but penal of its improvement highest is of the ... of consular tribunals system than in other their establishment importance, and may desire people our countries, where Christian be essential often commerce, of will pursuit go persons property.” of their protection for the Id., at 480.8 background lively sense of
It is to have important Historians Ross case. on the attempting draw before back as as far rights extraterritorial grants of have traced century in the 12th 13th given by Egypt permission on Tyre establish factories of B. C. to the merchants practice law and to live under their own Nile and persons instances of Numerous other religion. own their foreign lands existed law under their own living Empire during the Roman era and pre-Christian the later Ages Dark and Middle and the so-called —Greeks feeling of the world was the “non-Christian” nations This about Constitution,” on his of the delivered widely “Jubilee shared. George Washington, anniversary inauguration John of the 50th Quincy Adams said: European recognised the law Independence “The Declaration among nations, to nations, practised be that which Christian they bound, they which claimed themselves and of considered system upon principle, the state
rights. This is founded nations, peace. But between a state nature between men and nations, considered the state there was a Mahometan law nations, law of which excluded of nature as a state of war —an Asiatic the state .... foreigners within the territories of from admission all communities, the relations all these different With independent they when had become an were from the time States according operation variously to the of those various nation, modified the United purpose of the Constitution of States It was the laws. Adams, Jubilee of Constitu- them all.” justice to establish over Secretary Fish, Hamilton tion, the views of State 73. See also S., quoted in 351 at 484-485. U.
Egypt, all sorts of in foreigners Rome, inhabitants Christian cities in Byzantine and states Empire, Latin kingdoms Levant, and other Christian cities and states, Byzantine Empire Mohammedans China, and many others their foreign lived lands under own law. origins While the of this juris- extraterritorial may diction have differed in each country, the notion law was for the country benefit the citizens of a and its advantages not for foreigners appears to have been an important Thus, long- factor. there existed established custom of extraterritorial at beginning century of the 15th complete when the con- quest of the Byzantine Empire the Turks and the establishment of the Ottoman Empire substantially political altered relations Europe between Christian the Near East. But commercial relations continued, I 1535 Francis of France negotiated treaty with I of Turkey Suleiman provided extra- numerous rights, territorial including criminal civil jurisdiction over all disputes among subjects. French Ernest Char- riére, Négociations de la le France dans Levant 283. Other nations and eventually United States 8 Stat. later negotiated similar treaties with the (For Turks. a more complete history develop- ment rights extraterritorial and consular jurisdiction see 1 Le Calvo, Droit Théorique Pratique International et (5th ed., id., Rousseau, 1896), 2-18, 2 9-12; Hinckley, American Consular 1-9; Jurisdiction 1 Mil- Orient, titz, Manuel des Consuls passim; Ravndal, Origin of the Capitulations and of the Institution, Consular S. Doc. No. Cong., 5-45, 67th 1st Sess. 56-96; Shih Shun Liu, Extraterritoriality, 23-66, 118 in His- Studies tory, Economics and Public Law, University Columbia (1925); Twiss, The Law of Nations (Rev. ed. 1884), 443-457.) *49 the Europe of the nation-state
The emergence sover- territorial of absolute the doctrine growth of No rights. nature extraterritorial changed the eignty advantages of denied strangers to be longer were the exer- meant sovereignty Indeed, territorial law. local the borders within all residents sovereignty over cise of consular extraterritorial system of state, and the of the nations among Christian to die out jurisdiction tended justification a new centuries. But and 19th the 18th jurisdiction of that found for the continuation was considered justice were systems countries whose those respect to feeling with strong it inferior, and was reflected, as that was Far countries Eastern Moslem opinion. in the Ross seen, have we foreign- all control over China had asserted Until supra, cit. op. territory, Liu, Shih Shun its ers within Britain Opium War, a of the Great result 76-89, but, as whereby she obtained treaty with China negotiated a granted extra- and was open ports five consular offices July 3, 1844, On over her citizens. rights territorial treaty on a behalf Cushing negotiated similar Caleb Secretary In a to 592. letter 8 Stat. the United States. China with “I entered Calhoun, explained: he of State conviction that United States general formed cir- any foreign state, any under concede to ought not to liberty of a citi- cumstances, over the life and States, foreign unless that state of our zen of the United a Christian state.” family nations, word, own —in 495, 496-497. Later treaties Quoted Op. Atty. in 7 Gen. rights States, the extraterritorial continued following article Treaty of 1903 contained and the purpose rights: of those demonstrating having expressed of China “The Government system and strong judicial reform its desire to nations, it that of Western bring into accord with agrees give United States every assistance such reform and will also be prepared relinquish extra- rights territorial when satisfied that state laws, Chinese arrangements for their administra- tion, and doing other considerations it in so.” warrant 33 Stat.
