Reid v. Covert (354 U.S. 1)/Opinion of the Court

by Hugo Black

MR. JUSTICE BLACK announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE BRENNAN join.

These cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States, thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights. These cases are particularly significant because, for the first time since the adoption of the Constitution, wives of soldiers have been denied trial by jury in a court of law and forced to trial before courts-martial.

In No. 701, Mrs. Clarice Covert killed her husband, a sergeant in the United States Air Force, at an airbase in England. Mrs. Covert, who was not a member of the armed services, was residing on the base with her husband at the time. She was tried by a court-martial for murder under Article 118 of the Uniform Code of Military Justice (UCMJ). ^[1] The trial was on charges preferred by Air Force personnel, and the court-martial was composed of Air Force officers. The court-martial asserted jurisdiction over Mrs. Covert under Article 2(11) of the UCMJ, ^[2] which provides:

The following persons are subject to this code:

• * * *

(11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, [p4] all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States. . . .

Counsel for Mrs. Covert contended that she was insane at the time she killed her husband, but the military tribunal found her guilty of murder and sentenced her to life imprisonment. The judgment was affirmed by the Air Force Board of Review, 16 CMR 465, but was reversed by the Court of Military Appeals, 6 U.S.C.M.A 48, because of prejudicial errors concerning the defense of insanity. While Mrs. Covert was being held in this country pending a proposed retrial by court-martial in the District of Columbia, her counsel petitioned the District Court for a writ of habeas corpus to set her free on the ground that the Constitution forbade her trial by military authorities. Construing this Court's decision in United States ex rel. Toth v. Quarles, 350 U.S. 11, as holding that "a civilian is entitled to a civilian trial," the District Court held that Mrs. Covert could not be tried by court-martial, and ordered her released from custody. The Government appealed directly to this Court under 28 U.S.C. § 1252. See 350 U.S. 985.

In No. 713, Mrs. Dorothy Smith killed her husband, an Army officer, at a post in Japan where she was living with him. She was tried for murder by a court-martial and, despite considerable evidence that she was insane, was found guilty and sentenced to life imprisonment. The judgment was approved by the Army Board of Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals, 5 U.S.C.MA 314. Mrs. Smith was then confined in a federal penitentiary in West Virginia. Her father, respondent here, filed a petition for habeas corpus in a District Court for West Virginia. The petition charged that the court-martial was without jurisdiction because Article 2(11) of the UCMJ was unconstitutional insofar as it authorized the trial of civilian dependents accompanying [p5] servicemen overseas. The District Court refused to issue the writ, 137 F.Supp. 806, and, while an appeal was pending in the Court of Appeals for the Fourth Circuit, we granted certiorari at the request of the Government, 350 U.S. 986.

The two cases were consolidated and argued last Term, and a majority of the Court, with three Justices dissenting and one reserving opinion, held that military trial of Mrs. Smith and Mrs. Covert for their alleged offenses was constitutional. 351 U.S. 470, 487. The majority held that the provisions of Article III and the Fifth and Sixth Amendments which require that crimes be tried by a jury after indictment by a grand jury did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there, and that Congress could provide for the trial of such offenses in any manner it saw fit, so long as the procedures established were reasonable and consonant with due process. The opinion then went on to express the view that military trials, as now practiced, were not unreasonable or arbitrary when applied to dependents accompanying members of the armed forces overseas. In reaching their conclusion, the majority found it unnecessary to consider the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces" under Article I of the Constitution.

Subsequently, the Court granted a petition for rehearing, 352 U.S. 901. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities.

I

At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely [p6] a creature of the Constitution. ^[3] Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. ^[4] When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later, an English historian wrote:

In a Settled Colony, the inhabitants have all the rights of Englishmen. They take with them, in the first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony. But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this country. ^[5]

The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone; they have been jealously preserved from the encroachments [p7] of Government by express provisions of our written Constitution. ^[6]

Among those provisions, Art. III, § 2 and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The Fifth Amendment declares:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . .

And the Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . .

The language of Art. III, § 2 manifests that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. After declaring that all criminal trials must be by jury, the section states that, when a crime is "not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." If [p8] this language is permitted to have its obvious meaning, ^[7] § 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held. ^[8] From the very first Congress, federal statutes have implemented the provisions of § 2 by providing for trial of murder and other crimes committed outside the jurisdiction of any State "in the district where the offender is apprehended, or into which he may first be brought." ^[9] The Fifth and Sixth Amendments, like Art. III, § 2, are also all inclusive with their sweeping references to "no person" and to "all criminal prosecutions."

This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States. ^[10] While it has been suggested that only [p9] those constitutional rights which are "fundamental" protect Americans abroad, ^[11] we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of "Thou shalt nots" which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right. ^[12] As Blackstone wrote in his Commentaries:

. . . the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! . . . [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his [p10] liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. ^[13]

Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.

The keystone of supporting authorities mustered by the Court's opinion last June to justify its holding that Art. III, § 2, and the Fifth and Sixth Amendments did not apply abroad was In re Ross, 140 U.S. 453. The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship's officer, was seized and tried before a consular "court" in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other "non-Christian" countries. ^[14] These [p11] statutes provided that the laws of the United States were to govern the trial except:

. . . where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries, and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies. ^[15]

The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the "non-Christian" countries to which the statutes applied. Under these statutes, consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and, after conviction, take away their liberty or their life — sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person, or even in one branch of the Government, is ordinarily regarded as the very acme of absolutism. ^[16] Nevertheless, the Court sustained Ross' conviction by the consul. It stated that constitutional [p12] protections applied "only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad." ^[17] Despite the fact that it upheld Ross' conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that "[t]he Constitution can have no operation in another country." ^[18]

The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases. ^[19] That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad. ^[20] Thus, the Ross case rested, at least in substantial part, on a fundamental misconception, and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans. ^[21] We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era.

