U.S. Supreme Court
Reid v. Covert, 354 U.S. 1 (1957)
354 U.S. 1
REID, SUPERINTENDENT, DISTRICT OF COLUMBIA JAIL, v.
ON REHEARING. *
No. 701, October Term, 1955.
Argued May 3, 1956; decided June 11, 1956; rehearing granted November 5, 1956;
reargued February 27, 1957;
Decided June 10, 1957.
Article 2 (11) of the Uniform Code of Military Justice, providing for the
trial by court-martial of "all persons... accompanying the armed
forces" of the United States in foreign countries, cannot constitutionally
be applied, in capital cases, to the trial of civilian dependents accompanying
members of the armed forces overseas in time of peace. Kinsella v. Krueger,
351 U.S. 470 , and Reid v. Covert,
351 U.S. 487 , withdrawn. Pp. 3-78.
Judgment below in No. 701, October Term, 1955, affirmed.
137 F. Supp. 806, reversed and remanded.
MR. JUSTICE BLACK, in an opinion joined by THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS and MR. JUSTICE BRENNAN, concluded that:
1. When the United States acts against its citizens abroad, it can do so only
in accordance with all the limitations imposed by the Constitution, including
Art. III, 2, and the Fifth and Sixth Amendments. Pp. 5-14.
[354 U.S. 1, 2]
2. Insofar as Art. 2 (11) of the Uniform Code of Military Justice provides for
the military trial of civilian dependents accompanying the armed forces in
foreign countries, it cannot be sustained as legislation which is
"necessary and proper" to carry out obligations of the United States
under international agreements made with those countries; since no agreement
with a foreign nation can confer on Congress or any other branch of the
Government power which is free from the restraints of the Constitution. Pp.
3. The power of Congress under Art. I, 8, cl. 14, of the Constitution, "To
make Rules for the Government and Regulation of the land and naval
Forces," taken in conjunction with the Necessary and Proper Clause, does
not extend to civilians — even though they may be dependents living with
servicemen on a military base. Pp. 19-40.
4. Under our Constitution, courts of law alone are given power to try civilians
for their offenses against the United States. Pp. 40-41.
MR. JUSTICE FRANKFURTER, concurring in the result, concluded that, in
capital cases, the exercise of court-martial jurisdiction over civilian
dependents in time of peace cannot be justified by the power of Congress under
Article I to regulate the "land and naval Forces," when considered in
connection with the specific protections afforded civilians by Article III and
the Fifth and Sixth Amendments. Pp. 41-64.
MR. JUSTICE HARLAN, concurring in the result, concluded that, where the
offense is capital, Art. 2 (11) of the Uniform Code of Military Justice cannot
constitutionally be applied to the trial of civilian dependents of members of
the armed forces overseas in times of peace. Pp. 65-78.
[Footnote *] Together with No. 713, October
Term, 1955, Kinsella, Warden, v. Krueger, also on rehearing; argued, decided,
rehearing granted, reargued, and decided on the same dates.
Solicitor General Rankin reargued the cause for appellant in No. 701 and
petitioner in No. 713. With him on the brief were Assistant Attorney General
Olney, Roger Fisher, Beatrice Rosenberg, Carl B. Klein and William M. Burch II.
Frederick Bernays Wiener reargued the cause for appellee in No. 701 and
respondent in No. 713. With him on the brief was Adam Richmond.
[354 U.S. 1, 3]
MR. JUSTICE BLACK announced the judgment of the Court and delivered an
opinion, in which THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, and MR. JUSTICE
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, [354 U.S. 1, 4]
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 USCMA
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 USCMA 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 [354 U.S. 1, 5]
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
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
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 [354 U.S. 1, 6]
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 [354 U.S. 1,
7] of Government by express provisions of our written Constitution.
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
[354 U.S. 1, 8] 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 [354 U.S. 1,
9] 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 [354
U.S. 1, 10]
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,
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 [354 U.S. 1, 11] 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 [354 U.S. 1,
12] 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."