The first treaty with Japan negotiated by was Com- *50 Perry modore in 1854. 11 Stat. 597. opened It two ports, but not provide did for any judicial exercise of powers by United States Treaty officials. Under the 1857, 11 723, Stat. such power given, and later was opened treaties, up further Japanese cities for trade and by residence United States citizens, retained these rights. The treaty of 1894, July 17, effective on 1899, however, ended these rights Japan, extraterritorial and even though a “non-Christian” nation, occupy came to the same status Christian nations. 29 848. The Stat. exercise of criminal jurisdiction by consuls over United States was provided citizens also for, at one time or another, Borneo, 910; treaties with 909, Siam, 10 Stat. II 683, 684; Stat. Madagascar, 15 492; Stat. Samoan Islands, 704; Korea, 20 Stat. 23 Stat. 721; Tonga 25 Islands, 1440, 1442, by Stat. and, virtue of most- clauses, in favored-nation with Tripoli, treaties 8 Stat. 154; Persia, 11 709; 926; Stat. Congo, Stat. and Ethiopia, juris- Stat. 2254. The exercise criminal provided diction was treaty also Morocco, with 100, by 8 Stat. virtue of a most-favored-nation clause and if granting jurisdiction “any virtue a clause . . . . . disputes citizens States . shall any United have The with each other.” word has “disputes” been inter- preted the International Court of compre- Justice to hend disputes. criminal as well as civil France v. United States, Reports 1952, pp. I. C. J. 176, 188-189. The Algiers, 133, 224, Stat. 244; Tunis, treaties 8 Stat. “disputes” similar Muscat, Stat. contained 157; clauses.9 by consuls was defined power exercised judicial sweeping:
statute and was matters and civil criminal “Jurisdiction both in con- exercised and enforced cases, in all shall, are States, which formity laws of the United with the treaties, necessary execute such hereby, far as so carry are suitable respectively, they and so far as all effect, over citizens the same into extended all others countries, in those over States treaties, respec- the terms of to the extent that in all cases where require. or But tively, justify defi- object, or are adapted are not such laws necessary to furnish suitable provisions in the cient equity law of common law and the remedies, the manner over such admiralty be extended like shall if neither countries; citizens and others those admiralty, law, equity nor the law of the common *51 appro- furnish States, the nor the statutes of United in those the ministers remedies, and sufficient priate regula- shall, by decrees countries, respectively, law, supply of such which shall have the force tions 4086. Rev. Stat. § defects and deficiencies.” judi- consuls, then, only The exercised not executive and legislative power but as well. power, cial people subject jurisdiction to the of The number of appears to during periods their most active these courts 856, 1, 1956, approved Law August the President Public On relinquishment by providing the the Presi Cong., Sess., 2d for 84th jurisdic appropriate, the dent, he of consular at such time as deemed only country Morocco, foreign where the tion the States in United jurisdiction. to exercise such States consuls continued United relinquished 6, 1956. was on October 70 Stat. 773. The Times, 1956, p. 1, N. Oct. col. Y.
have been fairly small. Directory the Chronicle & for China, Japan, & the Philippines, year there is listing a just total number of foreign, not States, residents in these three list places. is pages long, total 4,500 persons. of some (Pp. 54-134.) This publication same gives the follow- ing information Japan: about “The number of for- eigners Japan settled in is yet very small. At the year end foreign at community Kana- gawa, principal ports Japan open the three to aliens, consisted .of . . thirty-eight Americans . . . part the latter of 1864 the permanent foreign resi- dents at Kanagawa had increased to 300, counting not soldiers, of which number . . . about Ameri- 80 [were] cans .... At Nagasaki, port Japan second open thrown to foreign trade government, number of alien settlers was as follows on the 1st of Jan- . uary, 1866:— . . American citizens 32 ... . A third port opened European traders, American that of Hakodadi, the north of was Japan, deserted, after lengthened all trial, nearly foreign merchants settled there . . .” p. 353.) . (Appendix, The States- man's Yearbook of 1890 shows: China at the end of 1888: 1,020 (p. 411); Japan Americans 1887: Americans (p. 709); Morocco, 1889 estimate: “The number of small, Christians very exceeding 1,500.” (P. 739.) The Statesman’s Yearbook of 1901 China shows: at (p. end of 1899: 2,335 484); Americans December Japan, 31,1898, just before the termination our extraterritorial rights: 1,165 (p. Americans Morocco: num- 809); “The ber Christians does not 6,000; exceed the Christian population of Tangier probably *52 alone to 5,000.” amounts (P. 851.) figures These of course do not include those temporarily country civilians in the coming within con- jurisdiction. sular in was exercised jurisdiction, then, court
The consular were considered systems at the time legal whose countries in them not be obtained justice could so inferior was based courts these citizens. The existence our justified as the they and were long-established on custom few for the justice securing means for possible best case, The Ross in present those countries. Americans on, very special, con- rests of, out and therefore, arose automati- applied be circumstances, and cannot fined involving hundreds of situation, present to the cally civilized in countries with of American citizens thousands consular If had established systems justice. for non-military procedure trial that or some other courts Article III afforded protections all the did not contain trial of the Fifth and Sixth Amendments abroad, military we dependents personnel civilian analysis of the situation to a detailed would be forced deciding in dependent population abroad the civilian cover such the Ross should be extended to whether case in present to do cases necessary case. It is not here provided the form trial view of our decision that constitutionally justified. cannot be Government, recognizing The the constitu- apparently Ross, has, rehearing, tional basis for the decision on general civilian sought to show that civilians subject dependents particular have been discipline period. order ever since the colonial episodic, meager, materials it has submitted seem too too in history, preceding contempo- basis form a solid framing Constitution, for consti- raneous with on us falls adjudication. urged has been tutional What proving practice far well-established too short —to into the Constitution —of court- to be infused deemed capital certainly cases, over jurisdiction, martial peace. such civilians in time of
65 Harlan, concurring Mr. Justice in the result. I in concur on the that result, ground narrow where capital, (ll)1 offense is Article 2 cannot constitu- tionally applied dependents the trial of civilian members of peace. the armed forces in times overseas I am only
Since among today’s majority one who in the joined opinions 11, 1956, Court’s of June jurisdiction sustained court-martial cases, these 470, U. S. I think appropriate it to state the reasons my which led to voting, first, cases, to rehear these 901, and, now, U. S. jurisdiction. strike down
I.
for
petitions
rehearing which were filed last sum-
mer afforded
opportunity
an
a greater degree
of re-
upon
flection
the difficult issues
involved
these cases
than,
me,
possible
at least for
was
the short interval
between the
argument
decision of the cases
closing days of last
I
Term.2 As
result
became satis-
fied
that this
in any
court-martial
could
event
upon
be sustained
the reasoning
prior opinion.
of our
In essence,
Ross,
reasoning
(1)
was this:
re
Under
Cases,3
U. S.
the Insular
requirement
trial
III
Article
court and the
specific
other
safe-
III
guards
Article
and the Fifth and Sixth Amend-
ments are not applicable to the trial of American citizens
outside the
States;
(2)
United
express
there is thus no
prohibition
constitutional
against
use
of courts-
(11).
