United States ex rel. Toth v. Quarles/Dissent Reed

by Stanley Forman Reed

United States Supreme Court

350 U.S. 11

United States ex rel. Toth  v.  Quarles

 Argued: Feb. 8, 9, 1955. ---

Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting.

This case presents the question whether or not an honorably discharged exserviceman may be apprehended by military authorities to stand trial by court-martial for a crime alleged to have been committed by him while he was a member of the armed forces of the United States. The answer turns upon the constitutionality and construction of the applicable provisions of the Uniform Code of Military Justice, 64 Stat. 108, 50 U.S.C. § 551 et seq., 50 U.S.C.A. § 551 et seq. under which the United States Air Force acted in this case.

Whenever an enactment of Congress to cure weaknesses in criminal procedure is declared unconstitutional by this Court on the ground of lack of legislative power, the door is closed for all practical purposes forever on the method that Congress deems effective for correcting crime. Only an overruling of this case can change today's constitutional determination.

The judgment just announced turns loose, without trial or possibility of trial, a man accused of murder. In future similar cases among the military, if Congress enacts the substitute law as the Court suggests, 350 U.S. 21, 76 S.Ct. 7, the accused must face a jury far removed from the scene of the alleged crime and before jurors without the understanding of the quality and character of a military crime possessed by those accustomed to administer the Uniform Code of Military Justice. Or perhaps those accused will be extradited and tried by foreign law.

A dissent is justified, I think, if its argument may limit, in some degree, further interpreting limitations by the judiciary on the power granted by the Constitution to Congress: 'To make Rules for the Government and Regulation of the land and naval Forces' without the jury and venue requirements of the Fifth and Sixth Amendments. These requirements are appropriate for civil trials but, by custom, our precedents and express language are inapplicable to 'cases arising in the land or naval forces.'

Robert W. Toth, after service in the United States Air Force, was honorably discharged on December 8, 1952. On April 8, 1953, formal charges were signed under the procedures required by the Uniform Code of Military Justice charging Toth with premeditated murder and conspiracy to commit murder. ^[1] The specifications under the charges alleged that the offenses were committed by Toth while an Airman First Class, United States Air Force, on September 27, 1952, at an air base in Korea, and the victim was a named Korean national. It was further alleged that Toth was a civilian subject to the Uniform Code of Military Justice under Article 3(a) thereof which provides:

'Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.' 64 Stat. 109, 50 U.S.C. § 553(a), 50 U.S.C.A. § 553(a). ^[2]

On May 13, 1953, pursuant to orders originally issued by the Acting Secretary of the Air Force on April 30, 1953, and further supplemental orders through appropriate Air Force command channels, Toth was apprehended by Air Force police at his place of employment in Pittsburgh, Pennsylvania. On May 15, 1953, he was flown to Korea where he arrived on May 18, 1953.

This was the situation when the petition for habeas corpus was filed by the relator. The Government did not question jurisdiction in the District Court and after argument that court ordered the writ to issue. ^[3] Toth was returned to the United States and produced in court, whereupon the District Court ordered his discharge on the ground that even if the Air Force police had authority to apprehend Toth, they had no legal power to transport him to a distant point for trial or at least to do so without a hearing. The court therefore found it unnecessary to pass on the constitutional objections raised by the petitioner as to the invalidity of Article 3(a). Toth v. Talbott, D.C., 114 F.Supp. 468.

On appeal, the Court of Appeals for the District of Columbia Circuit reversed the District Court, discharged the writ and ordered Toth returned to the military authorities. Talbott v. United States ex rel. Toth, 94 U.S.App.D.C. 28, 215 F.2d 22. The Court of Appeals held that Article 3(a) of the Code was constitutionally valid and that the Code provided the necessary authorization and machinery to apprehend and transport for trial, in the manner here followed, persons in civilian status who were amenable to courtsmartial by reason of the provisions of Article 3(a).