The Court's opinion last Term also relied on the "Insular Cases" to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable [p13] to the trial of Mrs. Smith and Mrs. Covert. ^[22] We believe that reliance was misplaced. The "Insular Cases," which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, § 3, ^[23] had entirely different cultures and customs from those of this country. This Court, although closely divided, ^[24] ruled that certain constitutional safeguards were not applicable to these territories since they had not been "expressly or impliedly incorporated" into the Union by Congress. While conceding that "fundamental" constitutional rights applied everywhere, ^[25] the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions. ^[26] [p14]

The "Insular Cases" can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. ^[27] But we have no authority, or inclination, to read exceptions into it which are not there. ^[28] [p15]

II

At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. ^[29] For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith [p16] killed her husband. ^[30] Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the Supremacy Clause of the Constitution, declares:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [p17] War, would remain in effect. ^[31] It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. ^[32] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government, and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. ^[33] For example, in Geofroy v. Riggs, 133 U.S. 258, 267, it declared:

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [p18] government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.

This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. ^[34] It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

There is nothing in Missouri v. Holland, 252 U.S. 416, which is contrary to the position taken here. There, the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment, which reserves to the States or the people all power not delegated to the National Government. To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government, and the Tenth Amendment is no barrier. ^[35]

In summary, we conclude that the Constitution in its entirety applied to the trials of Mrs. Smith and Mrs. [p19] Covert. Since their court-martial did not meet the requirements of Art. III, § 2 or the Fifth and Sixth Amendments, we are compelled to determine if there is anything within the Constitution which authorizes the 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 as provided by the Constitution, and permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights. ^[36] But if the language of Clause 14 is given its natural meaning, ^[37] the power granted does not extend to civilians—even though they may be dependents living with servicemen on a military base. ^[38] The term "land and naval Forces" refers to persons [p20] who are members of the armed services and not to their civilian wives, children and other dependents. It seems inconceivable that Mrs. Covert or Mrs. Smith could have been tried by military authorities as members of the "land and naval Forces" had they been living on a military post in this country. Yet this constitutional term surely has the same meaning everywhere. The wives of servicemen are no more members of the "land and naval Forces" when living at a military post in England or Japan than when living at a base in this country or in Hawaii or Alaska.

The Government argues that the Necessary and Proper Clause, when taken in conjunction with Clause 14, allows Congress to authorize the trial of Mrs. Smith and Mrs. Covert by military tribunals and under military law. The Government claims that the two clauses together constitute a broad grant of power "without limitation" authorizing Congress to subject all persons, civilians and soldiers alike, to military trial if "necessary and proper" to govern and regulate the land and naval forces. It was on a similar theory that Congress once went to the extreme of subjecting persons who made contracts with the military to court-martial jurisdiction with respect to frauds related to such contracts. ^[39] In the only judicial test, a Circuit Court held that the legislation was patently unconstitutional. Ex parte Henderson, 11 Fed.Cas. 1067, No. 6,349.

It is true that the Constitution expressly grants Congress power to make all rules necessary and proper to govern and regulate those persons who are serving in the "land and naval Forces." But the Necessary and Proper [p21] Clause cannot operate to extend military jurisdiction to any group of persons beyond that class described in Clause 14—"the land and naval Forces." Under the grand design of the Constitution, civilian courts are the normal repositories of power to try persons charged with crimes against the United States. And to protect persons brought before these courts, Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury, and a number of other specific safeguards. By way of contrast, the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. ^[40] Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of Clause 14.

Nothing said here contravenes the rule laid down in McCulloch v. Maryland, 4 Wheat. 316, at 421, that:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. [p22]

In McCulloch, this Court was confronted with the problem of determining the scope of the Necessary and Proper Clause in a situation where no specific restraints on governmental power stood in the way. Here, the problem is different. Not only does Clause 14, by its terms, limit military jurisdiction to members of the "land and naval Forces," but Art. III, § 2 and the Fifth and Sixth Amendments require that certain express safeguards, which were designed to protect persons from oppressive governmental practices, shall be given in criminal prosecutions—safeguards which cannot be given in a military trial. In the light of these as well as other constitutional provisions, and the historical background in which they were formed, military trial of civilians is inconsistent with both the "letter and spirit of the constitution."

Further light is reflected on the scope of Clause 14 by the Fifth Amendment. That Amendment, which was adopted shortly after the Constitution, reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; . . .

(Emphasis added.) Since the exception in this Amendment for "cases arising in the land or naval forces" was undoubtedly designed to correlate with the power granted Congress to provide for the "Government and Regulation" of the armed services, it is a persuasive and reliable indication that the authority conferred by Clause 14 does not encompass persons who cannot fairly be said to be "in" the military service.

Even if it were possible, we need not attempt here to precisely define the boundary between "civilians" and members of the "land and naval Forces." We recognize [p23] that there might be circumstances where a person could be "in" the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. But the wives, children and other dependents of servicemen cannot be placed in that category, even though they may be accompanying a serviceman abroad at Government expense and receiving other benefits from the Government. ^[41] We have no difficulty in saying that such persons 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 the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution. The idea that the relatives of soldiers could be denied a jury trial in a court of law, and instead be tried by court-martial under the guise of regulating the armed forces, would have seemed incredible to those men, in whose lifetime the right of the military to try soldiers for any offenses in time of peace had only been grudgingly conceded. ^[42] The Founders envisioned the [p24] army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders. ^[43] They were familiar with the history of Seventeenth Century England, where Charles I tried to govern through the army and without Parliament. During this attempt, contrary to the Common Law, he used courts-martial to try soldiers for certain non-military offenses. ^[44] [p25] This court-martialing of soldiers in peacetime evoked strong protests from Parliament. ^[45] The reign of Charles I was followed by the rigorous military rule of Oliver Cromwell. Later, James II used the Army in his fight [p26] against Parliament and the people. He promulgated Articles of War (strangely enough relied on in the Government's brief) authorizing the trial of soldiers for non-military crimes by courts-martial. ^[46] This action hastened the revolution that brought William and Mary to the throne upon their agreement to abide by a Bill of Rights which, among other things, protected the right of trial by jury. ^[47] It was against this general background that two of the greatest English jurists, Lord Chief Justice Hale and Sir William Blackstone—men who exerted considerable influence on the Founders—expressed sharp hostility to any expansion of the jurisdiction of military courts. For instance, Blackstone went so far as to assert:

For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged, rather than allowed as a law. The necessity of order and discipline in an army is the only thing which can give it countenance; [p27] and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land. ^[48]

The generation that adopted the Constitution did not distrust the military because of past history alone. Within their own lives, they had seen royal governors sometimes resort to military rule. British troops were quartered in Boston at various times from 1768 until the outbreak of the Revolutionary War to support unpopular royal governors and to intimidate the local populace. The trial of soldiers by courts-martial and the interference of the military with the civil courts aroused great anxiety and antagonism not only in Massachusetts, but throughout the colonies. For example, Samuel Adams in 1768 wrote:

. . . [I]s it not enough for us to have seen soldiers and mariners forejudged of life, and executed within the body of the county by martial law? Are citizens [p28] to be called upon, threatened, ill-used at the will of the soldiery, and put under arrest, by pretext of the law military, in breach of the fundamental rights of subjects, and contrary to the law and franchise of the land? . . . Will the spirits of people as yet unsubdued by tyranny, unawed by the menaces of arbitrary power, submit to be governed by military force? No, Let us rouse our attention to the common law—which is our birthright, our great security against all kinds of insult and oppression. . . . ^[49]

Colonials had also seen the right to trial by jury subverted by acts of Parliament which authorized courts of admiralty to try alleged violations of the unpopular [p29] "Molasses" and "Navigation" Acts. ^[50] This gave the admiralty courts jurisdiction over offenses historically triable only by a jury in a court of law, and aroused great resentment throughout the colonies. ^[51] As early as 1765, delegates from nine colonies meeting in New York asserted in a "Declaration of Rights" that trial by jury was the "inherent and invaluable" right of every citizen in the colonies. ^[52]

With this background, it is not surprising that the Declaration of Independence protested that George III had "affected to render the Military independent of and superior to the Civil Power," and that Americans had been deprived in many cases of "the benefits of Trial by Jury." ^[53] And those who adopted the Constitution embodied their profound fear and distrust of military power, as well as their determination to protect trial by jury, in the Constitution and its Amendments. ^[54] Perhaps they [p30] were aware that memories fade, and hoped that, in this way, they could keep the people of this Nation from having to fight again and again the same old battles for individual freedom.

In light of this history, it seems clear that the Founders had no intention to permit the trial of civilians in military courts, where they would be denied jury trials and other constitutional protections, merely by giving Congress the power to make rules which were "necessary and proper" for the regulation of the "land and naval Forces." Such a latitudinarian interpretation of these clauses would be at war with the well established purpose of the Founders to keep the military strictly within its proper sphere, subordinate to civil authority. The Constitution does not say that Congress can regulate

the land and naval Forces and all other persons whose regulation might have some relationship to maintenance of the land and naval Forces.

There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over nonmilitary America.

On several occasions, this Court has been faced with an attempted expansion of the jurisdiction of military courts. Ex parte Milligan, 4 Wall. 2, one of the great landmarks in this Court's history, held that military authorities were without power to try civilians not in the military or naval service by declaring martial law in an area where the civil [p31] administration was not deposed and the courts were not closed. ^[55] In a stirring passage, the Court proclaimed:

Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution, and judicial decision has been often invoked to settle their true meaning; but, until recently, no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right—one of the most valuable in a free country—is preserved to everyone accused of crime who is not attached to the army, or navy, or militia in actual service. ^[56]

In Duncan v. Kahanamoku, 327 U.S. 304, the Court reasserted the principles enunciated in Ex parte Milligan and reaffirmed the tradition of military subordination to civil authorities and institutions. It refused to sanction the military trial of civilians in Hawaii during wartime despite government claims that the needs of defense made martial law imperative.

Just last Term, this Court held in United States ex rel. Toth v. Quarles, 350 U.S. 11, that military courts could not constitutionally try a discharged serviceman for an offense which he had allegedly committed while in the armed forces. It was decided (1) that, since Toth was a civilian, he could not be tried by military court-martial, ^[57] [p32] and (2) that, since he was charged with murder, a "crime" in the constitutional sense, he was entitled to indictment by a grand jury, jury trial, and the other protections contained in Art. III, § 2 and the Fifth, Sixth, and Eighth Amendments. The Court pointed out that trial by civilian courts was the rule for persons who were not members of the armed forces.

There are no supportable grounds upon which to distinguish the Toth case from the present cases. Toth, Mrs. Covert, and Mrs. Smith were all civilians. All three were American citizens. All three were tried for murder. All three alleged crimes were committed in a foreign country. The only differences were: (1) Toth was an ex-serviceman while they were wives of soldiers; (2) Toth was arrested in the United States, while they were seized in foreign countries. If anything, Toth had closer connection with the military than the two women, for his crime was committed while he was actually serving in the Air Force. Mrs. Covert and Mrs. Smith had never been members of the army, had never been employed by the army, had never served in the army in any capacity. The Government appropriately argued in Toth that the constitutional basis for court-martialing him was clearer than for court-martialing wives who are accompanying their husbands abroad. ^[58] Certainly Toth's conduct as a soldier bears a closer relation to the maintenance of order and discipline in the armed forces than the conduct of these wives. The fact that Toth was arrested here, while the [p33] wives were arrested in foreign countries is material only if constitutional safeguards do not shield a citizen abroad when the Government exercises its power over him. As we have said before, such a view of the Constitution is erroneous. The mere fact that these women had gone overseas with their husbands should not reduce the protection the Constitution gives them.

The Milligan, Duncan, and Toth cases recognized and manifested the deeply rooted and ancient opposition in this country to the extension of military control over civilians. In each instance an effort to expand the jurisdiction of military courts to civilians was repulsed.