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 [354 U.S. 1,
13] 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 [354 U.S. 1, 14]
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 [354 U.S. 1, 15]
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
[354 U.S. 1, 16] 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
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
[354 U.S. 1, 17] 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,
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 [354 U.S. 1, 18]
government or in that of one of the
States, or a cession of any portion of the territory of the latter, without its
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,
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. [354
U.S. 1, 19] 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.
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 [354 U.S. 1,
20] 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
[354 U.S. 1, 21] 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." [354 U.S. 1, 22]
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 — safe-guards 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
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 [354
U.S. 1, 23] 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
[354 U.S. 1, 24] 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 [354 U.S. 1, 25] 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
[354 U.S. 1, 26]
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; [354 U.S. 1,
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 [354 U.S. 1, 28]
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
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...."
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 [354 U.S. 1, 29]
"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.
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
[354 U.S. 1, 30] 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
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
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
[354 U.S. 1, 31]
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
[354 U.S. 1, 32] 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 [354 U.S. 1, 33] 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 [354 U.S. 1, 34]
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
[354 U.S. 1, 35] 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,
[354 U.S. 1, 36] 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
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 [354 U.S. 1, 37]
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
[354 U.S. 1, 38]
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
[354 U.S. 1, 39] 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
[354 U.S. 1, 40]
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
[354 U.S. 1, 41] 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
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
[Footnote 1] 50 U.S.C. 712.
[Footnote 2] 50 U.S.C. 552 (11).
[Footnote 3] Martin v. Hunter's Lessee, 1 Wheat.
304, 326; Ex parte Milligan, 4 Wall. 2, 119, 136-137; Graves v. New York ex
306 U.S. 466, 477 ; Ex parte Quirin,
317 U.S. 1, 25.
[Footnote 4] Marbury v. Madison, 1 Cranch 137,
176-180; Hawaii v. Mankichi,
U.S. 197, 236-239 (Harlan, J., dissenting).
[Footnote 5] 2 Clode, Military Forces of the
[Footnote 6] Cf. Barron v. Baltimore, 7 Pet.
[Footnote 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 County v. Rollins,
U.S. 662, 670 -671. In United States v. Sprague,
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."
[Footnote 8] According to Madison, the section
was intended "to provide for trial by jury of offenses committed out of
any State." 3 Madison Papers (Gilpin ed. 1841) 1441.
[Footnote 9] 1 Stat. 113-114. With slight
modifications this provision is now 18 U.S.C. 3238.
[Footnote 10] See, e. g., Balzac v. Porto
U.S. 298, 312-313 (Due Process of Law); Downes v. Bidwell,
U.S. 244, 277 (First Amendment, Prohibition against Ex Post Facto Laws or
Bills of [354 U.S. 1, 9]
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.
339 U.S. 763 ; Turney v. United States, 126 Ct. Cl. 202, 115 F. Supp. 457,
464 (Just Compensation Clause of the Fifth Amendment).
[Footnote 11] See Dorr v. United States,
U.S. 138, 144 -148.
[Footnote 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
[Footnote 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,
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.
[Footnote 14] Rev. Stat. 4083-4130 (1878).
[Footnote 15] Id., 4086.
[Footnote 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.,
[Footnote 17] In re Ross, supra, at 464.
[Footnote 18] Ibid.
[Footnote 19] See cases cited in note 10,
[Footnote 20] See, e. g., Kawakita v. United
343 U.S. 717 ; United States v. Flores,
U.S. 137 ; United States v. Bowman,
U.S. 94 ; Chandler v. United States, 171 F.2d 921, cert. denied,
336 U.S. 918.
[Footnote 21] 70 Stat. 773.
[Footnote 22] Downes v. Bidwell,
U.S. 244 ; Hawaii v. Mankichi,
U.S. 197 ; Dorr v. United States,
U.S. 138 ; Balzac v. Porto Rico,
[Footnote 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;...."