1 50
2
S. C.
U.
§ 552
argued May
The cases
3, 1956,
were
on
June
decided on
Bidwell,
v.
244;
Downes
Mankichi,
182 U. S.
Hawaii v.
190 U. S.
197;
Rico,
States,
Dorr v.
138;
195 U. S.
Balzac
Porto
martial “reasonable,” was as these cases such court-martial military, with the women’s connection of these because *54 court-martial process; (4) the due therefore satisfied and I have since constitutional. thus jurisdiction was two sound, not for analysis was that this concluded reasons: prior opinion, it of the underlying premise The
(1) mere the the me, is that under Constitution seems to power, plus against an asserted prohibition aof absence estab- use, enough of its to the abstract reasonableness I this is erroneous. power. of the think lish the existence English of unlike those powers Congress, constitutionally circumscribed. Under Parliament, are powers as are only has such the Constitution implied as reason- that are granted those expressly necessary carry granted powers. to out the ably proper and constitutionality question the statute here the Hence by notions what is reason- tested, must be abstract the speak, statute, “in the so but whether large,” able to instances, reasonably necessary is a and applied as these power granted Con- implementing proper means validity say To that the gress the Constitution. “sovereign may upon the statute be rested the inherent country dealings foreign in its powers” of this ques- me be no more begging nations than the seems validity I see the of this court-martial it, tion. As now jurisdiction depend upon statute, whether the as must justified can be as exercise applied women, to these Congress by Art. power, granted I, § cl. “To make for the Constitution, Rules Government I of the land and naval Forces.” can Regulation find no other constitutional to which this statute I think that properly can be related. therefore we were in considering Term we need wrong last that not decide In my Article I power. opinion the case terms of the us. question squarely confronts interpreting I think we were mistaken in (2) also standing sweeping Insular Cases as Ross III Fifth safeguards that the of Article and the proposition automatically applica- Sixth Amendments have no tion to the trial of American citizens outside no Aside States, matter what circumstances. from questionable mortgaging wisdom future such broad I am satisfied that our pronouncement, prior holding lightly too over the historical context swept upheld which this Court of the old con- I sular territorial courts those cases. shall not my on repeat what brother Frankfurter has written I But I subject, agree. go with which do not far *55 my go as brother Black seems on this score. His to opinion, if I correctly, understand it effect discards Ross and Insular the Cases as historical I anomalies. cases, believe properly understood, that those still have vitality, that, for and reasons suggested later, which differ prior from those given they our an opinions, have important bearing on question the now before us.
II. I come to question then the whether this court-martial justified can be as an of Congress’ exercise I power Article to regulate the armed forces.
At the I outset, cannot the accept implication my of brother opinion that power Article I was Black’s intended by to be unmodified Necessary the and Proper Clause of the Constitution,4 and power that therefore this I, 8, Article provides cl. 18 of the Constitution § power shall have the necessary “to make all Laws which shall be proper carrying foregoing for into the Powers, Execution all other Powers vested this Constitution in the of Government States, any Department the United or in or Officer thereof.” circumstances. changing expansion under incapable is opposite. the fact, quite evidence, shows The historical the Founders indicate that records of the time True, the military But branch. of an unchecked deep shared fear branch unchecked feared was they what arbitrary of use legislature, susceptible I is no evidence know, far there as power.5 executive So power limit the Founders intended to at all that to make such legislature, as in the embodied people, as are naval forces of the land and regulation laws functioning forces. of those necessary proper to the limi any special no indication that words, other there is power Congress, opposed to power on the tation grant executive, was subsumed Hamil Alexander land and naval forces. govern to exactly opposite: ton, indeed, stated to common defense “The authorities essential fleets; armies; equip to build and are these: to raise both; to government rules for the prescribe support. their operations; provide their direct limitation, powers ought These to exist without the extent it impossible because foresee define correspond- or the variety exigencies, national may be variety ent the means which extent and necessary satisfy them. The circumstances and for safety infinite, of nations are endanger the wisely no shackles can this reason constitutional *56 standing army Thus, in times proposals to limit the size of peace specific of to a number of men in Constitution were defeated Convention. See 5 Elliot’s Debates at Constitutional representatives (“no . of the 442-443 room for . . distrust of the Federalist, power people”). No. 24: whole See also The “[T]he raising Legislature, lodged in the Execu armies was popular body, consisting tive; legislature . . . this was to be periodically representatives people of the elected . . . ." Federalist, No. 23. on imposed to care it is com- which the power ought mitted. This to be coextensive with all the possible circumstances; combinations such ought to under the of the coun- direction same appointed preside cils which are over the to common defense.
“. . . Shall guardian the Union be constituted the safety? of the Are common fleets and armies and necessary revenues purpose? to this The govern- ment empowered must be to pass Union all laws, regulations to make all which have relation to them. ...