There have been a number of decisions in the lower federal courts which have upheld military trial of civilians performing services for the armed forces "in the field" during time of war. ^[59] To the extent that these cases can be justified, insofar as they involved trial of persons who were not "members" of the armed forces, they must rest on the Government's "war powers." In the face of an actively hostile enemy, military commanders necessarily have broad power over persons on the battlefront. From a time prior to the adoption of the Constitution, the extraordinary circumstances present in an area of actual fighting have been considered sufficient to permit punishment of some civilians in that area by military courts under military rules. ^[60] But neither Japan [p34] nor Great Britain could properly be said to be an area where active hostilities were under way at the time Mrs. Smith and Mrs. Covert committed their offenses or at the time they were tried. ^[61]

The Government urges that the concept "in the field" should be broadened to reach dependents accompanying the military forces overseas under the conditions of world tension which exist at the present time. It points out how the "war powers" include authority to prepare defenses and to establish our military forces in defensive posture about the world. While we recognize that the "war powers" of the Congress and the Executive are [p35] broad, ^[62] we reject the Government's argument that present threats to peace permit military trial of civilians accompanying the armed forces overseas in an area where no actual hostilities are under way. ^[63] The exigencies which have required military rule on the battlefront are not present in areas where no conflict exists. Military trial of civilians "in the field" is an extraordinary jurisdiction, and it should not be expanded at the expense of the Bill of Rights. We agree with Colonel Winthrop, an expert on military jurisdiction, who declared: "a statute cannot be framed by which a civilian can lawfully be made amenable to the military jurisdiction in time of peace." ^[64] (Emphasis not supplied.)

As this Court stated in United States ex rel. Toth v. Quarles, 350 U.S. 11, the business of soldiers is to fight and prepare to fight wars, not to try civilians for their alleged crimes. Traditionally, military justice has been a rough form of justice emphasizing summary procedures, [p36] speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks. Because of its very nature and purpose, the military must place great emphasis on discipline and efficiency. Correspondingly, there has always been less emphasis in the military on protecting the rights of the individual than in civilian society and in civilian courts.

Courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. They have always been subject to varying degrees of "command influence." ^[65] In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command. Frequently, the members of the court-martial must look to the appointing officer for promotions, advantageous assignments and efficiency ratings—in short, for their future progress in the service. Conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, the members of a court-martial, in the nature of things, do not and cannot have the independence of jurors drawn from the general public or of civilian judges. ^[66] [p37]

We recognize that a number of improvements have been made in military justice recently by engrafting more and more of the methods of civilian courts on courts-martial. In large part, these ameliorations stem from the reaction of civilians, who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in the civil courts. Looming far above all other deficiencies of the military trial, of course, is the absence of trial by jury before an independent judge after an indictment by a grand jury. Moreover the reforms are merely statutory; Congress—and perhaps the President—can reinstate former practices, subject to any limitations imposed by the Constitution, whenever it desires. ^[67] As yet, it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials. ^[68] [p38]

It must be emphasized that every person who comes within the jurisdiction of courts-martial is subject to military law—law that is substantially different from the law which governs civilian society. Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms. ^[69] It emphasizes the iron hand of discipline more that it does the even scales of justice. Moreover, it has not yet been definitely established to what extent the President, as Commander-in-Chief of the armed forces, or his delegates, can promulgate, supplement or change substantive military law as well as the procedures of military courts in time of peace, or in time of war. ^[70] In any event, Congress has given the President broad discretion to provide the rules governing military trials. ^[71] For example, in these very cases, a technical manual issued under the President's name with regard to the defense of insanity in military trials was of critical importance in the convictions of Mrs. Covert and Mrs. Smith. If the President can provide [p39] rules of substantive law as well as procedure, then he and his military subordinates exercise legislative, executive and judicial powers with respect to those subject to military trials. Such blending of functions in one branch of the Government is the objectionable thing which the draftsmen of the Constitution endeavored to prevent by providing for the separation of governmental powers.

In summary,

it still remains true that military tribunals have not been, and probably never can be, constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. ^[72]

In part, this is attributable to the inherent differences in values and attitudes that separate the military establishment from civilian society. In the military, by necessity, emphasis must be placed on the security and order of the group, rather than on the value and integrity of the individual.

It is urged that the expansion of military jurisdiction over civilians claimed here is only slight, and that the practical necessity for it is very great. ^[73] The attitude appears to be that a slight encroachment on the Bill of Rights and other safeguards in the Constitution need cause little concern. But to hold that these wives could be tried by the military would be a tempting precedent. Slight encroachments create new boundaries from which legions of power can seek new territory to capture.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional [p40] practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. ^[74]

Moreover, we cannot consider this encroachment a slight one. Throughout history, many transgressions by the military have been called "slight" and have been justified as "reasonable" in light of the "uniqueness" of the times. We cannot close our eyes to the fact that, today, the peoples of many nations are ruled by the military.

We should not break faith with this Nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. The country has remained true to that faith for almost one hundred seventy years. Perhaps no group in the Nation has been truer than military men themselves. Unlike the soldiers of many other nations, they have been content to perform their military duties in defense of the Nation in every period of need, and to perform those duties well without attempting to usurp power which is not theirs under our system of constitutional government.

Ours is a government of divided authority on the assumption that in division there is not only strength but freedom from tyranny. And, under our Constitution, courts of law alone are given power to try civilians for [p41] their offenses against the United States. The philosophy expressed by Lord Coke, speaking long ago from a wealth of experience, is still timely:

God send me never to live under the Law of Conveniency or Discretion. Shall the Souldier and Justice Sit on one Bench, the Trumpet will not let the Cryer speak in Westminster-Hall. ^[75]

In No. 701, Reid v. Covert, the judgment of the District Court directing that Mrs. Covert be released from custody is

Affirmed.

In No. 713, Kinsella v. Krueger, the judgment of the District Court is reversed and the case is remanded with instructions to order Mrs. Smith released from custody.

Reversed and remanded.

MR. JUSTICE WHITTAKER took no part in the consideration or decision of these cases.

Notes

1 . 50 U.S.C. § 712.

2 . 50 U.S.C. § 552(11).

3 . Martin v. Hunter's Lessee, 1 Wheat. 304, 326; Ex parte Milligan, 4 Wall. 2, 119, 136-137; Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 477; Ex parte Quirin, 317 U.S. 1, 25.

4 . Marbury v. Madison, 1 Cranch 137, 176-180; Hawaii v. Mankichi, 190 U.S. 197, 236-239 (Harlan, J., dissenting).

