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 peacetime to the trial of a civilian
dependent accompanying a member of the armed forces overseas and
charged with having committed a noncapital offense there.
Reid
v. Covert, 354 U. S. 1. Pp.
361 U. S.
235-249.
(a) In providing for trials by courts-martial, Congress was
exercising the power granted by Art. I, § 8, cl. 14 of the
Constitution to "make Rules for the Government and Regulation of
the land and naval Forces," and the test for court-martial
jurisdiction is one of status --
i.e., whether the accused
is a person who can be regarded as falling within the term "land
and naval Forces."
Toth v. Quarles, 350 U. S.
11;
Reid v. Covert, 354 U. S.
1. Pp.
361 U. S.
236-241.
(b) Under Art. I, § 8, cl. 14, no constitutional distinction can
be drawn between capital and noncapital offenses; if a civilian
cannot be tried by court-martial in peacetime for a capital
offense, he cannot be tried by court-martial in peacetime for a
noncapital offense. Pp.
361 U. S.
241-248.
(c) The Necessary and Proper Clause, Art. I, § 8, cl. 18, does
not enable Congress to broaden the term "land and naval Forces" in
Clause 14 to include civilian dependents accompanying members of
the armed forces overseas, even in providing for trials for
noncapital offenses. Pp.
361 U. S.
247-248.
(d) The dependent wife of a soldier here involved was entitled
to the safeguards of Article III and the Fifth and Sixth Amendments
of the Constitution, and her conviction by court-martial was not
constitutionally permissible. P.
361 U. S.
249.
164 F. Supp. 707 affirmed.
Page 361 U. S. 235
MR. JUSTICE CLARK delivered the opinion of the Court.
This direct appeal tests the constitutional validity of
peacetime court-martial trials of civilian persons "accompanying
the armed forces outside the United States" [
Footnote 1] and charged with noncapital offenses
under the Uniform Code of Military Justice, 10 U.S.C. § 802, 70A
Stat. 37. Appellee contends that the dependent wife of a soldier
can be tried only in a court that affords her the safeguards of
Article III and of the Fifth and Sixth Amendments of the
Constitution. The trial court held Article 2(11) of the Code
unconstitutional as applied to civilian dependents accompanying the
armed forces overseas and charged with noncapital offenses, 164 F.
Supp. 707, and the Government appealed. We noted probable
jurisdiction and permitted appellee to proceed
in forma
pauperis. 359 U.S. 903.
The appellee is the mother of Mrs. Joanna S. Dial, the wife of a
soldier who was assigned to a tank battalion of the United States
Army. The Dials and their three children lived in government
housing quarters at Baumholder, Germany. In consequence of the
death of one of their children, both of the Dials were charged
with
Page 361 U. S. 236
unpremeditated murder, under Article 118(2) of the Uniform Code
of Military Justice. Upon the Dials' offer to plead guilty to
involuntary manslaughter under Article 119 of the Code, both
charges were withdrawn and new ones charging them separately with
the lesser offense were returned. They were then tried together
before a general court-martial at Baumholder. Mrs. Dial challenged
the jurisdiction of the court-martial over her but, upon denial of
her motion, pleaded guilty, as did her husband. Each was sentenced
to the maximum penalty permitted under the Code. Their convictions
were upheld by the Court of Military Appeals, and Mrs. Dial was
returned to the United States and placed in the Federal Reformatory
for Women at Alderson, West Virginia. Thereafter, the appellee
filed this petition for habeas corpus and obtained Mrs. Dial's
discharge from custody. From this judgment, the warden has
appealed.
As has been noted, the jurisdiction of the court-martial was
based upon the provisions of Article 2(11) of the Code. The
Congress enacted that article in an effort to extend, for
disciplinary reasons, the coverage of the Uniform Code of Military
Justice to the classes of persons therein enumerated. The
jurisdiction of the Code only attached, however, when and if its
applicability in a given foreign territory was sanctioned under
"any treaty or agreement to which the United States is or may be a
party" with the foreign sovereignty, or under "any accepted rule of
international law." The existence of such an agreement here is
admitted. The constitutionality of Article 2(11), as it applies in
time of peace to civilian dependents charged with noncapital
offenses under the Code, is the sole issue to be decided.
The question is not one of first impression, as we had before us
in 1956 the constitutionality of the article as applied to civilian
dependents charged with capital offenses in the companion cases of
Kinsella v.