“Every may we view take the subject, as candid inquirers after will truth, us, serve to convince it is dangerous deny both unwise and the fed- government eral an unconfined authority, as all objects those which are intrusted to its manage- ment. ... A government, constitution of .which renders it unfit to be trusted with all the powers people ought which a free delegate any govern- ment, would be an improper unsafe and depositary of the national interests. Wherever these can with propriety be confided, the powers coincident may safely accompany them.” No less an authority than Chief Justice Marshall, McCulloch Maryland, taught Wheat. has us that the Necessary Proper Clause to be read all the powers of Congress, so that “where the law is not prohibited, and is really calculated any to effect objects entrusted to the government, to undertake here to inquire into the degree its necessity, would be to pass the line which judicial circumscribes department, on legislative Id., to tread ground.” at 423. *57 does, my brother Black say,
I think it no answer to “having the steadfast bulwark up against that run cannot Necessary Proper Clause Rights, Bill of simply 14.” Eor that scope extend the Clause [Art. I] collision, a is such question as whether there begs the myself an I address below. issue to which I down analytical purposes, think it useful to break For questions: First, is there before us into two the issue wives army of these between the trial rational connection make power Congress rules and the court-martial in other forces; the land and naval governance for the if power Second, here at all? words, any there initial is does connection, is a rational to what extent there such reasonably calculated to subserve statute, though limita- express with other power, collide enumerated words, power; in other can this congressional tions on power I looked statute, to the Article appropriate however requirements Article against the isolation, at in survive I recognize Amendments? III and the Fifth Sixth same, ultimately are one and the questions two that these I is power separable scope of Article since the III and the Fifth imposed by limitations Article from the I think it make Amendments. Nevertheless will and Sixth separately. clarity analysis to consider them A. may that we dis- assume, moment, therefore,
I for the Constitution, and limiting provisions of the regard other I viewed, I in isolation. So power examine the Article army wives can of these do not think the courts-martial congressional power. extension of arbitrary be said to be an the Article I historically suggested It unchangeable self- embody rigid was intended to to those apply only it limitation, namely, could *58 in the actual service of the I armed forces.7 cannot agree that any rigid has such content. First of all, the historical presented by evidence the Govern- me ment convinces that, adoption at the time of the Constitution, military thought not was to be rigidly limited to personnel. uniformed The fact is that it was traditional for camp” “retainers to the to be subjected military to discipline, dependents that civilian encamped the armies with traditionally regarded were being class, that concept and that the strictly was not to limited times of war.8 Indeed, British, who are no less sensitive than we to maintaining supremacy recently civil justice, have comparable enacted a law the statute involved here.9
Thinking, do, as I I, taking that Article still it in isola- tion, supplemented by must be viewed as Necessary Proper Clause, I say cannot that the court-martial jurisdiction here has involved no rational with connection power. stated The Government, me, it seems to has sure, be opinion “recognize To might does that there be person circumstances where a could be ‘in’ the armed services purposes I, though formally Clause even he 8] had [Art. § military been inducted into the or did not wear a uniform.” It continues, however, categorically “wives, to state that children dependents and other placed servicemen cannot be in that category . . . .” thought be, The essential element was not so much that there war, be sense, the technical but rather that the forces and their turn, retainers be concept, “in the field.” The latter would seem any military position have extended to area where the nature of the authority military and the absence civil made control over camp appropriate. See, general, whole Blumenthal, Camp Women history Followers of the American Revolution. The British is the See, particular, Samuel, same. Historical Account the British Army Military, pp. and of the Law 691-692. 9Army Act, 1955, II, 18, §209; 3 & Eliz. c. Fifth see Schedule, id., at of civilian the court-martial strong showing
made proper to the has a close connection abroad dependents military con- of our overseas functioning and effective no here the various There is need to detail tingents. have been well dealt connection, of this aspects dissenting opinion my brother Clark. in the these purposes all intents and say it to Suffice military community dependents part are civilian host and must country, are overseas,10 regarded so discipline if the com- subjected to the same *59 prevent is activities which mander to have the his security and effectiveness of jeopardize the would by matter has been well summarized command.11 Eighth Army, the Palmer, Commander General in Japan: stationed over all civilians courts-martial
“Jurisdiction Army is overseas essential because accompanying the personnel S. Armed Forces of manner in which the U. only presence is dependents taken abroad because their These are functioning necessary proper our armies to the morale and deemed pass They government expense, carry transported are at overseas. dependents, ports identifying are admitted to the them as service certificates, visas, military payment and country without use host They army privileges. postal facilities and the benefit receive military. They enjoy exemptions tax customs benefits of the and go hospitals, main at their children schools are treated service they military Government, with the and share tained They provided by are housed recreational facilities Government. water, telephone heat, light, fuel, service and and furnished receiving food, clothing military, transportation, from as well as military sources. peculiarly regard to necessity particularly is acute with This swiftly and “military” which must be dealt with and “local” offenses military security regulations effectively. at these installations Thus servicemen; dependents against as well as civilian must be enforced violations, marketeering, black is true of traffic the same base post-exchange privileges. military customs and misuse In military live their overseas communities. personnel serving almost all in or command, accom- panying sepa- S. Armed Forces live in or near U. closely-knit rate, military U. S. communities which basically are under the administration and control, supervision of the local S. is in U. Commander who responsive turn the normal chain of com- mand. This responsibility which vested in the is military commander extends to the administration supervision of the operation and use of all facili- major ties and community including activities of the the proper occupants control of and users which inherent such supervision overseas. absence of a supporting judicial system responsive government the same as military, as is such existing case the United States and overseas possessions, the law enforcement requirement primarily stems from the immediate unalterable responsibilities of the overseas commander and his subordinate it is commanders, essential that the com- mander be vested with authority the law enforcement commensurate with his responsibilities.” *60 It seems to me clear on such a depend- basis that these ents, when sent overseas the Government, pro become tanto a part of the I community. cannot say, that it therefore, arbitrary is irrational or for Congress to subject them to I military discipline. do not deal now, course, problem with the alternatives court- martial jurisdiction; all that needs to be established at stage that, this is viewing I, Art. cl. 14 in isolation, § subjection of dependents civilian overseas to court-mar- jurisdiction tial can no be wise deemed unrelated to power of Congress all necessary to make proper and laws insure the governance effective of our overseas land and naval forces.