5 . 2 Clode, Military Forces of the Crown, 175.

6 . Cf. Barron v. Baltimore, 7 Pet. 243, 250.

7 . This Court has constantly reiterated that the language of the Constitution where clear and unambiguous must be given its plain evident meaning. See, e.g., Ogden v. Saunders, 12 Wheat. 213, 302-303; Lake Count v. Rollins, 130 U.S. 662, 670-671. In United States v. Sprague, 282 U.S. 716, 731-732, the Court said:

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. . . . The fact that an instrument drawn with such meticulous care and by men who so well understood how to make language fit their thought does not contain any such limiting phrase . . . is persuasive evidence that no qualification was intended.

8 . According to Madison, the section was intended "to provide for trial by jury of offences committed out of any State." 3 Madison Papers (Gilpin ed. 1841) 1441.

9 . 1 Stat. 113-114. With slight modifications, this provision is now 18 U.S.C. § 3238.

10 . See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 312-313 (Due Process of Law); Downes v. Bidwell, 182 U.S. 244, 277 (First Amendment, Prohibition against Ex Post Facto Laws or Bills of Attainder); Mitchell v. Harmony, 13 How. 115, 134 (Just Compensation Clause of the Fifth Amendment); Best v. United States, 184 F.2d 131, 138 (Fourth Amendment); Eisentrager v. Forrestal, 84 U.S.App.D.C. 396, 174 F.2d 961 (Right to Habeas Corpus), rev'd on other grounds sub nom. Johnson v. Eisentrager, 339 U.S. 763; Turney v. United States, 126 Ct.Cl. 202, 115 F.Supp. 457, 464 (Just Compensation Clause of the Fifth Amendment).

11 . See Dorr v. United States, 195 U.S. 138, 144-148.

12 . The right to trial by jury in a criminal case is twice guaranteed by the Constitution. It is common knowledge that the fear that jury trial might be abolished was one of the principal sources of objection to the Federal Constitution, and was an important reason for the adoption of the Bill of Rights. The Sixth Amendment reaffirmed the right to trial by jury in criminal cases, and the Seventh Amendment insured such trial in civil controversies. See 2 Elliot's Debates (2d ed. 1836) passim; 3 id. passim.

13 . 3 Blackstone's Commentaries 379. As to the importance of trial by jury, see also Ex parte Milligan, 4 Wall. 2, 122-123; Thompson v. Utah, 170 U.S. 343, 349-350; United States ex rel. Toth v. Quarles, 350 U.S. 11, 16, 18-19; 2 Kent's Commentaries, 3-10; The Federalist, No. 83 (Hamilton); 2 Wilson's Works (Andrews ed. 1896) 222.

De Tocqueville observed:

The institution of the jury . . . places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. . . . He who punishes the criminal is . . . the real master of society. . . . All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury.

1 De Tocqueville, Democracy in America (Reeve trans.1948 ed.), 282-283.

14 . Rev.Stat. §§ 4083-4130 (1878).

15 . Id. § 4086.

16 . Secretary of State Blaine referred to these consular powers as

greater than ever the Roman law conferred on the pro-consuls of the empire, to an officer who, under the terms of the commitment of this astounding trust, is practically irresponsible.

S.Exec.Doc. No. 21, 47th Cong., 1st Sess. 4. Seward, at a time when he was Consul-General, declared:

[t]here is no reason, excepting the absence of appropriate legislation, why American citizens in China, charged with grave offenses, should not have the privilege of a trial by jury as elsewhere throughout the world where the institution of civilization prevails.

Id. at 7.

17 . In re Ross, supra, at 464.

18 . Ibid.

19 . See cases cited in note 10, supra.

20 . See, e.g., Kawakita v. United States, 343 U.S. 717, United States v. Flores, 289 U.S. 137; United States v. Bowman, 260 U.S. 94; Chandler v. United States, 171 F.2d 921, cert. denied, 336 U.S. 918.

21 . 70 Stat. 773.

22 . Downes v. Bidwell, 182 U.S. 244; Hawaii v. Mankichi, 190 U.S. 197; Dorr v. United States, 195 U.S. 138; Balzac v. Porto Rico, 258 U.S. 298.

23 .

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . . .

24 . Downes v. Bidwell, 182 U.S. 244, the first of the "Insular Cases" was decided over vigorous dissents from Mr. Chief Justice Fuller, joined by Justices Harlan, Brewer, and Peckham, and from Mr. Justice Harlan separately. The four dissenters took the position that all the restraints of the Bill of Rights and of other parts of the Constitution were applicable to the United States Government wherever it acted. This was the position which the Court had consistently followed prior to the "Insular Cases." See, e.g., Thompson v. Utah, 170 U.S. 343; Callan v. Wilson, 127 U.S. 540.

25 . As to the great significance of the right to trial by jury see text at note 13, supra, and the authorities referred to in that note.

26 . Later the Court held that, once a territory become "incorporated" all of the constitutional protections became "applicable." See, e.g., Rassmussen v. United States, 197 U.S. 516, 520-521.

27 . It may be said that it is difficult to amend the Constitution. To some extent that is true. Obviously the Founders wanted to guard against hasty and ill-considered changes in the basic charter of government. But if the necessity for alteration becomes pressing, or if the public demand becomes strong enough, the Constitution can and has been promptly amended. The Eleventh Amendment was ratified within less than two years after the decision in Chisholm v. Georgia, 2 Dall. 419. And, more recently, the Twenty-First Amendment, repealing nationwide prohibition, became part of the Constitution within ten months after congressional action. On the average, it has taken the States less than two years to ratify each of the twenty-two amendments which have been made to the Constitution.

28 . In 1881, Senator Carpenter, while attacking the consular courts "as a disgrace to this nation" because they deprived citizens of the "fundamental and essential" rights to indictment and trial by jury, declared:

If we are too mean as a nation to pay the expense of observing the Constitution in China, then let us give up our concessions in China and come back to as much of the Constitution as we can afford to carry out.

