U.S. Supreme Court Reid v. Covert, 354 U.S. 1 (1957) Reid v. Covert 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 354 U.S.
1 ON REHEARING * Syllabus 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withdrawn.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. 354 U. S.
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. 354 U. S.
5 -14. Page 354 U. S. 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. 354 U. S.
15 -19.

															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. 354 U. S.
19 -40.

															4. Under our Constitution, courts of law alone are given power
to try civilians for their offenses against the United States. Pp. 354 U. S.
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. 354 U. S.
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. 354 U. S.
65 -78. Page 354 U. S. 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 BRENNAN join.

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

															In No. 701, Mrs. Clarice Covert killed her husband, a sergeant
in the United States Air Force, at an airbase in England. Mrs.
Covert, who was not a member of the armed services, was residing on
the base with her husband at the time. She was tried by a
court-martial for murder under Article 118 of the Uniform Code of
Military Justice (UCMJ). [ Footnote
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, [ Footnote 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, Page 354 U. S. 4 all persons serving with, employed by, or accompanying the armed
forces without the continental limits of the United States. . .
."

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

															In No. 713, Mrs. Dorothy Smith killed her husband, an Army
officer, at a post in Japan where she was living with him. She was
tried for murder by a court-martial and, despite considerable
evidence that she was insane, was found guilty and sentenced to
life imprisonment. The judgment was approved by the Army Board of
Review, 10 CMR 350, 13 CMR 307, and the Court of Military Appeals,
5 U.S.C.MA 314. Mrs. Smith was then confined in a federal
penitentiary in West Virginia. Her father, respondent here, filed a
petition for habeas corpus in a District Court for West Virginia.
The petition charged that the court-martial was without
jurisdiction because Article 2(11) of the UCMJ was unconstitutional
insofar as it authorized the trial of civilian dependents
accompanying Page 354 U. S. 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 constitutional. 351 U. S. 351 U.S.
470, 351 U. S. 487 . The
majority held that the provisions of Article III and the Fifth and
Sixth Amendments which require that crimes be tried by a jury after
indictment by a grand jury did not protect an American citizen when
he was tried by the American Government in foreign lands for
offenses committed there, and that Congress could provide for the
trial of such offenses in any manner it saw fit, so long as the
procedures established were reasonable and consonant with due
process. The opinion then went on to express the view that military
trials, as now practiced, were not unreasonable or arbitrary when
applied to dependents accompanying members of the armed forces
overseas. In reaching their conclusion, the majority found it
unnecessary to consider the power of Congress "To make Rules for
the Government and Regulation of the land and naval Forces" under
Article I of the Constitution.

															Subsequently, the Court granted a petition for rehearing, 352
U.S. 901. Now, after further argument and consideration, we
conclude that the previous decisions cannot be permitted to stand.
We hold that Mrs. Smith and Mrs. Covert could not constitutionally
be tried by military authorities. I At the beginning, we reject the idea that, when the United
States acts against citizens abroad, it can do so free of the Bill
of Rights. The United States is entirely Page 354 U. S. 6 a creature of the Constitution. [ Footnote 3 ] Its power and authority have no other source.
It can only act in accordance with all the limitations imposed by
the Constitution. [ Footnote 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. [ Footnote 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 Page 354 U. S. 7 of Government by express provisions of our written Constitution.
[ Footnote 6 ]

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

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

															The Fifth Amendment declares:

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

															And the Sixth Amendment provides:

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

															The language of Art. III, § 2 manifests that constitutional
protections for the individual were designed to restrict the United
States Government when it acts outside of this country, as well as
here at home. After declaring that all criminal trials must be by
jury, the section states that, when a crime is "not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed." If Page 354 U. S. 8 this language is permitted to have its obvious meaning,
[ Footnote 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. [ Footnote 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." [ Footnote 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. [ Footnote 10 ] While it has been suggested that
only Page 354 U. S. 9 those constitutional rights which are "fundamental" protect
Americans abroad, [ Footnote
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. [ Footnote
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 Page 354 U. S. 10 liberty, or his person, but by the unanimous consent of twelve
of his neighbours and equals. [ Footnote 13 ]"

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

															The keystone of supporting authorities mustered by the Court's
opinion last June to justify its holding that Art. III, § 2, and
the Fifth and Sixth Amendments did not apply abroad was In re
Ross, 140 U. S. 453 . The Ross case is one of those cases that cannot be understood
except in its peculiar setting; even then, it seems highly unlikely
that a similar result would be reached today. Ross was serving as a
seaman on an American ship in Japanese waters. He killed a ship's
officer, was seized and tried before a consular "court" in Japan.
At that time, statutes authorized American consuls to try American
citizens charged with committing crimes in Japan and certain other
"non-Christian" countries. [ Footnote 14 ] These Page 354 U. S. 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.
[ Footnote 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.
[ Footnote 16 ] Nevertheless,
the Court sustained Ross' conviction by the consul. It stated that
constitutional Page 354 U. S. 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." [ Footnote
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."
[ Footnote 18 ]

															The Ross approach that the Constitution has no
applicability abroad has long since been directly repudiated by
numerous cases. [ Footnote
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. [ Footnote 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. [ Footnote 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 Page 354 U. S. 13 to the trial of Mrs. Smith and Mrs. Covert. [ Footnote 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, [ Footnote 23 ] had entirely different
cultures and customs from those of this country. This Court,
although closely divided, [ Footnote 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, [ Footnote 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. [ Footnote 26 ] Page 354 U. S. 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. [ Footnote 27 ] But we have no authority, or
inclination, to read exceptions into it which are not there.
[ Footnote 28 ] Page 354 U. S. 15 II At the time of Mrs. Covert's alleged offense, an executive
agreement was in effect between the United States and Great Britain
which permitted United States' military courts to exercise
exclusive jurisdiction over offenses committed in Great Britain by
American servicemen or their dependents. [ Footnote 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 Page 354 U. S. 16 killed her husband. [ Footnote
30 ] Even though a court-martial does not give an accused trial
by jury and other Bill of Rights protections, the Government
contends that Art. 2 (11) of the UCMJ, insofar as it provides for
the military trial of dependents accompanying the armed forces in
Great Britain and Japan, can be sustained as legislation which is
necessary and proper to carry out the United States' obligations
under the international agreements made with those countries. The
obvious and decisive answer to this, of course, is that no
agreement with a foreign nation can confer power on the Congress,
or on any other branch of Government, which is free from the
restraints of the Constitution.

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

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

															There is nothing in this language which intimates that treaties
and laws enacted pursuant to them do not have to comply with the
provisions of the Constitution. Nor is there anything in the
debates which accompanied the drafting and ratification of the
Constitution which even suggests such a result. These debates, as
well as the history that surrounds the adoption of the treaty
provision in Article VI, make it clear that the reason treaties
were not limited to those made in "pursuance" of the Constitution
was so that agreements made by the United States under the Articles
of Confederation, including the important peace treaties which
concluded the Revolutionary Page 354 U. S. 17 War, would remain in effect. [ Footnote 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. [ Footnote 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. [ Footnote 33 ] For example, in Geofroy v. Riggs, 133 U. S. 258 , 133 U. S. 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 Page 354 U. S. 18 government, or in that of one of the States, or a cession of any
portion of the territory of the latter, without its consent."

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

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

															In summary, we conclude that the Constitution in its entirety
applied to the trials of Mrs. Smith and Mrs. Page 354 U. S. 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. III Article I, § 8, cl. 14 empowers Congress "To make Rules for the
Government and Regulation of the land and naval Forces." It has
been held that this creates an exception to the normal method of
trial in civilian courts as provided by the Constitution, and
permits Congress to authorize military trial of members of the
armed services without all the safeguards given an accused by
Article III and the Bill of Rights. [ Footnote 36 ] But if the language of Clause 14 is given
its natural meaning, [ Footnote
37 ] the power granted does not extend to civilians -- even
though they may be dependents living with servicemen on a military
base. [ Footnote 38 ] The term
"land and naval Forces" refers to persons Page 354 U. S. 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. [ Footnote 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 Page 354 U. S. 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. [ Footnote 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 17 U. S. 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.
" Page 354 U. S. 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 -- safeguards
which cannot be given in a military trial. In the light of these as
well as other constitutional provisions, and the historical
background in which they were formed, military trial of civilians
is inconsistent with both the "letter and spirit of the
constitution."

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

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

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

															Even if it were possible, we need not attempt here to precisely
define the boundary between "civilians" and members of the "land
and naval Forces." We recognize Page 354 U. S. 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. [ Footnote 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. [ Footnote 42 ] The
Founders envisioned the Page 354 U. S. 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. [ Footnote 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. [ Footnote 44 ] Page 354 U. S. 25 This court-martialing of soldiers in peacetime evoked strong
protests from Parliament. [ Footnote 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 Page 354 U. S. 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. [ Footnote
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. [ Footnote 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; Page 354 U. S. 27 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. [ Footnote 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 Page 354 U. S. 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 fundamental rights of subjects, and contrary to the
law and franchise of the land? . . . Will the spirits of people as
yet unsubdued by tyranny, unawed by the menaces of arbitrary power,
submit to be governed by military force? No, Let us rouse our
attention to the common law -- which is our birthright, our great
security against all kinds of insult and oppression. . . .
[ Footnote 49 ]"

															Colonials had also seen the right to trial by jury subverted by
acts of Parliament which authorized courts of admiralty to try
alleged violations of the unpopular Page 354 U. S. 29 "Molasses" and "Navigation" Acts. [ Footnote 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.
[ Footnote 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. [ Footnote 52 ]

															With this background, it is not surprising that the Declaration
of Independence protested that George III had "affected to render
the Military independent of and superior to the Civil Power," and
that Americans had been deprived in many cases of "the benefits of
Trial by Jury." [ Footnote
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. [ Footnote 54 ]
Perhaps they Page 354 U. S. 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 individual freedom.

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

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

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

															On several occasions, this Court has been faced with an
attempted expansion of the jurisdiction of military courts. Ex parte
Milligan , 4 Wall. 2, one of the great landmarks in
this Court's history, held that military authorities were without
power to try civilians not in the military or naval service by
declaring martial law in an area where the civil Page 354 U. S. 31 administration was not deposed and the courts were not closed.
[ Footnote 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.
[ Footnote 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,
[ Footnote 57 ] Page 354 U. S. 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. [ Footnote 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 Page 354 U. S. 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. [ Footnote 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. [ Footnote 60 ] But neither Japan Page 354 U. S. 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.
[ Footnote 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 Page 354 U. S. 35 broad, [ Footnote 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.
[ Footnote 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. " [ Footnote
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, Page 354 U. S. 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 civilian courts.

															Courts-martial are typically ad hoc bodies appointed by
a military officer from among his subordinates. They have always
been subject to varying degrees of "command influence." [ Footnote 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. [ Footnote 66 ] Page 354 U. S. 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.
[ Footnote 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. [ Footnote 68 ] Page 354 U. S. 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. [ Footnote 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. [ Footnote 70 ] In any event, Congress has given the
President broad discretion to provide the rules governing military
trials. [ Footnote 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 Page 354 U. S. 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.
[ Footnote 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. [ Footnote 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 Page 354 U. S. 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. [ Footnote
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 Page 354 U. S. 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. [ Footnote 75 ]"

															In No. 701, Reid v. Covert, the judgment of the
District Court directing that Mrs. Covert be released from custody
is Affirmed. In No. 713, Kinsella v. Krueger, the judgment of the
District Court is reversed and the case is remanded with
instructions to order Mrs. Smith released from custody. Reversed and remanded. MR. JUSTICE WHITTAKER took no part in the consideration or
decision of these cases.

															* 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.

															[ 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, 71 U. S. 119 , 71 U. S. 136 -137; Graves v. New York ex rel. O'Keefe, 306 U.
S. 466 , 306 U. S. 477 ; Ex parte Quirin, 317 U. S. 1 , 317 U. S. 25 .

															[ Footnote 4 ] Marbury v.
Madison , 1 Cranch 137, 5 U. S. 176 -180; Hawaii v. Mankichi, 190 U. S. 197 , 190 U. S.
236 -239 (Harlan, J., dissenting).

															[ Footnote 5 ]

															2 Clode, Military Forces of the Crown, 175.

															[ Footnote 6 ] Cf. 32 U. S. Baltimore, 7 Pet. 243, 32 U. S.
250 .