The Code was enacted May 5, 1950, after careful military and congressional study to assure that the military justice of the unified services would be in accordance with the present-day standards of fairness. ^[4] Article 3(a) was adopted in view of the decision of this Court in United States ex rel. Hirshberg v. Cooke, 1949, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621, holding the Articles for the Government of the Navy, then in force, did not allow trial on charges filed subsequent to honorable discharge 'without a grant of congressional authority,' id., 336 U.S. at page 215, 69 S.Ct. at page 533, although the charges arose from acts committed while the defendant was in military service. The near escape from military justice of Army personnel accused of the theft in Germany of the Hesse crown jewels was also in mind. ^[5] It was thought that a serviceman's discharge should not bar his prosecution in a military court for crimes committed when subject to military discipline. ^[6]

The enactment of Article 3(a) was chosen instead of the alternative of federal district court jurisdiction, although thorough presentations of objections not only on constitutional but also on policy grounds appear in the committee report and the Congressional Record. ^[7] The military were well aware, as was Congress, of possible unfavorable public reaction to extension of the jurisdiction of military courts to discharged veterans for alleged misdeeds during service. The language of Article 3(a) was drawn to cover only the most serious offenses and restricted to those instances in which the guilty would otherwise escape trial or punishment in any American courts. Although Congress, under Art. I, § 8, cl. 14, ^[8] and the Necessary and Proper Clause, doubtless might have authorized the civil courts to try charges arising from violations of the Military Code during former service, even though committed on foreign soil, ^[9] it chose the method of Article 3(a).

No question of accommodating the liberty of the citizen to requirements of the military through the interpretation of an ambiguous Act arises. Compare Ex parte Endo, 323 U.S. 283, 300, 65 S.Ct. 208, 217, 89 L.Ed. 243. It is not for courts to question the wisdom of the legislation. Its obvious purpose was to assure, insofar as discipline may do so, the proper conduct of our far-flung and numerous military personnel in foreign lands. One need not stress the necessity of orderly conduct by the military on foreign posts for the maintenance of good relations in friendly or vanquished countries. It also seems a reasonable choice that uniform treatment by courts-martial trial of all accused of crimes punishable by the Military Code is preferred for morale and disciplinary purposes to courts-martial trial only for those who remain in the service. This case itself would make a good example of the difficulty of a federal district court trial. We address ourselves to the constitutionality of Article 3(a).

(a) The congressional power under Article I of the Constitution to regulate the armed forces is conceded by the Court to embrace the power to provide for trial by court-martial and military punishment for violations of the Military Code. But the Court holds that that power ceases when the serviceman becomes a civilian. Nothing, we think, in the words of Article I or in the history of that congressional power justifies limiting trial and punishment by the military, for crimes committed by members of the armed services, to the period of service. Certainly the power of Congress to provide for a military trial and punishment for a breach of the Military Code on charges brought before the end of enlistment or discharge may continue thereafter. ^[10] The crime charged against Toth was one covered by the Code. The circumstance that he was discharged from the service prior to the detection of the alleged crime and prior to being charged with its commission should make no constitutional difference.

Courts-martial are deeply rooted in history. War is a grim business, requiring sacrifice of ease, opportunity, freedom from restraint, and liberty of action. Experience has demonstrated that the law of the military must be capable of prompt punishment to maintain discipline. The power to regulate the armed forces must have been granted to Congress so that it would have the authority over its armed forces that other nations have long exercised, subject only to limitations of the Constitution. Dynes v. Hoover, 20 How. 65, 78-79, 15 L.Ed. 838; Ex parte Reed, 100 U.S. 13, 21, 25 L.Ed. 538. The Government calls our attention to the current provisions for military trial after discharge of other nations with legal background similar to ours. Each of them allows such trials under varying conditions. ^[11] Whether English courts-martial before 1789 exercised jurisdiction over charges preferred after separation from service cannot be categorically asserted in view of the paucity of cases. It would seem, however, that the language of Article I itself properly should be interpreted to empower Congress to authorize courts-martial after separation from the services. The crime charged was committed during service and violated the Military Code. Surely when read with the Necessary and Proper Clause, the conclusion must follow. Article 3(a) bears a reasonable relation to the 'Government and Regulation' of the armed forces; it is appropriate and plainly adapted to that end. McCulloch v. Maryland, 4 Wheat. 316, 419 et seq., 4 L.Ed. 579. That has been the test of congressional power.