11 Cong.Rec. 410.

29 . Executive Agreement of July 27, 1942, 57 Stat. 1193. The arrangement now in effect in Great Britain and the other North Atlantic Treaty Organization nations, as well as in Japan, is the NATO Status of Forces Agreement, 4 U.S. Treaties and Other International Agreements 1792, T.I.A.S. 2846, which, by its terms, gives the foreign nation primary jurisdiction to try dependents accompanying American servicemen for offenses which are violations of the law of both the foreign nation and the United States. Art. VII, §§ 1(b), 3(a). The foreign nation has exclusive criminal jurisdiction over dependents for offenses which only violate its laws. Art. VII, § 2(b). However, the Agreement contains provisions which require that the foreign nations provide procedural safeguards for our nationals tried under the terms of the Agreement in their courts. Art. VII, § 9. Generally, see Note, 70 Harv.L.Rev. 1043.

Apart from those persons subject to the Status of Forces and comparable agreements and certain other restricted classes of Americans, a foreign nation has plenary criminal jurisdiction, of course, over all Americans—tourists, residents, businessmen, government employees and so forth—who commit offenses against its laws within its territory.

30 . See Administrative Agreement, 3 U.S. Treaties and Other International Agreements 3341, T.I.A.S. 2492.

31 . See the references collected in 4 Farrand, Records of the Federal Convention (Rev. ed.1937), 123.

32 . See the discussion in the Virginia Convention on the adoption of the Constitution, 3 Elliot's Debates (1836 ed.) 500-519.

33 . E.g., United States v. Minnesota, 270 U.S. 181, 207-208; Holden v. Joy, 17 Wall. 211, 242-243; The Cherokee Tobacco, 11 Wall. 616, 620-621; Doe v. Braden, 16 How. 635, 657. Cf. Marbury v. Madison, 1 Cranch 137, 176-180. We recognize that executive agreements are involved here, but it cannot be contended that such an agreement rises to greater stature than a treaty.

34 . In Whitney v. Robertson, 124 U.S. 190, the Court stated, at p. 194:

By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. . . . [I]f the two are inconsistent, the one last in date will control the other. . . . Head Money Cases, 112 U.S. 580; Botiller v. Dominguez, 130 U.S. 238; Chae Chan Ping v. United States, 130 U.S. 581. See Clark v. Allen, 331 U.S. 503, 509-510; Moser v. United States, 341 U.S. 41, 45.

35 . See United States v. Darby, 312 U.S. 100, 124-125, and the authorities collected there.

36 . Dynes v. Hoover, 20 How. 65; Ex parte Reed, 100 U.S. 13.

37 . See note 7, supra.

38 . Colonel Winthrop, who has been called the "Blackstone of Military Law," made the following statement in his treatise:

Can [the power of Congress to raise, support, and govern the military forces] be held to include the raising or constituting, and the governing nolens volens, in time of peace, as a part of the army, of a class of persons who are under no contract for military service, . . . who render no military service, perform no military duty, receive no military pay, but are and remain civilians in every sense and for every capacity. . . . In the opinion of the author, such a range of control is certainly beyond the power of Congress under [the Constitution. The Fifth Amendment] clearly distinguishes the military from the civil class as separate communities. It recognizes no third class which is part civil and part military . . . , and it cannot be perceived how Congress can create such a class without a disregard of the letter and spirit of the organic law.

Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 106.

39 . 12 Stat. 696. For debates showing sharp attacks on the constitutionality of this legislation see Cong.Globe, 37th Cong., 3d Sess. 952-958. The legislation was subsequently repealed. Rev.Stat. (1878 ed.) §§ 1342, 5596.

40 . As the Government points out in its brief on rehearing:

The clause granting Congress power to make rules for the government and regulation of the land and naval forces was included in the final draft of the Constitution without either discussion or debate. . . . Neither the original draft presented to the convention nor the draft submitted by the "Committee of Detail" contained the clause. 5 Elliot's Debates 130, 379.

41 . Most of the benefits received by dependents accompanying servicemen overseas are also enjoyed by those accompanying servicemen in this country—for example, quarters, commissary privileges, medical benefits, free transportation of household effects and so forth.

42 . In the Mutiny Acts, first passed in 1688, 1 Will. & Mar., c. 5, the English Parliament reluctantly departed from the Common Law, see note 44, infra and granted the Army authority in time of peace to try soldiers—initially for only the offenses of mutiny and desertion in time of civil insurrection. In the beginning. this limited court-martial jurisdiction was granted only for periods of four months; later, it was granted from year to year. See 1 Clode, Military Forces of the Crown, 19-21, 55-61, 76-78, 142-166, 499-501, 519-520.

Initially the Mutiny Acts did not apply to the American Colonies. In 1713, Parliament, for the first time, authorized the trial of soldiers by courts-martial during peacetime in the overseas dominions. 12 Anne, c. 13, § 43; 1 Geo. I, c. 34. See the British War Office, Manual of Military Law (7th ed.1929), 10-14. For colonial reaction to military trial of soldiers in this country in the period preceding the revolution see text at note 49 and the authorities referred to there.

It was not until 1863 that Congress first authorized the trial of soldiers, in wartime, for civil crimes such as murder, arson, rape, etc., by courts-martial. 12 Stat. 736. Previously, the soldiers had been turned over to state authorities for trial in state courts. In Coleman v. Tennessee, 97 U.S. 509, this Court declined to construe the 1863 statute as depriving civilian courts of a concurrent jurisdiction to try soldiers for crimes. The Court said:

With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect.

Id. at 514.

43 . Washington warned that

Mercenary Armies . . . have at one time or another subverted the liberties of almost all the Countries they have been raised to defend. . . .

26 Writings of Washington (Fitzpatrick ed.) 388. Madison in The Federalist, No. 41, cautioned:

[T]he liberties of Rome proved the final victim to her military triumphs, and . . . the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments.

44 . The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so,

if a life-guardsman deserted he could only be sued for breach of contract, and if he struck his officer, he was only liable to an indictment or an action of battery.