															[ 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., 25 U. S. Saunders, 12 Wheat. 213, 25 U. S.
302 -303; Lake Count v. Rollins, 130 U.
S. 662 , 130 U. S.
670 -671. In United States v. Sprague, 282 U. S. 716 , 282 U. S.
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 offences 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 Rico, 258 U.
S. 298 , 258 U. S.
312 -313 (Due Process of Law); Downes v.
Bidwell, 182 U. S. 244 , 182 U. S. 277 (First Amendment, Prohibition against Ex Post Facto Laws
or Bills of Attainder); Mitchell v.
Harmony , 13 How. 115, 54 U. S. 134 (Just Compensation Clause of the Fifth Amendment); Best v.
United States, 184 F.2d 131, 138 (Fourth Amendment); Eisentrager v. Forrestal, 84 U.S.App.D.C. 396, 174 F.2d
961 (Right to Habeas Corpus), rev'd on other grounds sub nom.
Johnson v. Eisentrager, 339 U. S. 763 ; Turney v. United States, 126 Ct.Cl. 202, 115 F. Supp. 457,
464 (Just Compensation Clause of the Fifth Amendment).

															[ Footnote 11 ] See Dorr v. United States, 195 U.
S. 138 , 195 U. S.
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 id. passim. [ Footnote 13 ]

															3 Blackstone's Commentaries 379. As to the importance of trial
by jury, See also Ex parte
Milligan , 4 Wall. 2, 71 U. S. 122 -123; Thompson v. Utah, 170 U. S. 343 , 170 U. S.
349 -350; United States ex rel. Toth v. Quarles, 350 U. S. 11 , 350 U. S. 16 , 350 U. S. 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. at 7.

															[ Footnote 17 ] In re Ross, supra, at 140 U. S.
464 .

															[ Footnote 18 ] Ibid. [ Footnote 19 ] See cases cited in note 10 supra. [ Footnote 20 ] See, e.g., Kawakita v. United States, 343 U.
S. 717 , United States v. Flores, 289 U.
S. 137 ; United States v. Bowman, 260 U. S.
94 ; Chandler v. United States, 171 F.2d 921, cert. denied, 336 U.S. 918.

															[ Footnote 21 ]

															70 Stat. 773.

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

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

															[ 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, 197 U. S. 516 , 197 U. S.
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 "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. Minnesota, 270 U.
S. 181 , 270 U. S.
207 -208; Holden v. Joy , 17 Wall. 211, 84 U. S.
242 -243; The Cherokee
Tobacco , 11 Wall. 616, 78 U. S.
620 -621; Doe v. Braden , 16 How. 635, 57 U. S. 657 . Cf. 5 U. S. Madison, 1 Cranch 137, 5 U. S. 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, 124 U.
S. 190 , the Court stated, at p. 124 U. S.
194 :

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

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

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

															[ 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, 379."

															[ 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 Anne, c. 13, § 43; 1 Geo. I, c. 34. See the British War Office, Manual of Military Law (7th
ed.1929), 10-14. For colonial reaction to military trial of
soldiers in this country in the period preceding the revolution see text at note 49 and
the authorities referred to there It was not until 1863 that Congress first authorized the trial
of soldiers, in wartime, for civil crimes such as murder, arson,
rape, etc., by courts-martial. 12 Stat. 736. Previously, the
soldiers had been turned over to state authorities for trial in
state courts. In Coleman v. Tennessee, 97 U. S.
509 , this Court declined to construe the 1863 statute as
depriving civilian courts of a concurrent jurisdiction to try
soldiers for crimes. The Court said:

															"With the known hostility of the American people to any
interference by the military with the regular administration of
justice in the civil courts, no such intention should be ascribed
to Congress in the absence of clear and direct language to that
effect." Id. at 97 U. S.
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 war, the Common Law recognized an exception that permitted
armies to try soldiers "in the field." The pages of English history
are filled with the struggle of the common law courts and
Parliament against the jurisdiction of military tribunals. See,
for example, 8 Richard II, c. 5; 13 Richard II, cc. 2, 5; 1
Henry IV, c. 14; 18 Henry VI, c.19; 3 Car. I, c. 1. See 3
Rushworth, Historical Collections, App. 76-81.

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

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

															[ 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 such offenders, and them to cause to be executed
and put to death according to the law martial: "

															" * * * *" "[Your Majesty's subjects] do therefore humbly pray your most
excellent Majesty . . . that the aforesaid commissions, for
proceeding by martial law, may be revoked and annulled, and that
hereafter no commissions of like nature may issue forth to any
person or persons whatsoever to be executed as aforesaid, lest by
colour of them any of your Majesty's subjects be destroyed, or put
to death contrary to the laws and franchise of the land." See also 1 Clode, Military Forces of the Crown, 120,
424-425.

															[ 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), 441.

															[ 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
Archives, Fourth Series (Force ed.), 1865, 1868.

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

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

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

															Thorpe, The Federal and State Constitutions, 3242.

															[ Footnote 50 ]

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

															[ 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 antient limits, thereby depriving us of the
inestimable right of trial by jury in cases affecting both life and
property and subjecting both to the arbitrary decision of a single
and dependent judge."

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

															[ 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, (Virginia)
3813-3814.

															[ 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 Convention of 1787, in Documents
Illustrative of the Formation of The Union of The American States,
H.R.Doc. No. 398, 69th Cong., 1st Sess. 564-571, 600-602; Warren,
The Making of the Constitution (1947 ed.), 482-484, 517-521. The
Federalist, Nos. 26, 27, 28, 41; Elliot's Debates (2d ed. 1836) passim. [ 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 71 U. S.
122 -123.

															[ Footnote 57 ]

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

															[ 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 force."

															[ 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 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 71 U. S. 120 ,
declares:

															"The Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield of
its protection all classes of men, at all times, and under all
circumstances. No doctrine involving more pernicious consequences
was ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of
government." Also see Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S. 156 ; United States v. Commodities Trading Corp., 339 U.
S. 121 , 339 U. S.
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 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 , 346 U. S. 146 , 346 U. S. 148 , 346 U. S. 150 ;
Note, 70 Harv.L.Rev. 1043, 1050-1053. But see Jackson v.
Taylor, 353 U. S. 569 ; In re Grimley, 137 U. S. 147 , 137 U. S. 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 , 317 U. S. 40 . In Swaim v. United States, 165 U. S. 553 ,
this Court held that the President or commanding officer had power
to return a case to a court-martial for an increase in sentence. If
the double jeopardy provisions of the Fifth Amendment were
applicable, such a practice would be unconstitutional. Cf.
Kepner v. United States, 195 U. S. 100 .

															[ 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, 941 Supp. 357.

															[ Footnote 70 ] See Ex parte Quirin, 317 U. S. 1 , 317 U. S. 28 -29; United States v.
Eliason , 16 Pet. 291, 41 U. S. 301 ; Swaim v. United States, 165 U. S. 553 . Cf. General Orders, No. 100, Official Records, War of
Rebellion, Ser. III, Vol. III, April 24, 1863; 15 Op.Atty.Gen. 297
and Note attached.

															[ Footnote 71 ]

															Art. 36, UCMJ, 50 U.S.C. § 611.

															[ Footnote 72 ] United States ex rel. Toth v. Quarles, 350 U. S.
11 , 350 U. S.
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, 116 U. S. 616 , 116 U. S.
635 .

															[ Footnote 75 ]

															3 Rushworth, Historical Collections, App. 81.

															MR. JUSTICE FRANKFURTER, concurring in the result.

															These cases involve the constitutional power of Congress to
provide for trial of civilian dependents accompanying members of
the armed forces abroad by court-martial in capital cases. The
normal method of trial of federal offenses under the Constitution
is in a civilian tribunal. Trial of offenses by way of
court-martial, with all the characteristics of its procedure so
different from the forms and safeguards of procedure in the
conventional courts, is an exercise of exceptional jurisdiction,
arising from the power granted to Congress in Art. I, § 8, cl. 14,
of the Constitution of the United States "To make Rules for the
Government and Regulation Page 354 U. S. 42 of the land and naval Forces." Dynes v.
Hoover , 20 How. 65; see Toth v. Quarles, 350 U. S. 11 ;
Winthrop, Military Law and Precedents (2d ed. 1896), 52. Article
2(11) of the Uniform Code of Military Justice, 64 Stat. 107, 109,
50 U.S.C. § 552(11), and its predecessors were passed as an
exercise of that power, and the agreements with England and Japan
recognized that the jurisdiction to be exercised under those
agreements was based on the relation of the persons involved to the
military forces. See the agreement with Great Britain, 57
Stat. 1193, E.A.S. No. 355, and the United States of America
(Visiting Forces) Act, 1942, 5 & 6 Geo. VI, c. 31, and the 1952
Administrative Agreement with Japan, 3 U.S. Treaties and Other
International Agreements 3341, T.I.A.S. 2492.

															Trial by court-martial is constitutionally permissible only for
persons who can, on a fair appraisal, be regarded as falling within
the authority given to Congress under Article I to regulate the
"land and naval Forces," and who therefore are not protected by
specific provisions of Article III and the Fifth and Sixth
Amendments. It is, of course, true that, at least regarding the
right to a grand jury indictment, the Fifth Amendment is not
unmindful of the demands of military discipline. [ Footnote 2/1 ] Within the scope of appropriate
construction, the phrase "except in cases arising in the land and
naval Forces" has been assumed also to modify the guaranties of
speedy and public trial Page 354 U. S. 43 by jury. And so the problem before us is not to be answered by
recourse to the literal words of this exception. The cases cannot
be decided simply by saying that, since these women were not in
uniform, they were not "in the land and naval Forces." The Court's
function in constitutional adjudications is not exhausted by a
literal reading of words. It may be tiresome, but it is nonetheless
vital, to keep our judicial minds fixed on the injunction that "it
is a constitution we are expounding." M'Culloch
v. Maryland , 4 Wheat. 316, 17 U. S. 407 .
Although Winthrop, in his treatise, states that the Constitution
"clearly distinguishes the military from the civil class as
separate communities," and

															"recognizes no third class which is part civil and part military
-- military for a particular purpose or in a particular situation,
and civil for all other purposes and in all other situations . . .
,"

															Winthrop, Military Law and Precedents (2d ed. 1896), 145, this
Court, applying appropriate methods of constitutional
interpretation, has long held, and in a variety of situations,
that, in the exercise of a power specifically granted to it,
Congress may sweep in what may be necessary to make effective the
explicitly worded power. See Jacob Ruppert v. Caffey, 251 U. S. 264 ,
especially 251 U. S. 289 et seq.; Purity Extract Co. v. Lynch, 226 U. S. 192 , 226 U. S. 201 ; Railroad Commission v. Chicago, Burlington & Quincy R.
Co., 257 U. S. 563 , 257 U. S. 588 .
This is the significance of the Necessary and Proper Clause, which
is not to be considered so much a separate clause in Art. I, § 8,
as an integral part of each of the preceding 17 clauses. Only thus
may be avoided a strangling literalness in construing a document
that is not an enumeration of static rules but the living framework
of government designed for an undefined future. M'Culloch
v. Maryland , 4 Wheat. 316; Hurtado v.
California, 110 U. S. 516 , 110 U. S.
530 -531.

															Everything that may be deemed, as the exercise of an allowable
judgment by Congress, to fall fairly within the Page 354 U. S. 44 conception conveyed by the power given to Congress "To make
Rules for the Government and Regulation of the land and naval
Forces" is constitutionally within that legislative grant, and not
subject to revision by the independent judgment of the Court. To be
sure, every event or transaction that bears some relation to "the
land and naval Forces" does not ipso facto come within the
tolerant conception of that legislative grant. The issue in these
cases involves regard for considerations not dissimilar to those
involved in a determination under the Due Process Clause.
Obviously, the practical situations before us bear some relation to
the military. Yet the question for this Court is not merely whether
the relation of these women to the "land and naval Forces" is
sufficiently close to preclude the necessity of finding that
Congress has been arbitrary in its selection of a particular method
of trial. For, although we must look to Art. I, § 8, cl. 14, as the
immediate justifying power, it is not the only clause of the
Constitution to be taken into account. The Constitution is an
organic scheme of government to be dealt with as an entirety. A
particular provision cannot be dissevered from the rest of the
Constitution. Our conclusion in these cases therefore must take due
account of Article III and the Fifth and Sixth Amendments. We must
weigh all the factors involved in these cases in order to decide
whether these women dependents are so closely related to what
Congress may allowably deem essential for the effective "Government
and Regulation of the land and naval Forces" that they may be
subjected to court-martial jurisdiction in these capital cases,
when the consequence is loss of the protections afforded by Article
III and the Fifth and Sixth Amendments.