B. the coin. For no matter side of I turn now to the other might reasonable practical how how guar- if the Constitution sustained be, it still cannot be court, an Article III trial in army to these wives a antees provided trial as jury jury by grand with indictment Fifth and Amendments. Sixth what question: to the Ross return, therefore, We apply out- of the Constitution provisions these extent do side United States? can be think it already stated, I I do not that
As have are never of the Constitution safeguards said that these States, regardless operative without hand, I cannot the other particular circumstances. On every of the provision that agree suggestion with the automatically appli- always must deemed Constitution world. every part to American citizens cable important for an For Ross and the Insular Cases do stand necessary one which seems to me wise proposition, course, is, gloss proposition on our Constitution. apply” overseas, not but “does not that Constitution not which do provisions there the Constitution that are every foreign necessarily in all circumstances apply me that the basic In other it seems to place. words, no there and the Insular Cases is that is teaching Ross a condition rigid Congress, and abstract rule overseas, exercising Americans precedent power over Con- subject guarantees must exercise it to all the no what the conditions and considera- stitution, matter guar- a specific tions are that would make adherence to anomalous. To take altogether impracticable antee Rico, one Balzac v. Porto example: but 258 U. S. good proposition jury trials authority *61 for provided need never be American citizens tried abroad; the is good authority United States but the case proposition jury for the that is no rigid there rule that in always provided trial must the trial of an American overseas, if the by jury circumstances are such that trial impractical would be and anomalous. words, other what Ross and the Insular is par- Cases hold setting, practical ticular local necessities, pos- and the question sible are relevant to a alternatives of judgment, namely, trial jury necessary whether should be deemed a condition of Congress’ power provide exercise for the trial of Americans overseas.
I thought think the above is crucial approaching if easy cases before us. adopts Decision is one the con- stricting guarantees view that these constitutional as a totality do or not “apply” do overseas. But, me, question guarantees which is of the Constitution should apply particular view the circumstances, practi- cal possible necessities, Con- alternatives which gress had before it. The question is one of judgment, not of compulsion. And I agree my so with brother that, Cases, view of Ross and the Insular ErankfuRter we have before us a question analogous, ultimately, issues of process; fact, due one can say, ques- that-the tion of specific safeguards of the Constitution are appropriately to be in a applied particular context over- seas can be reduced to the process issue of what is “due” a defendant in particular particular circumstances of a case.
On I basis, agree cannot sweeping proposition full Article III trial, with indictment and trial jury, required every case for the trial of a civilian dependent of a serviceman overseas. The Government, it me, seems to has impressive made an showing that at least for the run-of-the-mill offenses com- by dependents mitted overseas, a requirement such would *62 it have been as would as anomalous impractical be as I Again, in Porto Rico.12 trial for Balzac jury require except beyond stating go details, not into need in my here, which, offenses, such as we have capital I no means by am apply, special considerations opinion, for trial provide Congress’ power to say ready is limited overseas dependents of civilian court-martial Amendments. the Fifth and Sixth III and by Article disciplinary requiring some sort of practical The circumstances supra, pp. These already to, 71-73. been adverted have light weight of the alternatives when viewed in circumstances take on weighing question Congress certainly a crucial available to — guarantees abroad. particular dispensing with constitutional need for try (1) offenses com One is to all are these alternatives? What But the dependents the United States. abroad in mitted civilian way are obvious and over practical problems in the of such a choice every whelming. require transportation for trial of To home regulations security would be petty marketeer or violator black quite prob Government, from the burden on the aside a ridiculous trip preserv the' persuading foreign witnesses to make lems the extreme ing be deemed doubtful in It can further evidence. punishable whether’foreign governments permit under would crimes away States. miles in the United local law to be tried thousands of presents con (2) also trial overseas the United States Civilian problem jury juries required, the If are siderable difficulties. Furthermore, it is indeed doubtful recruitment would difficult. governments foreign to the would accede creation whether some territories— courts within their extraterritorial United States civil by implication the fairness of their own would reflect on courts unpleasantly courts set and which would smack of consular tribunals (3) “capitulations." of trial in up colonial alternative under palatable. Quite courts, instances, is foreign in at some no more least troops where we station aside from the fact that in some countries compare unfavorably granted protections to criminal defendants many standards, the fact would remain that with our own minimum security particularly crimes breaches of —are involved— go foreign completely all, thus would offenses under law at foreign carrying undesirability police unpunished. Add to this abroad, it investigations seems in our installations out does not commend itself. to me clear that this alternative if at Where, all, dividing among line should be drawn capital, cases not need not now be decided. are We con- capital fronted here with offenses and it seems alone; particularly to me now unwise to decide more than we have to. Our foreign far-flung military establishments *63 are a new phenomenon in our national life, and I think it would be unnecessarily unfortunate were we to fore- close, my four do, brothers would our future considera- tion questions of the broad in maintaining involved effectiveness these national outposts, in the light of continuing experience problems. with these far