2 Campbell, Lives of the Chief Justices (1st ed. 1849), 91. In time of war, the Common Law recognized an exception that permitted armies to try soldiers "in the field." The pages of English history are filled with the struggle of the common law courts and Parliament against the jurisdiction of military tribunals. See, for example, 8 Richard II, c. 5; 13 Richard II, cc. 2, 5; 1 Henry IV, c. 14; 18 Henry VI, c.19; 3 Car. I, c. 1. See 3 Rushworth, Historical Collections, App. 76-81.

During the Middle Ages, the Court of the Constable and Marshal exercised jurisdiction over offenses committed by soldiers in time of war and over cases "of Death or Murder committed beyond the Sea." Hale, History and Analysis of the Common Law of England (1st ed. 1713), 372. As time passed, the jurisdiction of this court was steadily narrowed by Parliament and the common law courts so that Lord Chief Justice Hale (1609-1676) could write that the court "has been long disused upon great Reasons." Hale, supra, 42. As the Court of the Constable and Marshal fell into disuse and disrepute, jurisdiction over soldiers in time of war was assumed by commissions appointed by the King or by military councils.

In Mostyn v. Fabrigas, 1 Cowp. 161, at 176, Lord Mansfield observed that "tradesmen who followed the train [of the British Army at Gibraltar], were not liable to martial law." (The distinction between the terms "martial law" and "military law" is of relatively recent origin. Early writers referred to all trials by military authorities as "martial law.")

45 . In 1627, the Petition of Right, 3 Car. I, c. 1 (Pickering, Vol. VII, p. 319, 1763) protested:

nevertheless of late time divers commissions under your Majesty's great seal have issued forth by which certain persons have been assigned and appointed commissioners with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them as should commit any murder, robbery, felony, mutiny or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial:

• * * *

[Your Majesty's subjects] do therefore humbly pray your most excellent Majesty . . . that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled, and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death contrary to the laws and franchise of the land.

See also 1 Clode, Military Forces of the Crown, 120, 424-425.

46 . These Articles are set out in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 920. James II also removed Lord Chief Justice Herbert and Sir John Holt (later Lord Chief Justice) from the bench for holding that military trials in peacetime were illegal and contrary to the law of the land. See 2 Campbell, Lives of the Chief Justices (1st ed. 1849), 90-93, 129.

47 . 1 Will. & Mar., c. 2

48 . 1 Blackstone's Commentaries 413. And Hale, in much the same vein, wrote:

First, That in Truth and Reality, [martial law] is not a Law, but something indulged, rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army is that only which can give those Laws a Countenance. . . .

Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts, but they were to be order'd and govern'd according to the Laws to which they were subject, though it were a Time of War.

Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the Kings Courts are open for all Persons to receive Justice, according to the Laws of the Land.

Hale, History and Analysis of the Common Law of England (1st ed. 1713), 441.

49 . 1 Wells, The Life and Public Services of Samuel Adams, 231. See also Dickerson, Boston Under Military Rule; Report of Boston Committee of Correspondence (November 20, 1772), "A List of Infringements and Violations of Rights," in Morison, The American Revolution 1764-1788, 91; Declaration and Resolves of the First Continental Congress in 1 Journals of the Continental Congress (Ford ed.) 63-73.

In June, 1775, General Gage, then Royal Governor of Massachusetts Colony, declared martial law in Boston and its environs. The Continental Congress denounced this effort to supersede the course of the common law and to substitute the law martial. Declaration of Causes of Taking Up Arms, in 2 American Archives, Fourth Series (Force ed.), 1865, 1868.

In November, 1775, Norfolk, Virginia, also was placed under martial law by the Royal Governor. The Virginia Assembly denounced this imposition of the "most execrable of all systems, the law martial," as in "direct violation of the Constitution, and the laws of this country." 4 id., 81-82.

And the Constitution adopted by the Provincial Congress of South Carolina on March 26, 1776, protested:

. . . governors and others bearing the royal commission in the colonies [have] . . . dispensed with the law of the land, and substituted the law martial in its stead; . . . .

Thorpe, The Federal and State Constitutions, 3242.

50 . 4 Geo. III, c. 15; 8 Geo. III, c. 22.

51 . See 4 Benedict, American Admiralty (6th ed.1940), §§ 672-704; Harper, The English Navigation Laws, 184-196; 9 John Adams, Works, 318-319.

Jefferson, in 1775, protested:

[Parliament has] extended the jurisdiction of the courts of admiralty beyond their antient limits, thereby depriving us of the inestimable right of trial by jury in cases affecting both life and property and subjecting both to the arbitrary decision of a single and dependent judge.

2 Journals of the Continental Congress (Ford ed.) 132.

52 . 43 Harvard Classics 147, 148.

53 . State constitutions adopted during this period generally contained provisions protecting the right to trial by jury and warning against the military. See Thorpe, The Federal and State Constitutions, (Delaware) 569, (Maryland) 1688, (Massachusetts) 1891-1892, (North Carolina) 2787-2788, (Pennsylvania) 3083, (South Carolina) 3257, (Virginia) 3813-3814.

54 . See Art. I, §§ 8, 9; Art. II, § 2; Art. III; Amendments II, III, V, VI of the Constitution. See Madison, The Debates in the Federal Convention of 1787, in Documents Illustrative of the Formation of The Union of The American States, H.R.Doc. No. 398, 69th Cong., 1st Sess. 564-571, 600-602; Warren, The Making of the Constitution (1947 ed.), 482-484, 517-521. The Federalist, Nos. 26, 27, 28, 41; Elliot's Debates (2d ed. 1836) passim.

55 . Cf. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487. And see the account of the trial of Theobald Wolfe Tone, 27 Howell's State Trials 614.

56 . 4 Wall. at 122-123.

57 . 350 U.S. at 22-23. Cf. United States ex rel. Flannery v. Commanding General, 69 F.Supp. 661, rev'd by stipulation in unreported order of the Second Circuit, No. 20235, April 18, 1946. And see Ex parte Van Vranken, 47 F. 888; Antrim's Case, 5 Phila. 278, 288; Jones v. Seward, 40 Barb. (N.Y.) 563, 569-570; Smith v. Shaw, 12 Johns. (N.Y.) 257.