															We are not concerned here even with the possibility of some
alternative non-military type of trial that does Page 354 U. S. 45 not contain all the safeguards of Article III and the Fifth and
Sixth Amendments. We must judge only what has been enacted and what
is at issue. It is the power actually asserted by Congress under
Art. I, § 8, cl. 14, that must now be adjudged in the light of
Article III and the Fifth and Sixth Amendments. In making this
adjudication, I must emphasize that it is only the trial of
civilian dependents in a capital case in time of peace that is in
question. The Court has not before it, and therefore I need not
intimate any opinion on, situations involving civilians, in the
sense of persons not having a military status, other than
dependents. Nor do we have before us a case involving a non-capital
crime. This narrow delineation of the issue is merely to respect
the important restrictions binding on the Court when passing on the
constitutionality of an Act of Congress.

															"In the exercise of that jurisdiction, it is bound by two rules,
to which it has rigidly adhered, one, never to anticipate a
question of constitutional law in advance of the necessity of
deciding it; the other never to formulate a rule of constitutional
law broader than is required by the precise facts to which it is to
be applied. These rules are safe guides to sound judgment. It is
the dictate of wisdom to follow them closely and carefully." Steamship Co. v. Emigration Commissioners, 113 U. S.
33 , 113 U. S.
39 .

															We are also not concerned here with the substantive aspects of
the grant of power to Congress to "make Rules for the Government
and Regulation of the land and naval Forces." What conduct should
be punished and what constitutes a capital case are matters for
congressional discretion, always subject, of course, to any
specific restrictions of the Constitution. These cases involve the
validity of procedural conditions for determining the commission of
a crime, in fact, punishable by death. The taking of life is
irrevocable. It is in capital cases especially Page 354 U. S. 46 that the balance of conflicting interests must be weighted most
heavily in favor of the procedural safeguards of the Bill of
Rights. Thus, in Powell v. Alabama, 287 U. S.
45 , 287 U. S. 71 ,
the fact "above all that they stood in deadly peril of their lives"
led the Court to conclude that the defendants had been denied due
process by the failure to allow them reasonable time to seek
counsel and the failure to appoint counsel. I repeat. I do not mean
to imply that the considerations that are controlling in capital
cases involving civilian dependents are constitutionally irrelevant
in capital cases involving civilians other than dependents or in
non-capital cases involving dependents or other civilians. I do say
that we are dealing here only with capital cases and civilian
dependents.

															The Government asserts that civilian dependents are an integral
part of our armed forces overseas, and that there is substantial
military necessity for subjecting them to court-martial
jurisdiction. The Government points out that civilian dependents go
military community, enjoy the privileges of military facilities,
and that their conduct inevitably tends to influence military
discipline.

															The prosecution by court-martial for capital crimes committed by
civilian dependents of members of the armed forces abroad is hardly
to be deemed, under modern conditions, obviously appropriate to the
effective exercise of the power to "make Rules for the Government
and Regulation of the land and naval Forces" when it is a question
of deciding what power is granted under Article I, and therefore
what restriction is made on Article III and the Fifth and Sixth
Amendments. I do not think that the proximity, physical and social,
of these women to the "land and naval Forces" is, with due regard
to all that has been put before us, so clearly demanded by the
effective "Government and Regulation" Page 354 U. S. 47 of those forces as reasonably to demonstrate a justification for
court-martial jurisdiction over capital offenses.

															The Government speaks of the "great potential impact on military
discipline" of these accompanying civilian dependents. This cannot
be denied, nor should its implications be minimized. But the notion
that discipline over military personnel is to be furthered by
subjecting their civilian dependents to the threat of capital
punishment imposed by court-martial is too hostile to the reasons
that underlie the procedural safeguards of the Bill of Rights for
those safeguards to be displaced. It is true that military
discipline might be affected seriously if civilian dependents could
commit murders and other capital crimes with impunity. No one,
however, challenges the availability to Congress of a power to
provide for trial and punishment of these dependents for such
crimes. [ Footnote 2/2 ] The method
of trial alone is in issue. The Government suggests that, if trial
in an Article III court subject to the restrictions of the Fifth
and Sixth Amendments is the only alternative, such a trial could
not be held abroad practicably, and it would often be equally
impracticable to transport all the witnesses back to the United
States for trial. But, although there is no need to pass on that
issue in this case, trial in the United States is obviously not the
only practical alternative, and other alternatives may raise
different constitutional questions. The Government's own figures
for the Army show that the total number of civilians (all civilians
"serving with, employed by, or accompanying the armed forces"
overseas and not merely civilian dependents) for whom general
courts-martial for alleged Page 354 U. S. 48 murder were deemed advisable [ Footnote 2/3 ] was only 13 in the 7 fiscal years
1950-1956. It is impossible to ascertain from the figures supplied
to us exactly how many persons were tried for other capital
offenses, but the figures indicate that there could not have been
many. There is nothing to indicate that the figures for the other
services are more substantial. It thus appears to be a manageable
problem within the procedural restrictions found necessary by this
opinion.

															A further argument is made that a decision adverse to the
Government would mean that only a foreign trial could be had. Even
assuming that the NATO Status of Forces Agreement, 4 U.S. Treaties
and Other International Agreements 1792, T.I.A.S. 2846, covering
countries where a large part of our armed forces are stationed,
gives jurisdiction to the United States only through its military
authorities, this Court cannot speculate that any given nation
would be unwilling to grant or continue such extraterritorial
jurisdiction over civilian dependents in capital cases if they were
to be tried by some other manner than court-martial. And even if
such were the case, these civilian dependents would then Page 354 U. S. 49 merely be in the same position as are so many federal employees
and their dependents and other United States citizens who are
subject to the laws of foreign nations when residing there.
[ Footnote 2/4 ] See also the NATO Status of Forces Agreement, supra, Art. VII, §§
2, 3.

															The Government makes the final argument that these civilian
dependents are part of he United States military contingent abroad
in the eyes of the foreign nations concerned, and that their
conduct may have a profound effect on our relations with these
countries, with a consequent effect on the military establishment
there. But the argument that military court-martials in capital
cases are necessitated by this factor assumes either that a
military court-martial constitutes a stronger deterrent to this
sort of conduct or that, in the absence of such a trial, no
punishment would be meted out, and our foreign policy thereby
injured. The reasons why these considerations carry no conviction
have already been indicated.

															I therefore conclude that, in capital cases, the exercise of
court-martial jurisdiction over civilian dependents in time of
peace cannot be justified by Article I, considered in connection
with the specific protections of Article III and the Fifth and
Sixth Amendments.

															Since the conclusion thus reached differs from what the Court
decided last Term, a decent respect for the judicial process calls
for reexamination of the two grounds that then prevailed. The Court
sustained its action on the Page 354 U. S. 50 authority of the cases dealing with the power of Congress to
"make all needful Rules and Regulations" for the Territories,
reinforced by In re Ross, 140 U.
S. 453 , in which this Court, in 1891, sustained the
criminal jurisdiction of a consular court in Japan. [ Footnote 2/5 ] These authorities grew out
of, and related to, specific situations very different from those
now here. They do not control or even embarrass the problem before
us.

															Legal doctrines are not self-generated abstract categories. They
do not fall from the sky; nor are they pulled out of it. They have
a specific juridical origin and etiology. They derive meaning and
content from the circumstances that gave rise to them, and from the
purposes they were designed to serve. To these they are bound as is
a live tree to its roots. Doctrines like those expressed by the Ross case and the series of cases beginning with American Insurance Co. v.
Canter , 1 Pet. 511, must be placed in their
historical setting. They cannot be wrenched from it and
mechanically transplanted into an alien, unrelated context without
suffering mutilation or distortion.

															"If a precedent involving a black horse is applied to a case
involving a white horse, we are not excited. If it were an elephant
or an animal ferae naturae or a chose in action, then we
would venture into thought. The difference might make a difference.
We really are concerned about precedents chiefly when their facts
differ somewhat from the facts in the case at bar. Then there is a
gulf or hiatus that has to be bridged by a concern for principle
and a concern for practical results and practical wisdom."

															Thomas Reed Powell, Vagaries and Varieties in Constitutional
Interpretation, Page 354 U. S. 51 36. This attitude toward precedent underlies the whole system of
our case law. It was thus summarized by Mr. Justice Brandeis:

															"It is a peculiar virtue of our system of law that the process
of inclusion and exclusion, so often employed in developing a rule,
is not allowed to end with its enunciation, and that an expression
in an opinion yields later to the impact of facts unforeseen." Jaybird Mining Co. v. Weir, 271 U.
S. 609 , 271 U. S. 619 (dissenting). Especially is this attitude to be observed in
constitutional controversies.

															The territorial cases relied on by the Court last Term held that
certain specific constitutional restrictions on the Government did
not automatically apply in the acquired territories of Florida,
Hawaii, the Philippines, or Puerto Rico. In these cases, the Court
drew its decisions from the power of Congress to "make all needful
Rules and Regulations respecting the Territory . . . belonging to
the United States," for which provision is made in Art. IV, § 3.
The United States from time to time acquired lands in which many of
our laws and customs found an uncongenial soil because they ill
accorded with the history and habits of their people. Mindful of
all relevant provisions of the Constitution and not allowing one to
frustrate another -- which is the guiding thought of this opinion
-- the Court found it necessary to read Art. IV, § 3, together with
the Fifth and Sixth Amendments and Article III in the light of
those circumstances. The question arose most frequently with
respect to the establishment of trial by jury in possessions in
which such a system was wholly without antecedents. The Court
consistently held with respect to such "Territory" that
congressional power under Art. IV, § 3, was not restricted by the
requirement of Art. III, § 2, cl. 3, and the Sixth Amendment of
providing trial by jury.

															"If the right to trial by jury were a fundamental right which
goes wherever the jurisdiction of the Page 354 U. S. 52 United States extends, or if Congress, in framing laws for
outlying territory belonging to the United States, was obliged to
establish that system by affirmative legislation, it would follow
that, no matter what the needs or capacities of the people, trial
by jury, and in no other way, must be forthwith established,
although the result may be to work injustice and provoke
disturbance, rather than to aid the orderly administration of
justice. If the United States, impelled by its duty or advantage,
shall acquire territory peopled by savages, and of which it may
dispose or not hold for ultimate admission to Statehood, if this
doctrine is sound, it must establish there the trial by jury. To
state such a proposition demonstrates the impossibility of carrying
it into practice. Again, if the United States shall acquire by
treaty the cession of territory having an established system of
jurisprudence, where jury trials are unknown, but a method of fair
and orderly trial prevails under an acceptable and long-established
code, the preference of the people must be disregarded, their
established customs ignored and they themselves coerced to accept,
in advance of incorporation into the United States, a system of
trial unknown to them and unsuited to their needs. We do not think
it was intended, in giving power to Congress to make regulations
for the territories, to hamper its exercise with this
condition." Dorr v. United States, 195 U.
S. 138 , 195 U. S. 148 .
[ Footnote 2/6 ] Page 354 U. S. 53 The "fundamental right" test is the one which the Court has
consistently enunciated in the long series of cases -- e.g., 26 U. S. Co. v.
Canter, 1 Pet. 511; De Lima v. Bidwell, 182 U. S.
1 ; Downes v. Bidwell, 182 U.
S. 244 ; Dorr v. United States, 195 U.
S. 138 ; Balzac v. Porto Rico, 258 U.
S. 298 -- dealing with claims of constitutional
restrictions on the power of Congress to "make all needful Rules
and Regulations" for governing the unincorporated territories. The
process of decision appropriate to the problem led to a detailed
examination of the relation of the specific "Territory" to the
United States. This examination, in its similarity to analysis in
terms of "due process," is essentially the same as that to be made
in the present cases in weighing congressional power to make "Rules
for the Government and Regulation of the land and naval Forces"
against the safeguards of Article III and the Fifth and Sixth
Amendments.