So as capital cases are I concerned, they think stand on quite a different footing than other offenses. In such cases the law especially sensitive to demands for procedural that fairness which inheres a civilian trial where judge and trier of responsive fact are not the command of the convening authority. I do not con- cede that process whatever is “due” an offender faced with a fine a prison sentence necessarily require- satisfies the ments of in a the Constitution capital case. The distinc- by no Alabama, tion is means novel, compare Powell v. S.U. with Betts v. Brady, 455; U. S. nor is negligible, it being literally that between life and death. And, I under what deem to be the correct view of Ross Cases, and the precisely Insular it is kind of distinction plays large role in process of weighing the competing considerations which lead to judgment sound upon question safeguards whether certain of the Con- given stitution should effect the trial of an American citizen In fact, abroad. the Government itself has con- grave ceded that one offense, presents treason, a special gravity case: “The this offense is such that we can that, well assume may whatever difficulties be involved far trial from the scene of the . offense . . the trial in our I should be courts.” see no reason for not apply- ing principle any the same case where a civilian The number life itself. pain of stands trial on
dependent negligible so to be appear would of such cases a civilian affording defendant practical problems problems. insuperable present trial would in these in the result ground I concur this narrow On cases. Burton Clark, Mr. Justice whom with
Mr. Justice dissenting. joins, prosecution from today women releases two
The Court killed their they brutally though the evidence shows stationed soldiers, while both American husbands, on its armed forces furnished our quarters them turning these lands. foreign installations in important free, it declares unconstitutional women armed forces. our Congress governing of an Act of section over- specifically my four of brothers would Furthermore, *64 vitality of long-recognized impair and two would rule law, the case respected precedent our an old and Ross, with In re this Court (1891), cited U. S. as 1929 a unan- as late many opinions approval Corp., in Ex Bakelite 438, parte U. S. Court1 imous aside, and over- finally, reverses, sets And, the Court of this Court majority opinions judgments rules two reported in at 470 and cases, S., 351.U. these same In ago. months 11,1956, entered on June less than for the opinion therefor it enters no whatever substitute majority. there Instead, It to muster a Court. is unable all, it But, worst of opinions. are handed down three if anything, gives guidance what, no authoritative Congress remedy the dis- may or the do the Executive they now find themselves. tressing situation Associate composed Chief Taft and 1 The Court was Justice Brandéis, Sutherland, McReynolds, Devanter, Holmes, Van Justices wrote the Sanford, Mr. Van Devanter Butler, and Stone. Justice opinion for the Court. and I remain convinced
MR. Justice Burton opinions former of the Court are they correct and that set forth valid constitutional doctrine under the long-recog- nized cases of this opinions Court. The were neither written nor to in agreed they haste and reflect the con- sensus the majority reached after thorough discus- many sion at fact, conferences. the cases were here longer both before and argument after than many of the cases we decide. adhere to the expressed We views there since we are convinced through them we were neither “mortgaging future,” claimed, as is nor foreclosing the present, as the judgment today. does do not We include a theory discussion of the upon which those judgments former were entered because we are satisfied with its handling in the opinions. earlier S., See 351 U. at 470 and 487.
I. power Before discussing Congress under Art. I, cl. § of the Constitution it is well to take our bearings. These cases do not involve the of a military court-martial sitting within the territorial limits of the United States. Nor are they concerned with the power of the Government make or legal treaties relationship between treaties and the Nor Constitution. they are concerned provide for the trial of sojourning, Americans touring, tem- porarily residing foreign nations. Essentially, we are *65 to determine only whether dependents civilian of American may servicemen constitutionally be tried an American in a foreign court-martial country for an offense committed in that country. Congress pro- has 2 of (11) vided Article the Uniform of Military Code Justice, 64 50 Stat. S. C. 552 (11), U. they § shall be so tried those countries with which we an have treaty. implementing question therefore is whether of to reasonably related is enactment this Regu- Government for the make Rules “To Congress I, Art. Const., S. naval Forces.” U. of the land lation 8,§ cl. jurisdic- always exercised military has
Historically, armies accompanying civilians over tion court-martial jurisdiction was years ago Over 40 in time of war. accompany- persons “all to include by Congress declared of the United States the armies ing serving of the States.” jurisdiction the territorial without 2 (11) of the 651. Article (d), 39 Stat. Art. of War taken with- Military Justice was present Uniform Code of the Articles provision change from this out material earlier provision At the time enactment War. the maintenance concerned with plainly was forces expeditionary American and morale of discipline As personnel. military and civilian composed of both Sixty-fourth to the pointed Report out the Senate adopted: (d) was Congress at time Article in that are further defective existing “The articles disciplining of these three they permit do in time camp peace places classes followers jurisdiction to civil of the United States which the contrary it is interna- not extend and where does to the local policy subject persons tional such jurisdiction, or for other the law where, reasons, leaving not applicable, the local thus practically liability punish- these without classes ment for their unlawful acts under such circum- . as, for . . so example, where such forces stances — interesting juris An and authoritative treatment of court-martial camp Blumenthal, Camp diction over is found followers Women (1952). points many Followers of the American Revolution It out subjected women, services, instances where not in the armed were long to a court-martial after war had ended. This was not taken either in our “astronomical doctrine” forces or abroad. *66 accompanied engaged are in the occupa- nonhostile of foreign tion as territory, during was the case in Rep. intervention of 1906-7 Cuba.” S. No. Cong., 64th 1st Sess. 37-38. power
Since that time the
Congress
to make civilians
military
amenable to
jurisdiction under such circum
stances has been considered and sustained by this Court
and other federal
courts
a
In
number of cases.
Mad
Kinsella,
sen v.
It is contended that no holding
validity
on the
of court-
jurisdiction
martial
over
necessary
civilians was
to our
decision Madsen and that
distinguish-
the case itself is
able
occupied
because
territory was involved and hence
action of
could
supported
under the
War Power.