[Footnote 24] Downes v. Bidwell,
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,
U.S. 343 ; Callan v. Wilson,
[Footnote 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.
[Footnote 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,
U.S. 516, 520 -521.
[Footnote 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.
[Footnote 28] In 1881, Senator Carpenter,
while attacking the consular courts "as a disgrace to this nation"
because they deprived citizens of the [354 U.S. 1, 15] "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.
[Footnote 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.
[Footnote 30] See Administrative Agreement, 3
U.S. Treaties and Other International Agreements 3341, T. I. A. S. 2492.
[Footnote 31] See the references collected in
4 Farrand, Records of the Federal Convention (Rev. ed. 1937), 123.
[Footnote 32] See the discussion in the
Virginia Convention on the adoption of the Constitution, 3 Elliot's Debates
(1836 ed.) 500-519.
[Footnote 33] E. g., United States v.
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.
[Footnote 34] In Whitney v. Robertson,
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,
U.S. 580 ; Botiller v. Dominguez,
U.S. 238 ; Chae Chan Ping v. United States,
U.S. 581. See Clark v. Allen,
331 U.S. 503, 509 -510; Moser v. United States,
341 U.S. 41, 45.
[Footnote 35] See United States v. Darby,
312 U.S. 100, 124 -125, and the authorities collected there.
[Footnote 36] Dynes v. Hoover, 20 How. 65; Ex
[Footnote 37] See note 7, supra.
[Footnote 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.
[Footnote 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.
[Footnote 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,
[Footnote 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.
[Footnote 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 [354 U.S.
1, 24] 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,
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.
[Footnote 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."
[Footnote 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 [354 U.S. 1, 25]
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), 37-42. 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
[Footnote 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
[354 U.S. 1, 26] 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, 18-20, 424-425.
[Footnote 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.
[Footnote 47] 1 Will. & Mar., c. 2.
[Footnote 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), 40-41.
[Footnote 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 Archieves,
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.
[Footnote 50] 4 Geo. III, c. 15; 8 Geo. III,
[Footnote 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 ancient 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.
[Footnote 52] 43 Harvard Classics 147, 148.
[Footnote 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,
[Footnote 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 [354 U.S.
1, 30] 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.
[Footnote 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.
[Footnote 56] 4 Wall., at 122-123.
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
[354 U.S. 1, 32] 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.
[Footnote 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 forces."
[Footnote 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.
[Footnote 60] See, e. g., American Articles of
War of 1775, Art. XXXII 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 [354 U.S. 1,
34] 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.
[Footnote 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).
[Footnote 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.,
U.S. 146, 156 ; United States v. Commodities Trading Corp.,
339 U.S. 121, 125.
[Footnote 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.
[Footnote 64] Winthrop, Military Law and
Precedents (2d ed., Reprint 1920), 107.
[Footnote 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.
[Footnote 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 [354 U.S. 1, 37]
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.
[Footnote 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.
[Footnote 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,
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,
U.S. 553 , this Court held that the President or commanding officer had
power to return a case to a court-martial for an
[354 U.S. 1, 38]
increase in sentence. If the double jeopardy provisions of the Fifth Amendment
were applicable such a practice would be unconstitutional. Cf. Kepner v. United
[Footnote 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, 1941 Supp., 357.
[Footnote 70] See Ex parte Quirin,
317 U.S. 1, 28 -29; United States v. Eliason, 16 Pet. 291, 301; Swaim v.
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.
[Footnote 71] Art. 36, UCMJ, 50 U.S.C. 611.
[Footnote 72] United States ex rel. Toth v.
350 U.S. 11, 17.
[Footnote 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.
[Footnote 74] Boyd v. United States,
U.S. 616, 635.
[Footnote 75] 3 Rushworth, Historical
Collections, App. 81.