															The results in the cases that arose by reason of the acquisition
of exotic "Territory" do not control the present cases, for the
territorial cases rest specifically on Art. IV, § 3, which is a
grant of power to Congress to deal with "Territory" and other
Government property. Of course, the power sought to be exercised in
Great Britain and Japan does not relate to "Territory." [ Footnote 2/7 ] The Court's Page 354 U. S. 54 opinions in the territorial cases did not lay down a broad
principle that the protective provisions of the Constitution do not
apply outside the continental limits of the United States. This
Court considered the particular situation in each newly acquired
territory to determine whether the grant to Congress of power to
govern "Territory" was restricted by a specific provision of the
Constitution. The territorial cases, in the emphasis put by them on
the necessity for considering the specific circumstances of each
particular case, are thus relevant in that they provide an
illustrative method for harmonizing constitutional provisions which
appear, separately considered, to be conflicting.

															The Court last Term relied on a second source of authority, the
consular court case, In re Ross, 140 U.
S. 453 . Pursuant to a treaty with Japan, Ross, a British
subject but a member of the crew of a United States ship, was tried
and convicted in a consular court in Yokohama for murder of a
fellow seaman while the ship was in Yokohama harbor. His
application for a writ of habeas corpus to a United States Circuit
Court was denied, 44 F. 185, and, on appeal here, the judgment was
affirmed. This Court set forth the ground of the Circuit Court,

															"the long and uniform acquiescence by the executive,
administrative and legislative departments of the government in the
validity of the legislation,"

															140 U.S. at 140 U. S. 461 ,
and then stated:

															"The Circuit Court might have found an additional ground for not
calling in question the legislation of Congress in the uniform
practice of civilized governments for centuries to provide consular
tribunals in other than Christian countries . . . for the Page 354 U. S. 55 trial of their own subjects or citizens for offences committed
in those countries, as well as for the settlement of civil disputes
between them, and in the uniform recognition, down to the time of
the formation of our government, of the fact that the establishment
of such tribunals was among the most important subjects for treaty
stipulations. . . ."

															" * * * *" "The treaty-making power vested in our government extends to all
proper subjects of negotiation with foreign governments. It can,
equally with any of the former or present governments of Europe,
make treaties providing for the exercise of judicial authority in
other countries by its officers appointed to reside therein."

															"We do not understand that any question is made by counsel as to
its power in this respect. His objection is to the legislation by
which such treaties are carried out. . . ."

															". . . By the Constitution, a government is ordained and
established 'for the United States of America,' and not for
countries outside of their limits. The guarantees it affords
against accusation of capital or infamous crimes, except by
indictment or presentment by a grand jury, and for an impartial
trial by a jury when thus accused, apply 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. . . . The Constitution can have no
operation in another country. When, therefore, the representatives
or officers of our government are permitted to exercise authority
of any kind in another country, it must be on such conditions as
the two countries may agree, the laws of neither one being
obligatory upon the other. The deck of a private Page 354 U. S. 56 American vessel, it is true, is considered for many purposes
constructively as territory of the United States, yet persons on
board of such vessels, whether officers, sailors, or passengers,
cannot invoke the protection of the provisions referred to until
brought within the actual territorial boundaries of the United
States. . . ."

															140 U.S. at 140 U. S.
462 -464.

															One observation should be made at the outset about the grounds
for decision in Ross. Insofar as the opinion expressed a
view that the Constitution is not operative outside the United
States -- and apparently Mr. Justice Field meant by "United States"
all lands over which the United States flag flew, see John
W. Burgess, How May the United States Govern Its Extra-Continental
Territory?, 14 Pol.Sci.Q. 1 (1899) -- it expressed a notion that
has long since evaporated. Governmental action abroad is performed
under both the authority and the restrictions of the Constitution
-- for example, proceedings before American military tribunals,
whether in Great Britain or in the United States, are subject to
the applicable restrictions of the Constitution. See opinions in Burns v. Wilson, 346 U.
S. 137 .

															The significance of the Ross case and its relevance to
the present cases cannot be assessed unless due regard is accorded
the historical context in which that case was decided. Ross is not rooted in any abstract principle or
comprehensive theory touching constitutional power or its
restrictions. It was decided with reference to a very particular,
practical problem with a long history. To be mindful of this does
not attribute to Mr. Justice Field's opinion some unavowed
historical assumption. On behalf of the whole Court, he spelled out
the considerations that controlled it:

															"The practice of European governments to send officers to reside
in foreign countries, authorized to Page 354 U. S. 57 exercise a limited jurisdiction over vessels and seamen of their
country, to watch the interests of their countrymen, and to assist
in adjusting their disputes and protecting their commerce, goes
back to a very early period, even preceding what are termed the
Middle Ages. . . . In other than Christian countries, they were, by
treaty stipulations, usually clothed with authority to hear
complaints against their countrymen and to sit in judgment upon
them when charged with public offences. After the rise of Islamism
and the spread of its followers over eastern Asia and other
countries bordering on the Mediterranean, the exercise of this
judicial authority became a matter of great concern. The intense
hostility of the people of Moslem faith to all other sects, and
particularly to Christians, affected all their intercourse and all
proceedings had in their tribunals. Even the rules of evidence
adopted by them placed those of different faith on unequal grounds
in any controversy with them. For this cause, and by reason of the
barbarous and cruel punishments inflicted in those countries and
the frequent use of torture to enforce confession from parties
accused, it was a matter of deep interest to Christian governments
to withdraw the trial of their subjects, when charged with the
commission of a public offence, from the arbitrary and despotic
action of the local officials. Treaties conferring such
jurisdiction upon these consuls were essential to the peaceful
residence of Christians within those countries and the successful
prosecution of commerce with their people."

															140 U.S. at 140 U. S.
462 -463.

															"It is true that the occasion for consular tribunals in Japan
may hereafter be less than at present, as every year that country
progresses in civilization and in the assimilation of its system of
judicial procedure Page 354 U. S. 58 to that of Christian countries, as well as in the improvement of
its penal statutes; but the system of consular tribunals . . . is
of the highest importance, and their establishment in other than
Christian countries, where our people may desire to go in pursuit
of commerce, will often be essential for the protection of their
persons and property." Id. at 140 U. S. 480 .
[ Footnote 2/8 ]

															It is important to have a lively sense of this background before
attempting to draw on the Ross case. Historians have
traced grants of extraterritorial rights as far back as the
permission given by Egypt in the 12th or 13th century B.C. to the
merchants of Tyre to establish factories on the Nile and to live
under their own law and practice their own religion. Numerous other
instances of persons living under their own law in foreign lands
existed in the later pre-Christian era and during the Roman Empire
and the so-called Dark and Middle Ages -- Greeks in Page 354 U. S. 59 Egypt, all sorts of foreigners in Rome, inhabitants of Christian
cities and states in the Byzantine Empire, the Latin kingdoms of
the Levant, and other Christian cities and states, Mohammedans in
the Byzantine Empire and China, and many others lived in foreign
lands under their own law. While the origins of this
extraterritorial jurisdiction may have differed in each country,
the notion that law was for the benefit of the citizens of a
country and its advantages not for foreigners appears to have
been.an important factor. Thus, there existed a long-established
custom of extraterritorial jurisdiction at the beginning of the
15th century when the complete conquest of the Byzantine Empire by
the Turks and the establishment of the Ottoman Empire substantially
altered political relations between Christian Europe and the Near
East. But commercial relations continued, and in 1535, Francis I of
France negotiated a treaty with Suleiman I of Turkey that provided
for numerous extraterritorial rights, including criminal and civil
jurisdiction over all disputes among French subjects. 1 Ernest
Charriere, Negociations de la France dans le Levant 283. Other
nations, and eventually the United States in 1830, 8 Stat. 408,
later negotiated similar treaties with the Turks. (For a more
complete history of the development of extraterritorial rights and
consular jurisdiction, see 1 Calvo, Le Droit International
Theorique et Pratique (5th ed., Rousseau, 1896), 2-18, 2 id. 9-12; Hinckley, American Consular Jurisdiction in the
Orient, 1-9; 1 Miltitz, Manuel des Consuls passim; Ravndal, The Origin of the Capitulations and of the Consular
Institution, S.Doc. No. 34, 67th Cong., 1st Sess. 5-45, 56-96; Shih
Shun Liu, Extraterritoriality, 23-66, 118 Studies in History,
Economics and Public Law, Columbia University (1925); Twiss, The
Law of Nations (Rev. ed. 1884), 443-457.) Page 354 U. S. 60 The emergence of the nation state in Europe and the growth of
the doctrine of absolute territorial sovereignty changed the nature
of extraterritorial rights. No longer were strangers to be denied
the advantages of local law. Indeed, territorial sovereignty meant
the exercise of sovereignty over all residents within the borders
of the state, and the system of extraterritorial consular
jurisdiction tended to die out among Christian nations in the 18th
and 19th centuries. But a new justification was found for the
continuation of that jurisdiction in those countries whose systems
of justice were considered inferior, and it was this strong feeling
with respect to Moslem and Far Eastern countries that was
reflected, as we have seen, in the Ross opinion.

															Until 1842, China had asserted control over all foreigners
within its territory, Shih Shun Liu, op. cit. supra, 76-89, but, as a result of the Opium War, Great Britain negotiated
a treaty with China whereby she obtained consular offices in five
open ports and was granted extraterritorial rights over her
citizens. On July 3, 1844, Caleb Cushing negotiated a similar
treaty on behalf of the United States. 8 Stat. 592. In a letter to
Secretary of State Calhoun, he explained:

															"I entered China with the formed general conviction that the
United States ought not to concede to any foreign state, under any
circumstances, jurisdiction over the life and liberty of a citizen
of the United States unless that foreign state be of our own family
of nations -- in a word, a Christian state."

															Quoted in 7 Op.Atty.Gen. 495, 496-497. Later treaties continued
the extraterritorial rights of the United States, and the Treaty of
1903 contained the following article demonstrating the purpose of
those rights:

															"The Government of China having expressed a strong desire to
reform its judicial system and to bring it into accord with that of
Western nations, the Page 354 U. S. 61 United States agrees to give every assistance to such reform,
and will also be prepared to relinquish extraterritorial rights
when satisfied that the state of the Chinese laws, the arrangements
for their administration, and other considerations warrant it in
doing so."

															33 Stat. 2208, 2215.

															The first treaty with Japan was negotiated by Commodore Perry in
1854. 11 Stat. 597. It opened two ports, but did not provide for
any exercise of judicial powers by United States officials. Under
the Treaty of 1857, 11 Stat. 723, such power was given, and later
treaties, which opened up further Japanese cities for trade and
residence by United States citizens, retained these rights. The
treaty of 1894, effective on July 17, 1899, however, ended these
extraterritorial rights, and Japan, even though a "non-Christian"
nation, came to occupy the same status as Christian nations. 29
Stat. 848. The exercise of criminal jurisdiction by consuls over
United States citizens was also provided for, at one time or
another, in treaties with Borneo, 10 Stat. 909, 910; Siam, 11 Stat.
683, 684; Madagascar, 15 Stat. 491, 492; Samoan Islands, 20 Stat.
704; Korea, 23 Stat. 720, 721; Tonga Islands, 25 Stat. 1440, 1442,
and, by virtue of most favored nation clauses, in treaties with
Tripoli, 8 Stat. 154; Persia, 11 Stat. 709; the Congo, 27 Stat.
926, and Ethiopia, 33 Stat. 2254. The exercise of criminal
jurisdiction was also provided for in a treaty with Morocco, 8
Stat. 100, by virtue of a most favored nation clause and by virtue
of a clause granting jurisdiction if "any . . . citizens of the
United States . . . shall have any disputes with each other." The
word "disputes" has been interpreted by the International Court of
Justice to comprehend criminal as well as civil disputes. France v. United States, I.C.J. Reports 1952, pp.176,
188-189. The treaties with Algiers, 8 Stat. 133, 224, 244; Tunis, 8
Stat. Page 354 U. S. 62 157, and Muscat, 8 Stat. 458, contained similar "disputes"
clauses. [ Footnote 2/9 ]

															The judicial power exercised by consuls was defined by statute,
and was sweeping:

															"Jurisdiction in both criminal and civil matters shall, in all
cases, be exercised and enforced in conformity with the laws of the
United States, which are hereby, so far as is necessary to execute
such treaties, respectively, and so far as they are suitable to
carry the same into effect, extended over all citizens of the
United States in those countries, and over all others to the extent
that the terms of the treaties, respectively, justify or require.
But in all cases 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."

															Rev.Stat. § 4086. The consuls, then, exercised not only
executive and judicial power, but legislative power as well.