It is true that our reference to concurrent
court-martial
petitioner
both
and the
—when
agreed
Government
it—was
concomitant
to that
but
decision,
our recognition
of Congress
authorize
trial of civilians under the circum-
provided
stances
2 (d)
Article
was essential to the
judgment.
S., at 361.
factually very
U.
Madsen was
similar
present
case,
and in terms of the relevant
considerations
it
involved
is practically indistinguishable.
In Madsen,
here,
the crime involved was murder of a
dependent
serviceman
living
wife
as a civilian with
*67
In
cases
country.
both
foreign
in a
our armed forces
pursuant
by military
tribunal
jurisdiction
exercised
was
over
Congress authorizing
jurisdiction
such
an Act
armed forces outside
persons accompanying
all
The distinc-
of the
States.
jurisdiction
territorial
and
the trial was
court-martial
tion
in one case
that
military
is insubstantial.
in
other
commission
in
jurisdiction could be sustained
contention
this
Congress but that
Madsen under the War Power
jurisdiction in Smith
power is
to authorize
unavailable
this
fact that
merit.3 Aside from the
without
is likewise
narrowly the action
so
has never restricted
Court
Ashwander
Power,
see
Congress might take under War
A.,
and Silesian-American
(1936),
T.
83
power
military”
over persons
exercise
directly
forces,
connected with the armed
and this
has
repeatedly recognized
been
cases decided
Mobley
lower federal courts. See
ex
United States
rel.
v.
Handy,
States,
176 F.
(1949);
2d 491
Perlstein v. United
France,
151
(1945);
F. 2d 167
Supp.
Grewe v.
75 F.
433
Berue,
(1948);
54 F. Supp.
(1944);
re
Hines v.
Mikell,
Jochen,
259 F.
(1919);
Ex
257 F.
parte
Falls,
(1919); Ex
251 F.
parte
(1918);
parte
Ex
Gerlach,
(1917).
In considering whether *68 2 (11) reasonably Article is necessary to the power provide of for the government land note, and naval we rele- the forces vant, certain other considerations. As a nation we have it necessary preservation found to the security our in day present foreign maintain American forces in 63 throughout years countries world. recent recognized presence services have of wives and many families at of these foreign bases is essential policy maintenance of the morale of our This forces. has legislative approval received and the expense tremendous to the transportation Government involved and dependents accommodation overseas is considered spent. well money It not for to question us joint legislative and executive determination. The re- sult, however, has been the creation of com- American munities of military mixed civilian and on population military throughout bases the world. These civilians are dependent military food, on the for housing, medical facil- ities, transportation, protection. and they Often live daily closely association groups nearly knit isolated surroundings. from their It cannot be denied that dis- ciplinary problems have multiplied been complicated by this influx of bases, civilians onto military and Con- gress provided has personnel and civilians the same law administered governed
alike shall be the same courts. under such of civilian activities
Concerning the effect armed discipline and morale circumstances on the than that no better statement have found services, we Military Court States Judge Latimer of constitutionality (11) of Article was Appeals where the Burney, United States upheld in case of the recent Referring 21 M. (1956). M. A. C. R. S. C. U. Judge command, readiness of an overseas to the combat stated: Latimer
“ trans- black market readily t is ascertainable that [I] habit-forming drugs, unlawful actions, trafficking relations, currency promotion of illicit sex circulation, may perpe- a crimes which myriad of other one persons closely connected with trated on impact forceful services, could direct and have One efficiency discipline of the command. transacted only view the volume business need the sale by military involving, instance, courts East, use of narcotics the Far to be shocked previous the truth of the state- into realization of no their ment. If the Services have within *69 offender, system punish type then own to military crime between indeed overseas civilians amongst will and that civilians personnel flourish A few civilians will thrive unabated and untouched. communities plying military an unlawful trade fail, impair discipline and combat can, without prose- of a unit. At the detection best, readiness time-consuming crime is a difficult and cution of that, faraway grave and we have business, doubts help lands, foreign governments will the cause military by investigating commander the seller a him in habit-forming drugs, user of or assist de- from terring stealing American civilians from their compatriots, misusing or their or from Government, its M. at 21 C. M. property.” A., R., 6 U. S. C. at 122.
In addition,
military
it is
to provide
reasonable
that the
commander
responsibility
who bears full
for the care and
safety of those civilians attached to his command should
authority
Moreover,
also have
regulate
their conduct.
all
contingent
members of an
equal
overseas
should receive
treatment before the law.
In their
day-to-day
actual
liv-
they
a
ing
part
are
of the same
unique communities,
legal
the same
considerations should apply to all. There
is no reason for
one
according to
class
different treat-
ment than
is accorded
another.
effect
such
double standard on discipline, efficiency, and morale can
easily be seen.
Quarles,
United States ex rel.
Toth
(1955), recognized necessity. I, Court There Art. cl. “given § was its meaning” natural “would seem to restrict court-martial persons who actually are or part members (Em- armed forces.” phasis added.) Id., at 15. The to say: Court went on
“It impossible is to think that discipline Army going be disrupted, impaired, its morale or its orderly processes by giving ex-serv- disturbed, icemen they the benefit of a civilian when court trial are actually jurisdic- . . . civilians. Court-martial tion sprang from the belief that within the ranks ready-at-hand there is need for a prompt, means of compelling Army obedience and order. But dis- cipline will be improved by court-martialing rather trying than by jury some civilian ex-soldier who has been wholly separated from the service for years months, or perhaps Consequently decades. discipline considerations of *70 provide no excuse new expense at the of court-martial expansion system constitutionally preferable normal and of the Id., at 22-23. jury.” by of trial “a of the part” as much were women These by an Upon attack husbands. were their installation foreign governments all treated; so enemy they would it addition, has and, times; at all them recognized so Toth, discipline that “the shown, unlike in clearly been impaired, its morale Army going disrupted, to be of the is them excluding disturbed” orderly processes its single Every Code. Uniform provisions from the the world major military commanders over of our one case. We effect this to this has filed statement necessity for as to this our views not substitute should of the responsibility charged of those the views world. outposts of the free far-flung of such protection underlying however, repudiates this minority, The former Toth, discipli- that where namely, opinion basis regulation of the necessary to the nary measures are have constitutional Congress does armed forces made are my the rules it has opinion to make rules. regulation of the land and naval forces necessary to the in no Code, way is chosen, the means Uniform unreasonable one. consideration whether this There remains further “ the end possible power adequate is ‘the least provision ” Quarles, supra, rel. Toth v.