This is not an effort to make a civilian subject to military law, in distinction to martial law, as in Ex parte Milligan, 4 Wall. 2, 121, 123, 127, 18 L.Ed. 281. Such an effort would meet condemnation as an invasion of the liberty of the citizen. See Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243. Congress was granted authority to regulate the armed forces in order to enforce obedience by members of the military establishment to military regulation during their service to the end that order may be ensured. Disobedience may occur in nationally critical times. What reason can there be for refusing courts-martial jurisdiction over crimes so committed by a serviceman merely because they passed undiscovered during the service period? ^[12] Could there now be doubt as to the power of Congress under Art. I to make a draftee subject to courts-martial before actual induction into the armed forces? This Court had none in 1944. Then we said, when considering a habeas corpus for release from military imprisonment after trial by court-martial of a person claiming civilian status:

'We have no doubt of the power of Congress to enlist the manpower of the nation for prosecution of the war and to subject to military jurisdiction those who are unwilling, as well as those who are eager, to come to the defense of their nation in its hour of peril. Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (Selective Draft Law Cases).' Billings v. Truesdell, 321 U.S. 542, 556, 64 S.Ct. 737, 745, 88 L.Ed. 917.

Toth may be a civilian but his crime was a violation of military regulations.

Judicial history lends its weight to the conclusion that congressional power to institute criminal proceedings against a military person continues after the accused's discharge. In 1863, the Congress enacted an Act to prevent and punish frauds upon the Government of the United States. It provided that any person in the military forces shall be punished for fraud under military regulation 'as the court-martial may adjudge, save the punishment of death.' 12 Stat. 696-697, § 1. Under § 2, jurisdiction of the court-martial was extended to dischargees. ^[13] The provision for charge and court-martial after discharge was ruled constitutional in 1866 by Attorney General Stanbery. ^[14] The section was held constitutional in 1873. In re Bogart, 3 Fed.Cas.No.1,596, p. 796. See other cases, note 22, infra. It was apparently held unconstitutional in 1946 under Article I in the District Court for the Southern District of New York, although the problem under the Fifth Amendment was also considered. United States ex rel. Flannery v. Commanding General, D.C., 69 F.Supp. 661, 664. ^[15]

It is also to be noted that the present Uniform Code, Art. 4, 50 U.S.C. § 554, 50 U.S.C.A. § 554, provides that an officer dismissed by the President may request trial by court-martial after such dismissal. A similar provision was first enacted by Congress in 1865, § 12, 13 Stat. 487, 489; see Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 64, 65.

The Court finds a 'compelling reason' for construing the clause for Army regulation more narrowly than has been done by the Congress and the Executive for many years. This is that trial by Article III judges and juries offers safeguards to military offenders superior to those offered by courts-martial. Under our judicial system the use of juries has been found satisfactory in civil life. The argument for the adoption of civil trials for the military might appeal to Congress, if presented there. But, with due respect to the premise of the majority, the assumed superiority of the civil courts in the trial of service crimes should have no force in the construction of the constitutional power of Congress to enact Article 3(a) of the Code. Belief that an accused has better opportunities to escape conviction in a civil court should not influence a conclusion as to constitutional power. As later appears in this opinion, the Fifth and Sixth Amendments except the land and naval forces from their commands. The advantages and disadvantages of indictment, venue and jury trial for the military have been weighed and determined adversely to the Court's conclusion by the Constitution and the Congress. Certainly the number of former members of the armed services now living is immaterial to the constitutional issue, as are the 'dangers' suggested to be 'lurking in military trials.' The military is in position to give its personnel a fair trial. The only logical ground for declaring Article 3(a) unconstitutional is that military crimes cannot be so punished because such procedure is beyond the reach of the congressional authority to make rules for government of military personnel. Subsequent punishment by military procedures will help discipline during service. Such a conclusion by Congress is not strained or unreasonable but a natural use of its power to make regulations for the armed services. The choice is for Congress, not the Court.

(b) Another constitutional problem arises, i.e., that Article 3(a) is unlawful by reason of the limitations on prosecutions of the Fifth and Sixth Amendments to the Constitution. ^[16]

The argument upon the Sixth Amendment requires only summary treatment. The rights to a speedy and public trial, impartiality of the triers, information as to the charge, confrontation, compulsory process for witnesses and assistance of counsel are not in issue. This accused will not have for his trial a jury of the State and district of the crime, previously ascertained by our law. That is an impossibility in the circumstances of this case. Nor can it be that the Sixth Amendment requirements as to jury and place were intended to apply to the 'cases arising in the land or naval forces' which were excepted from the protection of the grand jury by the Fifth. That would abrogate the authority of Congress to govern the military by courts-martial. It was so announced by this Court, unanimously, in Ex parte Milligan, 4 Wall. 2, 122, 18 L.Ed. 281. ^[17] Defendants in cases arising in the armed forces, we think, are not entitled to demand trial by jury, whether the crime was committed on foreign soil or at a place within a State or previously ascertained district.