															The number of people subject to the jurisdiction of these courts
during their most active periods appears to Page 354 U. S. 63 have been fairly small. In the Chronicle & Directory for
China, Japan, & the Philippines, for the year 1870, there is a
listing of the total number of foreign, not just United States,
residents in these three places. The list is 81 pages long, with a
total of some 4,500 persons. (Pp. 54-134.) This same publication
gives the following information about Japan:

															"The number of foreigners settled in Japan is as yet very small.
At the end of the year 1862, the foreign community at Kanagawa, the
principal of the three ports of Japan open to aliens, consisted of
. . . thirty-eight Americans . . . , and in the latter part of
1864, the permanent foreign residents at Kanagawa had increased to
300, not counting soldiers, of which number . . . about 80 [were]
Americans. . . . At Nagasaki, the second port of Japan thrown open
to foreign trade by the government, the number of alien settlers
was as follows on the 1st of January, 1866: -- . . . American
citizens 32. . . . A third port opened to European and American
traders, that of Hakodadi, in the north of Japan, was deserted,
after a lengthened trial, by nearly all the foreign merchants
settled there. . . ."

															(Appendix, p. 353.) The Statesman's Yearbook of 1890 shows:
China at the end of 1888: 1,020 Americans (p. 411); Japan in 1887:
711 Americans (p. 709); Morocco, 1889 estimate: "The number of
Christians is very small, not exceeding 1,500." (P. 739.) The
Statesman's Yearbook of 1901 shows: China at the end of 1899: 2,335
Americans (p. 484); Japan, December 31, 1898, just before the
termination of our extraterritorial rights: 1,165 Americans (p.
809); Morocco: "The number of Christians does not exceed 6,000; the
Christian population of Tangier alone probably amounts to 5,000."
(P. 851.) These figures, of course, do not include those civilians
temporarily in the country coming within consular jurisdiction. Page 354 U. S. 64 The consular court jurisdiction, then, was exercised in
countries whose legal systems at the time were considered so
inferior that justice could not be obtained in them by our
citizens. The existence of these courts was based on
long-established custom, and they were justified as the best
possible means for securing justice for the few Americans present
in those countries. The Ross case, therefore, arose out
of, and rests on, very special, confined circumstances, and cannot
be applied automatically to the present situation, involving
hundreds of thousands of American citizens in countries with
civilized systems of justice. If Congress had established consular
courts or some other non-military procedure for trial that did not
contain all the protections afforded by Article III and the Fifth
and Sixth Amendments for the trial of civilian dependents of
military personnel abroad, we would be forced to a detailed
analysis of the situation of the civilian dependent population
abroad in deciding whether the Ross case should be
extended to cover such a case. It is not necessary to do this in
the present cases in view of our decision that the form of trial
here provided cannot constitutionally be justified.

															The Government, apparently recognizing the constitutional basis
for the decision in Ross, has, on rehearing, sought to
show that civilians in general and civilian dependents in
particular have been subject to military order and discipline ever
since the colonial period. The materials it has submitted seem too
episodic, too meager, to form a solid basis in history, preceding
and contemporaneous with the framing of the Constitution, for
constitutional adjudication. What has been urged on us falls far
too short of proving a well established practice -- to be deemed to
be infused into the Constitution -- of court-martial jurisdiction,
certainly not in capital cases, over such civilians in time of
peace. Page 354 U. S. 65 [ Footnote 2/1 ]

															"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. . .
."

															Article 2 of the Uniform Code of Military Justice 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, all persons serving with, employed by, or
accompanying the armed forces without the continental limits of the
United States. . . ."

															[ Footnote 2/2 ]

															Article III, § 2, cl. 3, provides that

															"The Trial of all Crimes . . . when not committed within any
State . . . shall be at such Place or Places as the Congress may by
Law have directed."

															Since 1790, 1 Stat. 113-114, Congress has provided for such
trial in the district where the offender is found (apprehended) or
first brought. See 18 U.S.C. § 3238.

															[ Footnote 2/3 ]

															Under Article 19 of the Uniform Code of Military Justice, 64
Stat. 114, 50 U.S.C. § 579, a special court-martial may impose any
punishment not forbidden by the Code

															"except death, dishonorable discharge, dismissal, confinement in
excess of six months, hard labor without confinement in excess of
three months, forfeiture of pay exceeding two-thirds pay per month,
or forfeiture of pay for a period exceeding six months."

															Under Art. 20, 64 Stat. 114, 50 U.S.C. § 580, a summary
court-martial may impose any punishment not forbidden by the
Code

															"except death, dismissal, dishonorable or bad conduct discharge,
confinement in excess of one month, hard labor without confinement
in excess of forty-five days, restriction to certain specified
limits in excess of two months, or forfeiture of pay in excess of
two-thirds of one month's pay."

															In order to impose a punishment in excess of these limits, a
general court-martial must be convened under Art. 18, 64 Stat. 114,
50 U.S.C. § 578.

															[ Footnote 2/4 ]

															A Report of the Joint Committee on Reduction of Nonessential
Federal Expenditures on Federal Personnel and Pay indicates that
the executive agencies of the Federal Government, excluding the
Department of Defense, alone employed 51,027 persons outside the
continental United States in February, 1957, excluding employees of
the Panama Canal. S.Com.Print No. 157, 85th Cong., 1st Sess.
Although these figures include "some foreign nationals," they
nevertheless indicate a substantial number of United States
citizens subject to foreign law. See 103 Cong.Rec.
5313-5316.

															[ Footnote 2/5 ]

															Having based the constitutionality of Article 2(11) on these
grounds, the Court concluded,

															"we have no need to examine the power of Congress 'To make Rules
for the Government and Regulation of the land and naval Forces'
under Article I of the Constitution." 351 U.S.
470 , 351 U. S.
476 .

															[ Footnote 2/6 ]

															In Hawaii v. Mankichi, 190 U.
S. 197 , the Court rested its decision on an
interpretation of the joint resolution of Congress annexing the
Hawaiian Islands. The Court held that the act of annexation did
not, of its own force, require indictment by grand jury and a trial
by a Sixth Amendment jury. Implicit in this holding was the
assumption that such indictment and trial were not constitutionally
required in Hawaii. This assumption was based on a recognition that
the act should not be construed as

															"imposing upon the islands every provision of a Constitution,
which must have been unfamiliar to a large number of their
inhabitants, and for which no previous preparation had been made. .
. ." Id. at 190 U. S.
215 -216.

															[ Footnote 2/7 ]

															For a statement of the applicable law before the question arose
with respect to lands outside the continental limits of the United
States, see Thompson v. Utah, 170 U.
S. 343 , 170 U. S.
347 :

															"It is equally beyond question that the provisions of the
National Constitution relating to trials by jury for crimes and to
criminal prosecutions apply to the Territories of the United
States." But see Mormon Church v. United States, 136 U. S.
1 , 136 U. S. 44 :

															"Doubtless Congress, in legislating for the Territories, would
be subject to those fundamental limitations in favor of personal
rights which are formulated in the Constitution and its amendments;
but these limitations would exist rather by inference and the
general spirit of the Constitution from which Congress derives all
its powers than by any express and direct application of its
provisions."

															[ Footnote 2/8 ]

															This feeling about the "non-Christian" nations of the world was
widely shared. In his "Jubilee of the Constitution," delivered on
the 50th anniversary of the inauguration of George Washington, John
Quincy Adams said:

															"The Declaration of Independence recognised the European law of
nations, as practised among Christian nations, to be that by which
they considered themselves bound, and of which they claimed the
rights. This system is founded upon the principle that the state of
nature between men and between nations is a state of peace. But
there was a Mahometan law of nations which considered the state of
nature as a state of war -- an Asiatic law of nations which
excluded all foreigners from admission within the territories of
the state. . . . With all these different communities, the
relations of the United States were, from the time when they had
become an independent nation, variously modified according to the
operation of those various laws. It was the purpose of the
Constitution of the United States to establish justice over them all."

															Adams, Jubilee of the Constitution, 73. See also the
views of Secretary of State Hamilton Fish quoted in 351 U.S. at 351 U. S.
484 -485.

															[ Footnote 2/9 ]

															On August 1, 1956, the President approved Public Law 856, 84th
Cong., 2d Sess., providing for the relinquishment by the President,
at such time as he deemed appropriate, of the consular jurisdiction
of the United States in Morocco, the only foreign country where
United States consuls continued to exercise such jurisdiction. 70
Stat. 773. The jurisdiction was relinquished on October 6, 1956.
N.Y. Times, Oct. 8, 1956, p. 1, col. 6.

															MR. JUSTICE HARLAN, concurring in the result.

															I concur in the result, on the narrow ground that, where the
offense is capital, Article 2(11) [ Footnote 3/1 ] cannot constitutionally be applied to the
trial of civilian dependents of members of the armed forces
overseas in times of peace.

															Since I am the only one among today's majority who joined in the
Court's opinions of June 11, 1956, which sustained the
court-martial jurisdiction in these cases, 351 U.
S. 470 , 351 U. S. 487 , I
think it appropriate to state the reasons which led to my voting,
first, to rehear these cases, 352 U.S. 901, and, now, to strike
down that jurisdiction. I The petitions for rehearing which were filed last summer
afforded an opportunity for a greater degree of reflection upon the
difficult issues involved in these cases than, at least for me, was
possible in the short interval between the argument and decision of
the cases in the closing days of last Term. [ Footnote 3/2 ] As a result I became satisfied that this
court-martial jurisdiction could, in any event, not be sustained
upon the reasoning of our prior opinion. In essence, that reasoning
was this: (1) under In re Ross, 140 U.
S. 453 , and the Insular Cases, [ Footnote 3/3 ] the requirement of a trial by an
Article III court and the other specific safeguards of Article III
and the Fifth and Sixth Amendments are not applicable to the trial
of American citizens outside the United States; (2) there is thus
no express constitutional prohibition against the use of
courts-martial Page 354 U. S. 66 for such trials abroad; (3) the choice of a court-martial in
cases such as these was "reasonable" because of these women's
connection with the military, and therefore satisfied due process;
(4) the court-martial jurisdiction was thus constitutional. I have
since concluded that this analysis was not sound, for two
reasons:

															(1) The underlying premise of the prior opinion, it seems to me,
is that, under the Constitution, the mere absence of a prohibition
against an asserted power, plus the abstract reasonableness of its
use, is enough to establish the existence of the power. I think
this is erroneous. The powers of Congress, unlike those of the
English Parliament, are constitutionally circumscribed. Under the
Constitution, Congress has only such powers as are expressly
granted or those that are implied as reasonably necessary and
proper to carry out the granted powers. Hence, the
constitutionality of the statute here in question must be tested
not by abstract notions of what is reasonable "in the large," so to
speak, but by whether the statute, as applied in these instances,
is a reasonably necessary and proper means of implementing a power
granted to Congress by the Constitution. To say that the validity
of the statute may be rested upon the inherent "sovereign powers"
of this country in its dealings with foreign nations seems to me to
be no more than begging the question. As I now see it, the validity
of this court-martial jurisdiction must depend upon whether the
statute, as applied to these women, can be justified as an exercise
of the power, granted to Congress by Art. I, § 8, cl. 14 of the
Constitution, "To make Rules for the Government and Regulation of
the land and naval Forces." I can find no other constitutional
power to which this statute can properly be related. I therefore
think that we were wrong last Term in considering that we need not
decide Page 354 U. S. 67 the case in terms of the Article I power. In my opinion, that
question squarely confronts us.

															(2) I also think that we were mistaken in interpreting Ross and the Insular Cases as standing for the
sweeping proposition that the safeguards of Article III and the
Fifth and Sixth Amendments automatically have no application to the
trial of American citizens outside the United States, no matter
what the circumstances. Aside from the questionable wisdom of
mortgaging the future by such a broad pronouncement, I am satisfied
that our prior holding swept too lightly over the historical
context in which this Court upheld the jurisdiction of the old
consular and territorial courts in those cases. I shall not repeat
what my brother FRANKFURTER has written on this subject, with which
I agree. But I do not go as far as my brother BLACK seems to go on
this score. His opinion, if I understand it correctly, in effect
discards Ross and the Insular Cases as historical
anomalies. I believe that those cases, properly understood, still
have vitality, and that, for reasons suggested later, which differ
from those given in our prior opinions, they have an important
bearing on the question now before us. II I come then to the question whether this court-martial
jurisdiction can be justified as an exercise of Congress' Article I
power to regulate the armed forces.