proposed.’ United States ex 23. This we determine at strict standard power Congress to authorize scope of constitutional clearly study A problem trial court-martial. Mili- the use of the Uniform Code of indicates really only alternative tary practicable Justice was available. it was before Court that
While conceded system could of territorial or consular have established *71 try .dependents courts to offenses committed civilian my of four abroad, the action brothers who would over- Ross, impair vitality rule and re two who would supra, places jeopardy. this alternative Territorial courts our a have been used Government for over century always and have received the sanction of this today. Court However, light until of all of the opinions of the minority here, system former the use of a of territorial or question. consular courts is now out of the Moreover, Congress probably had concluded to abandon system adopted, before Uniform Code was since time short thereafter the last our territorial consular courts was terminated. 70 Stat. Another might alternative the Congress adopted have was the establishment of pursuant federal courts Article III of the Constitution. These constitutional courts would have to sit foreign each the 63 coun- tries where American troops are present stationed at the time. Aside from the fact the Constitution has never interpreted been compel an undertaking, such it would seem obvious that it would manifestly impos- problem sible. The juries of the use of in common-law countries alone suffices to illustrate Obviously this. jury could not be limited to those who live within the military installation. To permit this would abe sham. juryA made up military personnel would be tanta- mount personnel aof court-martial to which the former minority objects. A jury composed of civilians residing on the military installation is subject to the same If criticism. jury is from among selected the local populace, how would the foreign citizens be forced to attend the trial? perchance And if they did attend, lan- guage barriers in non-English-speaking countries would be nigh insurmountable. I Personally, would pre- much fer, as did Madsen, Mrs. that my case be tried before a countrymen. Moreover, my own
military court-martial foreign agreement remember we must any American court be obtained before country must countries, In noncommon-law territory. could sit in its pos- sit —a doubtful permitted if were such courts like about be tossed system would sibility jury —our *72 on waters. cork unsettled in III by an Article court trial of offenders
Likewise, equally is cases, in some workable country, perhaps The problem. to the general as a solution impracticable opera- involving black-market cases petty hundreds of hardly be could immorality, like, and the tions, narcotics, Congress and if the even brought prosecution here procedure. authorized such foreign nation involved the military of of the time from tremendous waste Aside the the as well as disruptions, personnel and the resultant necessary bring witnesses expenditure money large States, effect the deterrent and evidence to the United delay be nil because of prosecution would com- Furthermore, it be held. distance which would at. justice. any system is an essential to pulsory process at a as witnesses foreign nationals The attendance only on a country ih this could rest judicial proceeding required. depositions could be voluntary basis attendance could international law such As-a matter of proceeding the court such a compelled never be element its to control this vital powerless would be only result this solution could procedure. short, judicial authority of American practical abdication by American civilians most of the offenses committed over foreign countries. alterna- remaining probably the only alternative — now forced to choose—is that will be tive soil be committing foreign on offenses Americans in which the offense country tried the courts jurisdiction Foreign courts have exclusive committed. the principles under of international many law and na- tions enjoy concurrent jurisdiction with the American military pursuant authorities to Article Agree- VII ment Regarding Status of Forces of Parties to the North Treaty.4 Atlantic military Where the American author- ities do have only it is jurisdiction, agreement mutual foreign sovereign concerned and pursuant carefully agreements drawn on conditioned trial military American authorities. Typical agree- these ments was the one concluded between the United States Japan February 28, on 1952, and force at the time one of these cases arose. this and like agreements, Under so to the ceded United States surely courts if will withdrawn are services impotent to exercise it. It is clear trial before American court-martial in which the fundamentals due process preferable observed is leaving are American *73 servicemen and their to dependents widely varying justice standards of foreign throughout courts world. Under these circumstances it is untenable to say Congress could have exercised a lesser adequate the end proposed.
I—I 1—1 My brothers who are concurring in the result seem to find some for present comfort an they void Act Congress only capital as to I cases. find no distinc- tion in the Constitution capital between and other cases. In fact, argument at parties all admitted there could be no valid My difference. brothers are careful not to say that they uphold would the Act as to offenses less than capital. They unfortunately leave that decision Agreement, NATO Status of (signed Forces T. I. A. S. 2846 July 19, 1951), London on S. Treaties U. and Other International Agreements 1792. admin- judicial proper This is disastrous day.
another Congress The enforcement. as to law as well istration to know are entitled Department the Executive constitutionally utilized may be a court-martial whether If then all that capital. so, than an offense less try punishment insofar capital necessary eliminate is to regret I deeply are concerned. (11) offenses Article that it has become minority not, does now former that the that circumstance duty perform high majority, are left the Executive Both requires. “sack” they should as to whether conjecture only to to return and require dependents all (11) Article capital simply eliminate country or remain within this under Article. from all offenses punishment former and cer- may prevent troops of our morale prohibits this Court latter. tainly the abstention of of our soldiers dependents is for the All that remains prospect not foreign courts, unhappy prosecuted them but for all of us. only for