58 . Brief for respondent, p. 31, United States ex rel. Toth v. Quarles, 350 U.S. 11:

Indeed, we think the constitutional case is, if anything, clearer for the court-martial of Toth, who was a soldier at the time of his offense, than it is for a civilian accompanying the armed force.

59 . Perlstein v. United States, 151 F.2d 167, cert. granted, 327 U.S. 777, dismissed as moot, 328 U.S. 822; Hines v. Mikell, 259 F. 28; Ex parte Jochen, 257 F. 200; Ex parte Falls, 251 F. 415; Ex parte Gerlach, 247 F. 616; Shilman v. United States, 73 F.Supp. 648, reversed in part, 164 F.2d 649, cert. denied, 333 U.S. 837; In re Berue, 54 F.Supp. 252; McCune v. Kilpatrick, 53 F.Supp. 80; In re Di Bartolo, 50 F.Supp. 929.

60 . See, e.g., American Articles of War of 1775, Art. 354II in Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 953, 956.

We have examined all the cases of military trial of civilians by the British or American Armies prior to and contemporaneous with the Constitution that the Government has advanced or that we were able to find by independent research. Without exception, these cases appear to have involved trials during wartime in the area of battle—"in the field"—or in occupied enemy territory. Even in these areas, there are only isolated instances of military trial of "dependents" accompanying the armed forces. Apparently the normal method of disciplining camp followers was to expel them from the camp or to take away their ration privileges.

61 . Experts on military law, the Judge Advocate General, and the Attorney General have repeatedly taken the position that "in the field" means in an area of actual fighting. See, e.g., Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 100-102; Davis, Military Law (3d ed.1915), 478-479; Dudley, Military Law and the Procedures of Courts-Martial (2d ed.1908), 413-414; 14 Op.Atty.Gen. 22; 16 id. 48; Dig.Op.JAG (1912) 151; id. (1901) 56, 563; id. (1895) 76, 325-326, 599-600; id. (1880) 49, 211, 384. Cf. Walker v. Chief Quarantine Officer, 69 F.Supp. 980, 987.

Article 2(10) of the UCMJ, 50 U.S.C. § 552(10), provides that, in time of war, persons serving with or accompanying the armed forces in the field are subject to court-martial and military law. We believe that Art. 2(10) sets forth the maximum historically recognized extent of military jurisdiction over civilians under the concept of "in the field." The Government does not attempt—and quite appropriately so—to support military jurisdiction over Mrs. Smith or Mrs. Covert under Art. 2(10).

62 . Even during time of war, the Constitution must be observed. Ex parte Milligan, 4 Wall. 2, at 120, declares:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

Also see Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156; United States v. Commodities Trading Corp., 339 U.S. 121, 125.

63 . Madsen v. Kinsella, 343 U.S. 341, is not controlling here. It concerned trials in enemy territory which had been conquered and held by force of arms and which was being governed at the time by our military forces. In such areas, the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with the Army or not.

64 . Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 107.

65 . See Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess.; Beets v. Hunter, 75 F.Supp. 825, rev'd on other grounds, 180 F.2d 101, cert. denied, 339 U.S. 963; Shapiro v. United States, 107 Ct.Cl. 650, 69 F.Supp. 205. Cf. Keeffe, JAG Justice in Korea, 6 Catholic U. of Amer.L.Rev. 1.

The officer who convenes the court-martial also has final authority to determine whether charges will be brought in the first place, and to pick the board of inquiry, the prosecutor, the defense counsel, and the law officer who serves as legal adviser to the court-martial.

66 . Speaking of the imperative necessity that judges be independent, Hamilton declared:

. . . [L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; . . . nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The Federalist, No. 78.

67 . The chief legal officers of the armed services have already recommended to Congress that certain provisions of the UCMJ which were designed to provide protection to an accused should be repealed or limited in the interest of military order and efficiency. Joint Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury (1954). See Walsh, Military Law: Return to Drumhead Justice?, 42 A.B.A.J. 521.

68 . Cf. Burns v. Wilson, 346 U.S. 137, 146, 148, 150; Note, 70 Harv.L.Rev. 1043, 1050-1053. But see Jackson v. Taylor, 353 U.S. 569; In re Grimley, 137 U.S. 147, 150. The exception in the Fifth Amendment, of course, provides that grand jury indictment is not required in cases subject to military trial, and this exception has been read over into the Sixth Amendment, so that the requirements of jury trial are inapplicable. Ex parte Quirin, 317 U.S. 1, 40. In Swaim v. United States, 165 U.S. 553, this Court held that the President or commanding officer had power to return a case to a court-martial for an increase in sentence. If the double jeopardy provisions of the Fifth Amendment were applicable, such a practice would be unconstitutional. Cf. Kepner v. United States, 195 U.S. 100.

69 . For example, Art. 134, UCMJ, 50 U.S.C. § 728 provides:

Though not specifically mentioned in this [Code], all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces . . . shall be taken cognizance of . . . and punished at the discretion of [a court-martial].

In 1942, the Judge Advocate General ruled that a civilian employee of a contractor engaged in construction at an Army base could be tried by court-martial under the predecessor of Article 134 for advising his fellow employees to slow down at their work. Dig.Op.JAG, 941 Supp. 357.

70 . See w:Ex parte Quirin, 317 U.S. 1, 28-29; United States v. Eliason, 16 Pet. 291, 301; Swaim v. United States, 165 U.S. 553. Cf. General Orders, No. 100, Official Records, War of Rebellion, Ser. III, Vol. III, April 24, 1863; 15 Op.Atty.Gen. 297 and Note attached.

71 . Art. 36, UCMJ, 50 U.S.C. § 611.

72 . United States ex rel. Toth v. Quarles, 350 U.S. 11, 17.

73 . According to the Government's figures, almost 95% of the civilians tried abroad by army courts-martial during the six-year period from 1949-1955 were tried for minor offenses. In this country, "petty offenses" by civilians on military reservations are tried by civilian commissioners unless the alleged offender chooses trial in the Federal District Court. 18 U.S.C. § 3401.

74 . Boyd v United States, 116 U.S. 616, 635.

75 . 3 Rushworth, Historical Collections, App. 81.