															At the outset, I cannot accept the implication of my brother
BLACK's opinion that this Article I power was intended to be
unmodified by the Necessary and Proper Clause of the Constitution,
[ Footnote 3/4 ] and that, therefore,
this power Page 354 U. S. 68 is incapable of expansion under changing circumstances. The
historical evidence, in fact, shows quite the opposite. True, the
records of the time indicate that the Founders shared a deep fear
of an unchecked military branch. But what they feared was a
military branch unchecked by the legislature, and
susceptible of use by an arbitrary executive power.
[ Footnote 3/5 ] So far as I know,
there is no evidence at all that the Founders intended to limit the
power of the people, as embodied in the legislature, to
make such laws in the regulation of the land and naval forces as
are necessary to the proper functioning of those forces. In other
words, there is no indication that any special limitation on the
power of Congress, as opposed to the power of the executive, was
subsumed in the grant of power to govern the land and naval forces.
Alexander Hamilton, indeed, stated exactly the opposite: [ Footnote 3/6 ]

															"The authorities essential to the common defense are these: to
raise armies; to build and equip fleets; to prescribe rules for the
government of both; to direct their operations; to provide for
their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and
variety of national exigencies, or the correspondent extent and
variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite,
and, for this reason, no constitutional shackles can wisely be Page 354 U. S. 69 imposed on the power to which the care of it is committed. This
power ought to be coextensive with all the possible combinations of
such circumstances, and ought to be under the direction of the same
councils which are appointed to preside over the common
defense."

															" * * * *" ". . . Shall the Union be constituted the guardian of the common
safety? Are fleets and armies and revenues necessary to this
purpose? The government of the Union must be empowered to pass all
laws, and to make all regulations which have relation to them. . .
."

															" * * * *" "Every view we may take of the subject, as candid inquirers
after truth, will serve to convince us that it is both unwise and
dangerous to deny the federal government an unconfined authority as
to all those objects which are intrusted to its management. . . . A
government the constitution of which renders it unfit to be trusted
with all the powers which a free people ought to delegate to
any government would be an unsafe and improper depositary of
the national interests. Wherever these can with
propriety be confided, the coincident powers may safely accompany
them."

															No less an authority than Chief Justice Marshall, in McCulloch v.
Maryland , 4 Wheat. 316, has taught us that the
Necessary and Proper Clause is to be read with all the powers of
Congress, so that,

															"where the law is not prohibited, and is really calculated to
effect any of the objects entrusted to the government, to undertake
here to inquire into the degree of its necessity would be to pass
the line which circumscribes the judicial department, and to tread
on legislative ground." Id. at 17 U. S.
423 . Page 354 U. S. 70 I think it no answer to say, as my brother BLACK does, that,

															"having run up against the steadfast bulwark of the Bill of
Rights, the Necessary and Proper Clause cannot extend the scope of
[Art. I] Clause 14."

															For that simply begs the question as to whether there is such a
collision, an issue to which I address myself below.

															For analytical purposes, I think it useful to break down the
issue before us into two questions: first, is there a rational
connection between the trial of these army wives by court-martial
and the power of Congress to make rules for the governance of the
land and naval forces; in other words, is there any initial power
here at all? Second, if there is such a rational connection, to
what extent does this statute, though reasonably calculated to
subserve an enumerated power, collide with other express
limitations on congressional power; in other words, can this
statute, however appropriate to the Article I power looked at in
isolation, survive against the requirements of Article III and the
Fifth and Sixth Amendments? I recognize that these two questions
are ultimately one and the same, since the scope of the Article I
power is not separable from the limitations imposed by Article III
and the Fifth and Sixth Amendments. Nevertheless I think it will
make for clarity of analysis to consider them separately. A I assume for the moment, therefore, that we may disregard other
limiting provisions of the Constitution and examine the Article I
power in isolation. So viewed, I do not think the courts-martial of
these army wives can be said to be an arbitrary extension of
congressional power.

															It is suggested that, historically, the Article I power was
intended to embody a rigid and unchangeable self-limitation,
namely, that it could apply only to those Page 354 U. S. 71 in the actual service of the armed forces. [ Footnote 3/7 ] I cannot agree that this power has
any such rigid content. First of all, the historical evidence
presented by the Government convinces me that, at the time of the
adoption of the Constitution, military jurisdiction was not thought
to be rigidly limited to uniformed personnel. The fact is that it
was traditional for "retainers to the camp" to be subjected to
military discipline, that civilian dependents encamped with the
armies were traditionally regarded as being in that class, and that
the concept was not strictly limited to times of war. [ Footnote 3/8 ] Indeed, the British, who are
no less sensitive than we to maintaining the supremacy of civil
justice, have recently enacted a law comparable to the statute
involved here. [ Footnote 3/9 ]

															Thinking, as I do, that Article I, still taking it in isolation,
must be viewed as supplemented by the Necessary and Proper Clause,
I cannot say that the court-martial jurisdiction here involved has
no rational connection with the stated power. The Government, it
seems to me, has Page 354 U. S. 72 made a strong showing that the court-martial of civilian
dependents abroad has a close connection to the proper and
effective functioning of our overseas military contingents. There
is no need to detail here the various aspects of this connection,
which have been well dealt with in the dissenting opinion of my
brother CLARK. Suffice it to say that, to all intents and purposes,
these civilian dependents are part of the military community
overseas, [ Footnote 3/10 ] are so
regarded by the host country, and must be subjected to the same
discipline if the military commander is to have the power to
prevent activities which would jeopardize the security and
effectiveness of his command. [ Footnote 3/11 ] The matter has been well summarized by
General Palmer, Commander of the Eighth Army, stationed in
Japan:

															"Jurisdiction by courts-martial over all civilians accompanying
the Army overseas is essential because of the manner in which U.S.
Armed Forces personnel Page 354 U. S. 73 live in their overseas military communities. In this command,
almost all personnel serving in or accompanying the U.S. Armed
Forces live in or near separate, closely knit U.S. military
communities which are basically under the control, administration
and supervision of the local U.S. Commander, who is, in turn,
responsive to the normal military chain of command. This
responsibility which is vested in the military commander extends to
the administration and supervision of the operation and use of all
facilities and major activities of the community, including the
proper control of occupants and users which is inherent in such
supervision overseas. In the absence of a supporting judicial
system responsive to the same government as the military, such as
is the case existing in the United States and overseas possessions,
and as the law enforcement requirement stems primarily from the
immediate unalterable responsibilities of the overseas commander
and his subordinate commanders, it is essential that the commander
be vested with the law enforcement authority commensurate with his
responsibilities."

															It seems to me clear on such a basis that these dependents, when
sent overseas by the Government, become pro tanto a part
of the military community. I cannot say, therefore, that it is
irrational or arbitrary for Congress to subject them to military
discipline. I do not deal now, of course, with the problem of
alternatives to court-martial jurisdiction; all that needs to be
established at this stage is that, viewing Art. I, § 8, cl. 14 in
isolation, subjection of civilian dependents overseas to
court-martial jurisdiction can in no wise be deemed unrelated to
the power of Congress to make all necessary and proper laws to
insure the effective governance of our overseas land and naval
forces. Page 354 U. S. 74 B I turn now to the other side of the coin. For no matter how
practical and how reasonable this jurisdiction might be, it still
cannot be sustained if the Constitution guarantees to these army
wives a trial in an Article III court, with indictment by grand
jury and jury trial as provided by the Fifth and Sixth
Amendments.

															We return, therefore, to the Ross question: to what
extent do these provisions of the Constitution apply outside the
United States?

															As I have already stated, I do not think that it can be said
that these safeguards of the Constitution are never operative
without the United States, regardless of the particular
circumstances. On the other hand, I cannot agree with the
suggestion that every provision of the Constitution must always be
deemed automatically applicable to American citizens in every part
of the world. For Ross and the Insular Cases do
stand for an important proposition, one which seems to me a wise
and necessary gloss on our Constitution. The proposition is, of
course, not that the Constitution "does not apply" overseas, but
that there are provisions in the Constitution which do not
necessarily apply in all circumstances in every foreign place. In
other words, it seems to me that the basic teaching of Ross and the Insular Cases is that there is no
rigid and abstract rule that Congress, as a condition precedent to
exercising power over Americans overseas, must exercise it subject
to all the guarantees of the Constitution, no matter what the
conditions and considerations are that would make adherence to a
specific guarantee altogether impracticable and anomalous. To take
but one example: Balzac v. Porto Rico, 258 U.
S. 298 , is not good authority for the proposition that
jury trials need never be provided for American citizens tried
by Page 354 U. S. 75 the United States abroad; but the case is good authority for the
proposition that there is no rigid rule that jury trial must always be provided in the trial of an American overseas if
the circumstances are such that trial by jury would be impractical
and anomalous. In other words, what Ross and the Insular Cases hold is that the particular local setting,
the practical necessities, and the possible alternatives are
relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of
Congress' power to provide for the trial of Americans overseas.

															I think the above thought is crucial in approaching the cases
before us. Decision is easy if one adopts the constricting view
that these constitutional guarantees as a totality do or do not
"apply" overseas. But, for me, the question is which guarantees of the Constitution should apply in view of the
particular circumstances, the practical necessities, and the
possible alternatives which Congress had before it. The question is
one of judgment, not of compulsion. And so I agree with my brother
FRANKFURTER that, in view of Ross and the Insular
Cases, we have before us a question analogous, ultimately, to
issues of due process; one can say, in fact, that the question of
which specific safeguards of the Constitution are appropriately to
be applied in a particular context overseas can be reduced to the
issue of what process is "due" a defendant in the particular
circumstances of a particular case.

															On this basis, I cannot agree with the sweeping proposition that
a full Article III trial, with indictment and trial by jury, is
required in every case for the trial of a civilian dependent of a
serviceman overseas. The Government, it seems to me, has made an
impressive showing that, at least for the run-of-the-mill offenses
committed by dependents overseas, such a requirement would Page 354 U. S. 76 be as impractical and as anomalous as it would have been to
require jury trial for Balzac in Porto Rico. [ Footnote 3/12 ] Again, I need not go into details,
beyond stating that, except for capital offenses, such as we have
here, to which, in my opinion, special considerations apply, I am
by no means ready to say that Congress' power to provide for trial
by court-martial of civilian dependents overseas is limited by
Article III and the Fifth and Sixth Amendments. Page 354 U. S. 77 Where, if at all, the dividing line should be drawn among cases
not capital need not now be decided. We are confronted here with
capital offenses alone, and it seems to me particularly unwise now
to decide more than we have to. Our far-flung foreign military
establishments are a new phenomenon in our national life, and I
think it would be unfortunate were we unnecessarily to foreclose,
as my four brothers would do, our future consideration of the broad
questions involved in maintaining the effectiveness of these
national outposts, in the light of continuing experience with these
problems.

															So far as capital cases are concerned, I think they stand on
quite a different footing than other offenses. In such cases, the
law is especially sensitive to demands for that procedural fairness
which inheres in a civilian trial where the judge and trier of fact
are not responsive to the command of the convening authority. I do
not concede that whatever process is "due" an offender faced with a
fine or a prison sentence necessarily satisfies the requirements of
the Constitution in a capital case. The distinction is by no means
novel, compare Powell v. Alabama, 287 U. S.
45 , with Betts v. Brady, 316 U.
S. 455 ; nor is it negligible, being literally that
between life and death. And, under what I deem to be the correct
view of Ross and the Insular Cases, it is
precisely the kind of distinction which plays a large role in the
process of weighing the competing considerations which lead to
sound judgment upon the question whether certain safeguards of the
Constitution should be given effect in the trial of an American
citizen abroad. In fact, the Government itself has conceded that
one grave offense, treason, presents a special case:

															"The gravity of this offense is such that we can well assume
that, whatever difficulties may be involved in trial far from the
scene of the offense . . . , the trial should be in our
courts."

															I see no reason for not applying the same principle to any case
where a civilian Page 354 U. S. 78 dependent stands trial on pain of life itself. The number of
such cases would appear to be so negligible that the practical
problems of affording the defendant a civilian trial would not
present insuperable problems.

															On this narrow ground, I concur in the result in these
cases.

															[ Footnote 3/1 ]

															50 U.S.C. § 552(11).

															[ Footnote 3/2 ]

															The cases were argued on May 3, 1956, and decided on June 11,
1956.