Turning to the Fifth Amendment the critical words are obviously 'cases arising in the land or naval forces.' The events leading to the taking of Toth into custody occurred while he was enlisted. They constituted then and now a violation of the Uniform Code. Relator would limit the quoted words to cases where charges had been filed during service. She stresses the phrase 'when in actual service', but this Court has held and all the history of our courts-martial shows that such phrase has reference only to 'cases arising * * * in the Militia.' Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39 L.Ed. 914.

The Fifth, like the other early amendments, arose from the determination to protect the rights of citizens. As the Articles of Confederation, Article 9, granted authority to the central government to make rules for the government and regulation of the armed forces, the Nation was conversant with the problem. In the state conventions for ratification of the Constitution, Massachusetts, New Hampshire, New York and Rhode Island suggested words for regulation of the armed forces quite similar to the ones adopted by Congress. ^[18] It will be observed that two employ 'arise.' Three speak of 'cases.' Since the state suggestions were made as the result of consideration of the proposed Constitution, it is quite natural that the language of Article III concerning the judicial power would find an echo in the suggestions, Article III, § 2, reads, 'The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *.' When the Congress considered the Act against military fraud in 1863, note 13, supra, no one suggested that a 'case,' the prosecution for which under the Act did not begin until after discharge of a serviceman, would not be a 'case arising in the land or naval forces.' The concern of Congress was with the liability of contractors, as party of military personnel, under § 1 of the Act, when they had no true military service status. ^[19] Because not service-connected, the contractors' clause has been held unconstitutional. Ex parte Henderson, 11 Fed.Cas.No.6,349, pp. 1067, 1071.

The word 'case,' of course, might refer to litigation-a charge or complaint brought in court, here a prosecution. But it seems to us that its meaning, as used in the constitutional clauses under consideration, is a state of facts for judicial action, i.e., the series of events that creates an enforceable right or obligation. The context in which it is used bears on the final definition. Here 'cases arising' is more specific than the word 'case' alone. The Government gives us several citations to cases applying the meaning for which it contends. ^[20] Relator does the same. ^[21] Article III uses 'cases arising' under federal law to indicate the extent of possible federal jurisdiction over legal rights or duties created by the laws of the United States. The meaning of 'cases arising' in Article III and the Fifth Amendment must be determined by their purpose. That purpose is similar-to mark the source of the cause of action that ripens into a civil complaint or criminal charge. However restricted the word 'case' may be, its use with 'arising' points to the source of the litigation. If a case is claimed to exist only after institution of legal proceedings, nevertheless that case has its roots, it arises, in the events that give life to the cause of action. When a case so arises was stated thus in Gully v. First Nat. Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70, in an opinion concerning the removal statute, where removal was asked because the state suit was alleged to have arisen under federal law:

'To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * *'

One of the purposes of the Fifth Amendment by this exception was to preserve the separation of military law from the requirements of civil law. The regulation of the armed forces by Congress under cl. 14 of § 8, Art. I, was to be left for legislative judgment that discipline might be maintained by speedy trial and punishment in accordance with military law. The reasons, set out in our discussion of Article I power to regulate the armed forces, need not be repeated here. We ask ourselves, 'What law is the basis of this prosecution?' The answer is the Military Code. If so, the case arises 'in the land or naval forces.'

That conclusion has the support of the weight of the precedents dealing with this phase of the Fifth Amendment. To meet the argument of defendant that jurisdiction must attach before discharge, it was said in the Bogart case, 3 Fed.Cas.No. 1,596, pp. 796, 799:

'Among the ordinary and most common definitions of the word 'arise,' are 'to proceed, to issue, to spring,' and a case arising in the land or naval forces upon a fair and reasonable construction of the whole article, appears to us to be a case proceeding, issuing or springing from acts in violation of the naval laws and regulations committed while in the naval forces or service.' This statement has been strengthened by the accord given the argument by other courts. ^[22]

(c) The Court, of course, does not gainsay the constitutional suthority of Congress to adopt a military code for regulation of members of the armed forces without regard to the generally applicable requirements of the Fifth and Sixth Amendments. It holds that where the constitutional safeguards of the Fifth and Sixth Amendments for a citizen's freedom from tyranny are at stake, they should not be withdrawn except through absolute necessity. There is no such necessity here for it would have been possible to have provided a proper civil trial with the full protection of the applicable clauses of the Amendments. But here we are considering an exception to the safeguards offered by the Fifth and Sixth Amendments. That exception has been written into the Constitution from the experience of history to protect the discipline of the armed forces. Of course, that exception from the protections of these Amendments should be strictly construed to hold those excluded to the minimum as was done in Ex parte Henderson, supra, 76 S.Ct. 17. Construction of the Constitution, however, should not be allowed to emasculate the natural meaning of language designed to protect the Nation in the regulation of its armed forces.