															[ Footnote 3/3 ] Downes v. Bidwell, 182 U. S. 244 ; Hawaii v. Mankichi, 190 U. S. 197 ; Dorr v. United States, 195 U. S. 138 ; Balzac v. Porto Rico, 258 U. S. 298 .

															[ Footnote 3/4 ]

															Article I, § 8, cl. 18 of the Constitution provides that
Congress shall have the power

															"to make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the government of the United States,
or in any Department or Officer thereof."

															[ Footnote 3/5 ]

															Thus, proposals to limit the size of the standing army in times
of peace to a specific number of men in the Constitution were
defeated at the Constitutional Convention. See 5 Elliot's
Debates 442-443 ("no room for . . . distrust of the representatives
of the people"). See also The Federalist, No. 24:

															"[T]he whole power of raising armies was lodged in the Legislature, not in the Executive; . . . this
legislature was to be a popular body, consisting of the
representatives of the people periodically elected. . . ."

															[ Footnote 3/6 ]

															The Federalist, No. 23.

															[ Footnote 3/7 ]

															To be sure, the opinion does

															"recognize that there might be circumstances where a person
could be 'in' the armed services for purposes of [Art. I, § 8]
Clause 14 even though he had not formally been inducted into the
military, or did not wear a uniform."

															It continues, however, to state categorically that "wives,
children and other dependents of servicemen cannot be placed in
that category. . . ."

															[ Footnote 3/8 ]

															The essential element was thought to be not so much that there
be war, in the technical sense, but rather that the forces and
their retainers be "in the field." The latter concept, in turn,
would seem to have extended to any area where the nature of the
military position and the absence of civil authority made military
control over the whole camp appropriate. See, in general, Blumenthal, Women Camp Followers of the American Revolution. The
British history is the same. See, in particular, Samuel,
Historical Account of the British Army and of the Law Military, pp.
691-692.

															[ Footnote 3/9 ]

															Army Act, 1955, 3 & 4 Eliz. II, c. 18, § 209, and
see Fifth Schedule, id. at 219.

															[ Footnote 3/10 ]

															These dependents are taken abroad only because their presence is
deemed necessary to the morale and proper functioning of our armies
overseas. They are transported at government expense, carry
passports identifying them as service dependents, are admitted to
the host country without visas, use military payment certificates,
and receive the benefit of army postal facilities and privileges.
They enjoy the tax exemptions and customs benefits of the military.
They are treated at service hospitals, their children go to schools
maintained by the Government, and they share with the military the
recreational facilities provided by the Government. They are housed
and furnished heat, light, fuel, water, and telephone service by
the military, as well as receiving transportation, food, and
clothing from military sources.

															[ Footnote 3/11 ]

															This necessity is particularly acute with regard to peculiarly
"military" and "local" offenses which must be dealt with swiftly
and effectively. Thus, security regulations at these military
installations must be enforced against civilian dependents as well
as servicemen; the same is true of base traffic violations, black
marketeering, and misuse of military customs and post-exchange
privileges.

															[ Footnote 3/12 ]

															The practical circumstances requiring some sort of disciplinary
jurisdiction have already been adverted to, supra, pp. 354 U. S. 71 -73.
These circumstances take on weight when viewed in light of the
alternatives available to Congress -- certainly a crucial question
in weighing the need for dispensing with particular constitutional
guarantees abroad. What are these alternatives? (1) One is to try
all offenses committed by civilian dependents abroad in the United
States. But the practical problems in the way of such a choice are
obvious and overwhelming. To require the transportation home for
trial of every petty black marketeer or violator of security
regulations would be a ridiculous burden on the Government, quite
aside from the problems of persuading foreign witnesses to make the
trip and of preserving evidence. It can further be deemed doubtful
in the extreme whether foreign governments would permit crimes
punishable under local law to be tried thousands of miles away in
the United States. (2) Civilian trial overseas by the United States
also presents considerable difficulties. If juries are required,
the problem of jury recruitment would be difficult. Furthermore, it
is indeed doubtful whether some foreign governments would accede to
the creation of extraterritorial United States civil courts within
their territories -- courts which, by implication, would reflect on
the fairness of their own tribunals, and which would smack
unpleasantly of consular courts set up under colonial
"capitulations." (3) The alternative of trial in foreign courts, in
at least some instances, is no more palatable. Quite aside from the
fact that, in some countries where we station troops, the
protections granted to criminal defendants compare unfavorably with
our own minimum standards, the fact would remain that many of the
crimes involved -- particularly breaches of security -- are not
offenses under foreign law at all, and thus would go completely
unpunished. Add to this the undesirability of foreign police
carrying out investigations in our military installations abroad,
and it seems to me clear that this alternative does not commend
itself.

															MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON joins,
dissenting.

															The Court today releases two women from prosecution though the
evidence shows that they brutally killed their husbands, both
American soldiers, while stationed with them in quarters furnished
by our armed forces on its military installations in foreign lands.
In turning these women free, it declares unconstitutional an
important section of an Act of Congress governing our armed forces.
Furthermore, four of my brothers would specifically overrule and
two would impair the long-recognized vitality of an old and
respected precedent in our law, the case of In re Ross, 140 U. S. 453 (1891), cited by this Court with approval in many opinions and as
late as 1929 by a unanimous Court [ Footnote 4/1 ] in Ex parte Bakelite Corp., 279 U. S. 438 , 279 U. S. 451 .
And finally, the Court reverses, sets aside, and overrules two
majority opinions and judgments of this Court in these same cases,
reported in 351 U.S. at 351 U. S. 470 and 351 U. S. 487 , and
entered on June 11, 1956, less than 12 months ago. In substitute
therefor, it enters no opinion whatever for the Court. It is unable
to muster a majority. Instead, there are handed down three
opinions. But, worst of all, it gives no authoritative guidance as
to what, if anything, the Executive or the Congress may do to
remedy the distressing situation in which they now find
themselves. Page 354 U. S. 79 MR. JUSTICE BURTON and I remain convinced that the former
opinions of the Court are correct, and that they set forth valid
constitutional doctrine under the long-recognized cases of this
Court. The opinions were neither written nor agreed to in haste,
and they reflect the consensus of the majority, reached after
thorough discussion at many conferences. In fact, the cases were
here longer, both before and after argument, than many of the cases
we decide. We adhere to the views there expressed, since we are
convinced that, through them, we were neither "mortgaging the
future," as is claimed, nor foreclosing the present, as does the
judgment today. We do not include a discussion of the theory upon
which those former judgments were entered, because we are satisfied
with its handling in the earlier opinions. See 351 U.S. at 351 U. S. 470 and 351 U. S. 487 . I Before discussing the power of the Congress under Art. I, § 8,
cl. 14, of the Constitution, it is well to take our bearings. These
cases do not involve the jurisdiction of a military court-martial
sitting within the territorial limits of the United States. Nor are
they concerned with the power of the Government to make treaties,
or the legal relationship between treaties and the Constitution.
Nor are they concerned with the power of Congress to provide for
the trial of Americans sojourning, touring, or temporarily residing
in foreign nations. Essentially, we are to determine only whether
the civilian dependents of American servicemen may constitutionally
be tried by an American military court-martial in a foreign country
for an offense committed in that country. Congress has provided in
Article 2(11) of the Uniform Code of Military Justice, 64 Stat.
109, 50 U.S.C. § 552(11), that they shall be so tried in those
countries with which we have an implementing treaty. The question
therefore is whether Page 354 U. S. 80 this enactment is reasonably related to the power of Congress
"To make Rules for the Government and Regulation of the land and
naval Forces." U.S.Const., Art. I, § 8,cl. 14.

															Historically, the military has always exercised jurisdiction by
court-martial over civilians accompanying armies in time of war.
Over 40 years ago, this jurisdiction was declared by Congress to
include "all persons accompanying or serving with the armies of the
United States without the territorial jurisdiction of the United
States." [ Footnote 4/2 ] Art. of War
2(d), 39 Stat. 651. Article 2(11) of the present Uniform Code of
Military Justice was taken without material change from this
provision of the Articles of War. At the time of enactment of the
earlier provision, Congress was plainly concerned with the
maintenance of discipline and morale of American expeditionary
forces composed of both military and civilian personnel. As pointed
out in the Senate Report to the Sixty-fourth Congress at the time
Article 2(d) was adopted:

															"The existing articles are further defective in that they do not
permit the disciplining of these three classes of camp followers in
time of peace in places to which the civil jurisdiction of the
United States does not extend and where it is contrary to
international policy to subject such persons to the local
jurisdiction, or where, for other reasons, the law of the local
jurisdiction is not applicable, thus leaving these classes
practically without liability to punishment for their unlawful acts
under such circumstances -- as, for example, . . . where such
forces so Page 354 U. S. 81 accompanied are engaged in the nonhostile occupation of foreign
territory, as was the case during the intervention of 1906-7 in
Cuba."

															S.Rep. No. 130, 64th Cong., 1st Sess. 37-38.

															Since that time, the power of Congress to make civilians
amenable to military jurisdiction under such circumstances has been
considered and sustained by this Court and other federal courts in
a number of cases. In Madsen v. Kinsella, 343 U.
S. 341 (1952), we sustained the jurisdiction of a
military commission to try a civilian wife for the murder of her
husband in Germany in 1949. Unlike Mrs. Smith, the petitioner in Madsen contended that a military court-martial had
exclusive jurisdiction to try her pursuant to Article of War 2(d),
the predecessor of Article 2(11). In upholding the
constitutionality of trial by a military commission, we pointed out
that its jurisdiction was concurrent with that of the military
court-martial, 343 U.S. at 343 U. S. 345 , and that the jurisdiction of both stemmed
directly from Article 2(d), 343 U.S. at 343 U. S.
361 .

															It is contended that no holding on the validity of court-martial
jurisdiction over civilians was necessary to our decision in Madsen, and that the case itself is distinguishable
because occupied territory was involved, and hence the action of
Congress could be supported under the War Power. It is true that
our reference to concurrent court-martial jurisdiction -- when both
petitioner and the Government agreed to it -- was a concomitant to
that decision, but our recognition of the power of Congress to
authorize military trial of civilians under the circumstances
provided for in Article 2(d) was essential to the judgment. 343
U.S. at 343 U. S. 361 . Madsen was factually very similar to the present case,
and, in terms of the relevant considerations involved, it is
practically indistinguishable. In Madsen, as here, the
crime involved was murder of a serviceman by a dependent wife
living as a civilian with Page 354 U. S. 82 our armed forces in a foreign country. In both cases,
jurisdiction was exercised by a military tribunal pursuant to an
Act of Congress authorizing such jurisdiction over all persons
accompanying the armed forces outside the territorial jurisdiction
of the United States. The distinction that, in one case, the trial
was by court-martial, and in the other, by a military commission,
is insubstantial. The contention that jurisdiction could be
sustained in Madsen under the War Power of Congress, but
that this power is unavailable to authorize jurisdiction in Smith, is likewise without merit. [ Footnote 4/3 ] Aside from the fact that this Court has
never restricted so narrowly the action that Congress might take
under the War Power, see Ashwander v. TVA, 297 U.
S. 288 (1936), and Silesian-American Corp. v.
Clark, 332 U. S. 469 (1947), there is as much, if not more, justification for employment
of the War Power in Japan in 1952 as in Germany in 1949. At the
time Mrs. Smith's crime was committed, Japan was the logistics and
aviation base for actual hostilities then being waged in Korea,
just across the Sea of Japan. And in 1949, Germany, after four
years of peaceful and uneventful occupation, could hardly be
considered an area where Congress could act only under its War
Power. But the salient feature common to both countries was that
the problems of maintaining control, morale, and discipline of our
military contingents located there were substantially identical.
These problems were not appreciably affected by the fact that one
instance occurred during an occupation, and the other shortly after
a peace treaty had been signed.

															Earlier, in Duncan v. Kahanamoku, 327 U.
S. 304 , 327 U. S. 313 (1946), this Court had recognized the "well established Page 354 U. S. 83 power of the military" to exercise jurisdiction over persons
directly connected with the armed forces, and this power has been
repeatedly recognized in cases decided in the lower federal courts. See United States ex rel. Mobiley v. Handy, 176 F.2d 491
(1949); Perlstein v. United States, 151 F.2d 167 (1945); Grewe v. France, 75 F. Supp.
433 (1948); In re Berue, 54 F.
Supp. 252 (1944); Hines v. Mikell, 259 F. 28 (1919); Ex parte Jochen, 257 F. 200 (1919); Ex parte
Falls, 251 F. 415 (1918); Ex parte Gerlach, 247 F.
616 (1917). See also United States v. Burney, 6 U.S.C.M.A.
776, 21 C.M.R. 98 (1956).