What we have argued in the foregoing pages of this opinion supports our conclusion on this tendered rule of construction. Granting that there are possible means of affording civil trials to persons discharged from the Army for military crimes committed during their service, we think that Congress has power to provide for punishment of these military crimes under the constitutional exceptions discussed. Such punishment, if our analysis of Article I and the Fifth and Sixth Amendments is correct, will be for military crimes of servicemen, not of civilians, and for the maintenance of discipline in the armed forces.

The relator phrases strongly her argument against Toth's prosecution by courts-martial. To her the issue is 'military dictatorship.' Though she concedes that Congress may have merely desired to bar absolution from crime by discharge from service, such purpose, she argues, should not override the Constitution or be allowed to foreshadow a 'military dictatorship.' She forebodes that every petty crime may be included and limitation of prosecution be extended until all discharged servicemen shall live their lives under fear of the Military. The law still has degrees of harshness and courts and legislatures must act in reason. The possibility of individual abuse of power is ever present even under our Constitution but the probability of obliteration of any such tendency through judicial, executive or legislative action is the citizen's protection under the Constitution. A fear that punishment by courts-martial of servicemen after discharge may bear a threat to the rights and security of citizens is extravagant. It is true today, as it was in the time of the Founding Fathers, that the methods for maintenance of Army discipline should be subject to public opinion as expressed through Congress. If trial of discharged servicemen by courts-martial under the carefully defined provisions of Article 3(a) seems harsh or hurtful to liberty, the door of Congress remains open for amelioration. This decision that a veteran, let out of the military forces before charges, must, by the Constitution, be tried by the civil courts for his military crimes impairs congressional power. Now only another Constitutional Amendment or a reversal of today's judgment will enable Congress to deal consistently with those violating the Uniform Code of Military Justice. We cannot agree that those who adopted the constitutional provisions for the protection of military discipline intended such a result. Toth's alleged accomplices have been convicted by military courts and we see no reason why he should not be tried as proposed.

The decision below should be affirmed.

Mr. Justice MINTON, whom Mr. Justice BURTON joins, dissenting.

I agree with the opinion of Mr. Justice REED, and I would add another reason why I think the judgment should be affirmed.

A civilian not under the jurisdiction of the Military Code has a right to be tried in a civil court for an alleged crime as a civilian. My trouble is that I don't think Toth was a full-fledged civilian. By 50 U.S.C. § 553, 50 U.S.C.A. § 553, Congress had retained jurisdiction to try Toth for a crime he had committed while a soldier and for which admittedly he could have been tried by court-martial if the United States had discovered his crime one minute before discharge.

He was not a full-fledged civilian under his discharge. He was still a soldier to answer in court-martial for the crime he had committed while a soldier. He had a conditional discharge only. The United States clearly reserved the right to charge and try him by court-martial for a crime committed while in the status of a soldier. This is the way Congress had provided for his trial. No other way was provided. That it may have provided another way is not to say the way provided is invalid.

I know of no reason why Congress could not pass this statute, 50 U.S.C. § 553, 50 U.S.C.A. § 553, retaining court-martial jurisdiction over Toth to answer for a crime he allegedly committed when he was clearly subject to court-martial. Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469, holds that, even though discharged from service, one convicted and serving sentence for a military offense could still be tried by courtmartial for murder, and conspiracy to commit murder even though the crime was alleged to have been committed within the limits of a state. Congress had made no provision for retention of status in that case as it had in this case, yet the Court implied the continuing military status to warrant the jurisdiction. No implied status is necessary here. It is expressly reserved by statute. Toth remained in that status by virtue of the statute.