															In considering whether Article 2(11) is reasonably necessary to
the power of Congress to provide for the government of the land and
naval forces, we note as relevant certain other considerations. As
a nation, we have found it necessary to the preservation of our
security in the present day to maintain American forces in 63
foreign countries throughout the world. In recent years, the
services have recognized that the presence of wives and families at
many of these foreign bases is essential to the maintenance of the
morale of our forces. This policy has received legislative approval
and the tremendous expense to the Government involved in the
transportation and accommodation of dependents overseas is
considered money well spent. It is not for us to question this
joint executive and legislative determination. The result, however,
has been the creation of American communities of mixed civilian and
military population on military bases throughout the world. These
civilians are dependent on the military for food, housing, medical
facilities, transportation, and protection. Often, they live in
daily association in closely knit groups nearly isolated from their
surroundings. It cannot be denied that disciplinary problems have
been multiplied and complicated by this influx of civilians onto
military bases, and Congress has provided that military personnel
and civilians Page 354 U. S. 84 alike shall be governed by the same law administered by the same
courts.

															Concerning the effect of civilian activities under such
circumstances on the discipline and morale of the armed services,
we have found no better statement than that of Judge Latimer of the
United States Court of Military Appeals, where the
constitutionality of Article 2(11) was upheld in the recent case of United States v. Burney, 6 U.S.C.M.A. 776, 21 C.M.R. 98
(1956). Referring to the combat readiness of an overseas command,
Judge Latimer stated:

															"[I]t is readily ascertainable that black market transactions,
trafficking in habit-forming drugs, unlawful currency circulation,
promotion of illicit sex relations, and a myriad of other crimes
which may be perpetrated by persons closely connected with one of
the services could have a direct and forceful impact on the
efficiency and discipline of the command. One need only view the
volume of business transacted by military courts involving, for
instance, the sale and use of narcotics in the Far East to be
shocked into a realization of the truth of the previous statement.
If the Services have no power within their own system to punish
that type of offender, then indeed overseas crime between civilians
and military personnel will flourish, and that amongst civilians
will thrive unabated and untouched. A few civilians plying an
unlawful trade in military communities can, without fail, impair
the discipline and combat readiness of a unit. At best, the
detection and prosecution of crime is a difficult and
time-consuming business, and we have grave doubts that, in faraway
lands, the foreign governments will help the cause of a military
commander by investigating the seller or user of habit-forming
drugs, or assist him in deterring Page 354 U. S. 85 American civilians from stealing from their compatriots, or
their Government, or from misusing its property."

															6 U.S.C.M.A. at 800, 21 C.M.R. at 122.

															In addition, it is reasonable to provide that the military
commander who bears full responsibility for the care and safety of
those civilians attached to his command should also have authority
to regulate their conduct. Moreover, all members of an overseas
contingent should receive equal treatment before the law. In their
actual day-to-day living, they are a part of the same unique
communities, and the same legal considerations should apply to all.
There is no reason for according to one class a different treatment
than is accorded to another. The effect of such a double standard
on discipline, efficiency, and morale can easily be seen.

															In United States ex rel. Toth v. Quarles, 350 U. S.
11 (1955), the Court recognized this necessity. There,
Art. I, § 8, cl. 14, was "given its natural meaning," and "would
seem to restrict court-martial jurisdiction to persons who are
actually members or part of the armed forces." (Emphasis
added.) Id. at 15. The Court went on to say:

															"It is impossible to think that the discipline of the Army is
going to be disrupted, its morale impaired, or its orderly
processes disturbed, by giving ex servicemen the benefit of a
civilian court trial when they are actually civilians. . . .
Court-martial jurisdiction sprang from the belief that within the
military ranks there is need for a prompt, ready-at-hand means of
compelling obedience and order. But Army discipline will not be
improved by court-martialing, rather than trying by jury, some
civilian ex-soldier who has been wholly separated from the service
for months, years or perhaps decades. Consequently considerations
of discipline provide no excuse for new Page 354 U. S. 86 expansion of court-martial jurisdiction at the expense of the
normal and constitutionally preferable system of trial by
jury." Id. at 22-23. These women were as much "a part" of the
military installation as were their husbands. Upon attack by an
enemy, they would be so treated; all foreign governments so
recognized them at all times; and, in addition, it has been clearly
shown, unlike in Toth, that "the discipline of the Army is
going to be disrupted, its morale impaired, or its orderly
processes disturbed" by excluding them from the provisions of the
Uniform Code. Every single one of our major military commanders
over the world has filed a statement to this effect in this case.
We should not substitute our views as to this necessity for the
views of those charged with the responsibility of the protection of
such far-flung outposts of the free world. The former minority,
however, repudiates this underlying basis of the opinion in Toth, namely, that, where disciplinary measures are
necessary to the regulation of the armed forces, the Congress does
have constitutional power to make rules. In my opinion, the rules
it has made are necessary to the regulation of the land and naval
forces, and the means chosen, the Uniform Code, is in no way an
unreasonable one.

															There remains the further consideration of whether this
provision is " the least possible power adequate to the end
proposed.'" United States ex rel. Toth v. Quarles, supra, at 350 U. S. 23 .
This is the strict standard by which we determine the scope of
constitutional power of Congress to authorize trial by
court-martial. A study of the problem clearly indicates that the
use of the Uniform Code of Military Justice was really the only
practicable alternative available. While it was conceded before this Court that Congress could have
established a system of territorial or consular Page 354 U. S. 87 courts to try offenses committed by civilian dependents abroad,
the action of four of my brothers who would overrule and two who
would impair the vitality of In re Ross, supra, places
this alternative in jeopardy. Territorial courts have been used by
our Government for over a century, and have always received the
sanction of this Court until today. However, in the light of all of
the opinions of the former minority here, the use of a system of
territorial or consular courts is now out of the question.
Moreover, Congress probably had concluded to abandon this system
before the Uniform Code was adopted, since, a short time
thereafter, the jurisdiction of the last of our territorial or
consular courts was terminated. 70 Stat. 773.

															Another alternative the Congress might have adopted was the
establishment of federal courts pursuant to Article III of the
Constitution. These constitutional courts would have to sit in each
of the 63 foreign countries where American troops are stationed at
the present time. Aside from the fact that the Constitution has
never been interpreted to compel such an undertaking, it would seem
obvious that it would be manifestly impossible. The problem of the
use of juries in common law countries alone suffices to illustrate
this. Obviously, the jury could not be limited to those who live
within the military installation. To permit this would be a sham. A
jury made up of military personnel would be tantamount to the
personnel of a court-martial to which the former minority objects.
A jury composed of civilians residing on the military installation
is subject to the same criticism. If the jury is selected from
among the local populace, how would the foreign citizens be forced
to attend the trial? And perchance if they did attend, language
barriers in non-English-speaking countries would be nigh
insurmountable. Personally, I would much prefer, as did Mrs.
Madsen, that my case be tried before a Page 354 U. S. 88 military court-martial of my own countrymen. Moreover, we must
remember that the agreement of the foreign country must be obtained
before any American court could sit in its territory. In non-common
law countries, if such courts were permitted to sit -- a doubtful
possibility -- our jury system would be tossed about like a cork on
unsettled waters.

															Likewise, trial of offenders by an Article III court in this
country, perhaps workable in some cases, is equally impracticable
as a general solution to the problem. The hundreds of petty cases
involving black-market operations, narcotics, immorality, and the
like, could hardly be brought here for prosecution even if the
Congress and the foreign nation involved authorized such a
procedure. Aside from the tremendous waste of the time of military
personnel and the resultant disruptions, as well as the large
expenditure of money necessary to bring witnesses and evidence to
the United States, the deterrent effect of the prosecution would be
nil because of the delay and distance at which it would be held.
Furthermore, compulsory process is an essential to any system of
justice. The attendance of foreign nationals as witnesses at a
judicial proceeding in this country could rest only on a voluntary
basis, and depositions could not be required. As a matter of
international law, such attendance could never be compelled, and
the court in such a proceeding would be powerless to control this
vital element in its procedure. In short, this solution could only
result in the practical abdication of American judicial authority
over most of the offenses committed by American civilians in
foreign countries.

															The only alternative remaining -- probably the alternative that
the Congress will now be forced to choose -- is that Americans
committing offenses on foreign soil be tried by the courts of the
country in which the offense is committed. Foreign courts have
exclusive jurisdiction Page 354 U. S. 89 under the principles of international law, and many nations
enjoy concurrent jurisdiction with the American military
authorities pursuant to Article VII of the Agreement Regarding
Status of Forces of Parties to the North Atlantic Treaty. [ Footnote 4/4 ] Where the American military
authorities do have jurisdiction, it is only by mutual agreement
with the foreign sovereign concerned and pursuant to carefully
drawn agreements conditioned on trial by the American military
authorities. Typical of these agreements was the one concluded
between the United States and Japan on February 28, 1952, and in
force at the time one of these cases arose. Under this and like
agreements, the jurisdiction so ceded to the United States military
courts will surely be withdrawn if the services are impotent to
exercise it. It is clear that trial before an American
court-martial in which the fundamentals of due process are observed
is preferable to leaving American servicemen and their dependents
to the widely varying standards of justice in foreign courts
throughout the world. Under these circumstances, it is untenable to
say that Congress could have exercised a lesser power adequate to
the end proposed. II My brothers who are concurring in the result seem to find some
comfort in that, for the present they void an Act of Congress only
as to capital cases. I find no distinction in the Constitution
between capital and other cases. In fact, at argument, all parties
admitted there could be no valid difference. My brothers are
careful not to say that they would uphold the Act as to offenses
less than capital. They unfortunately leave that decision for Page 354 U. S. 90 another day. This is disastrous to proper judicial
administration, as well as to law enforcement. The Congress and the
Executive Department are entitled to know whether a court-martial
may be constitutionally utilized to try an offense less than
capital. If so, then all that is necessary is to eliminate capital
punishment insofar as Article 2(11) offenses are concerned. I
deeply regret that the former minority does not, now that it has
become the majority, perform the high duty that circumstance
requires. Both the Congress and the Executive are left only to
conjecture as to whether they should "sack" Article 2(11) and
require all dependents to return and remain within this country or
simply eliminate capital punishment from all offenses under the
Article. The morale of our troops may prevent the former, and
certainly the abstention of this Court prohibits the latter. All
that remains is for the dependents of our soldiers to be prosecuted
in foreign courts, an unhappy prospect not only for them but for
all of us.

															[ Footnote 4/1 ]

															The Court was composed of Chief Justice Taft and Associate
Justices Holmes, Van Devanter, McReynolds, Brandeis, Sutherland,
Butler, Sanford, and Stone. Mr. Justice Van Devanter wrote the
opinion for the Court.

															[ Footnote 4/2 ]

															An interesting and authoritative treatment of court-martial
jurisdiction over camp followers is found in Blumenthal, Women Camp
Followers of the American Revolution (1952). It points out many
instances where women, not in the armed services, were subjected to
a court-martial long after the war had ended. This was not taken to
be an "astronomical doctrine" either in our forces or abroad.

															[ Footnote 4/3 ]

															In this connection see " Madsen v. Kinsella --
Landmark and Guidepost in Law of Military Occupation," by John M.
Raymond, Assistant Legal Adviser, Department of State, 47
Am.J.Int'l L. 300 (1953)

															[ Footnote 4/4 ]

															NATO Status of Forces Agreement, T.I.A.S. 2846 (signed in London
on July 19, 1951), 4 U.S. Treaties and Other International
Agreements 1792.

Summary: In the case of Reid v. Covert, the United States Supreme Court decided that civilian dependents of military personnel cannot be tried by a military court-martial in capital cases when accompanying the armed forces overseas during peacetime. The Court concluded that the United States must act within the limitations of the Constitution, including the Fifth and Sixth Amendments, when dealing with its citizens abroad. The power of Congress to regulate the military does not extend to civilians, and only courts of law have the authority to try civilians for offenses against the United States. This decision affirmed the protection of specific constitutional rights for civilians, even in the context of military presence overseas.