Notes

1. The charges were violations of Articles 118 and 81 respectively of the Uniform Code of Military Justice, 50 U.S.C. §§ 712, 675, 50 U.S.C.A. §§ 712, 675.
2. Article 43 is the statute of limitations applicable to offenses punishable under the Code, 50 U.S.C. § 618, 50 U.S.C.A. § 618.
3. Toth v. Talbott, D.C, 113 F.Supp. 330.
4. S.Rep. No. 486, 81st Cong., 1st Sess., p. 3; H.R.Rep. No. 491, 81st Cong., 1st Sess., p. 2.
5. Hearings before a Subcommittee of the House Committee on Armed Services H.R. 2498, 81st Cong., 1st Sess., pp. 879-885. See Durant v. Hiatt, D.C., 81 F.Supp. 948.
6. Both the House and Senate Committee Reports stated that the need for Article 3(a) was to remedy the undesirable situation pointed out by the Hirshberg decision. Both reports contain the following sentence: 'In the opinion of the committee, the present provisions (Article 3(a)) of this subdivision provide a desirable degree of continuing jurisdiction and at the same time place sufficient limitations on the continuing jurisdiction to prevent capricious actions on the part of military authorities.' H.R.Rep. No. 491, 81st Cong., 1st Sess. 11; S.Rep. No. 486, 81st Cong., 1st Sess. 8. The same view was expressed by the managers of the bill in the House and Senate. Representative Brooks at 95 Cong.Rec. 5721 and Senator Kefauver, at 96 Cong.Rec. 1358. Views against the adoption of Article 3(a) were urged in committee and on the floor but did not prevail. Hearings before a Subcommittee of the Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 256-257; 96 Cong.Rec. 1294, 1366, 1414-1417.
7. 96 Cong.Rec. 1294 et seq. The proposed substitute for Article 3(a) was: 'Subject to the provisions of article 43, jurisdiction is hereby conferred upon the several district courts of the United States to try and punish according to the applicable provisions and limitations of this code and the regulations made thereunder-
8. 'To make Rules for the Government and Regulation of the land and naval Forces; * * *.'
9. '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.' Art. III, § 2, cl. 3.
10. Carter v. McClaughry, 183 U.S. 365, 382, 22 S.Ct. 181, 188, 46 L.Ed. 236; Mosher v. Hunter, 10 Cir., 143 F.2d 745. Cf. Kahn v. Anderson, 255 U.S. 1, 7, 41 S.Ct. 224, 225, 64 L.Ed. 469; Walker v. Morris, 3 American Jurist and Law Magazine 281.
11. Section 158 of the British Army Act (Gt. Brit., Stats.Rev., 3d ed., Vol. X, 457, 563-564; War Office, Manual of Military Law (P.I., 1951, 376-377) provides:
12. It must be noted, however, that a leading military authority is against that view. See Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 105, although he admits the weight of the precedents is against him.
13. 'That any person heretofore called or hereafter to be called into or employed in such forces or service, who shall commit any violation of this act and shall afterwards receive his discharge, or be dismissed from the service, shall, notwithstanding such discharge or dismissal, continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge or been dismissed.'
14. 12 Op.Attys.Gen. 4, 5: 'It is simply a regulation which is to follow a dismissal, providing, in certain contingencies, for the restoration of the officer to the service, and leaving the dismissal in full force if those contingencies do not happen.'
15. We are advised by the Government that this case was reversed by stipulation. See Kronberg v. Hale, 9 Cir., 180 F.2d 128, 130.
16. Fifth Amendment: '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; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'
17. '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 every one accused of crime who is not attached to the army, or navy, or militia in actual service. The sixth amendment affirms that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury,' language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, 'excepts 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 framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth.'
18. Massachusetts: 'That no person shall be tried for any crime by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces.'
19. As to that, senator Howard, in charge of the bill said:
20. United States v. Bevans, 3 Wheat. 336, 388, 4 L.Ed. 404, 'the waters on which * * * cases may arise'; Waring v. Clarke, 5 How. 441, 466, 12 L.Ed. 226, 'case of collision taking place on the Mississippi river'; and 'cause of action arisen on the ocean.' Id., 5 How. at page 467. De Lovio v. Boit, 7 Fed.Cas. No. 3,776, pp. 418, 432, 434-435.
21. 'This clause enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the constitution declares, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States.' Osborn v. Bank of United States, 9 Wheat. 738, at page 819, 6 L.Ed. 204.
22. Ex parte Joly, D.C., 290 F. 858; Terry v. United States, D.C., 2 F.Supp. 962; Kronberg v. Hale, 9 Cir., 180 F.2d 128.