Krueger,
Page 361 U. S. 237
351 U. S. 470, and
Reid v. Covert, 351 U. S. 487. At
the original submission of those cases, we decided by a bare
majority that the article was a valid exercise of the power of the
Congress, under Art. IV, § 3, to "make all needful Rules and
Regulations" for the "Territories" of the United States. We held
further that the "procedure in such tribunals need not comply with
the standards prescribed by the Constitution for Article III
courts," 351 U.S. at
351 U. S. 475,
and specifically upheld court-martial jurisdiction in such cases
against the contention that its procedures did not provide for
indictment by grand jury or trial by petit jury. In short, we said
that the failure to provide such protections raised "no
constitutional defect," citing
In re Ross, 140 U.
S. 453 (1891), and the
Insular Cases, such as
Balzac v. Porto Rico, 258 U. S. 298
(1922). After rehearing at the following Term, these opinions were
withdrawn and judgments were entered declaring the article
unconstitutional when applied to civilian dependents charged with
capital offenses.
Reid v. Covert, consolidated with
Kinsella v. Krueger, 354 U. S. 1 (1957).
The Court held [
Footnote 2]
that the power over "Territories," as applied by the
In re
Ross doctrine, was neither applicable nor controlling. It
found that trial by court-martial was the exercise of an
exceptional jurisdiction springing from the power granted the
Congress in Art. I, § 8, cl. 14, "To make Rules for the Government
and Regulation of the land and naval Forces," as supplemented by
the Necessary and Proper Clause of Art. I, § 8 cl. 18. [
Footnote 3] But, as applied to the
Page 361 U. S. 238
civilian dependents there involved, it must be considered, the
Court said, in relation to Article III and the Fifth and Sixth
Amendments. The majority concluded that, in those capital cases,
trial by court-martial as provided could not constitutionally be
justified.
The appellee contends that this result, declaring civilian
dependents charged with capital offenses not to be subject to the
provisions of the Code, bears directly on its applicability to the
same class charged with noncapital crimes. She says that the test
of whether civilian dependents come within the power of Congress as
granted in Clause 14's limitation to the "land and naval Forces" is
the status of the person involved. Her conclusion is that, if
civilian dependents charged with capital offenses are not within
that language,
a fortiori persons in the same class
charged with noncapital offenses cannot be included, since the
clause draws no distinction as to offenses. The Government fully
accepts the holding in the second
Covert case,
supra. It contends that the case is controlling only where
civilian dependents are charged with capital offenses, and that, in
fact, the concurrences indicate that considerations of a compelling
necessity for prosecution by courts-martial of civilian dependents
charged with noncapital offenses might permit with reason the
inclusion of that limited category within court-martial
jurisdiction. It submits that such necessities are controlling in
the case of civilian dependents charged with noncapital crimes. It
points out that such dependents affect the military community as a
whole; that they have, in fact, been permitted to enjoy their
residence in such communities on the representation that they are
subject to military control, and that realistically they are a part
of the military establishment. It argues that, from a morale
standpoint, the present need for dependents to accompany American
forces maintained abroad is a pressing one;
Page 361 U. S. 239
that their special status as integral parts of the military
community requires disciplinary control over them by the military
commander; that the effectiveness of this control depends upon a
readily available machinery affording a prompt sanction and
resulting deterrent present only in court-martial jurisdiction, and
that not only is court-martial procedure inherently fair, but there
are no alternatives to it. The Government further contends that it
has entered into international agreements with a large number of
foreign governments permitting the exercise of military
jurisdiction in the territory of the signatories, and, pursuant to
the same, it has been utilizing court-martial procedures at various
American installations abroad. Its legal theory is based on
historical materials which it asserts indicate a well established
practice of court-martial jurisdiction over civilians accompanying
the armed forces, during Colonial days as well as the formative
period of our Constitution. From this it concludes that civilian
dependents may be included as a necessary and proper incident to
the congressional power "To make Rules for the Government and
Regulation of the land and naval Forces," as granted in Clause
14.
In this field,
Toth v. Quarles, 350 U. S.
11 (1955), cited with approval by a majority in the
second
Covert case,
supra, is a landmark.
Likewise, of course, we must consider the effect of the latter case
on our problem. [
Footnote 4] We
therefore turn to their teachings. The
Toth case involved
a discharged soldier who was tried by court-martial after his
discharge from the Army for an offense committed before his
discharge. It was said there that the Clause 14 "provision itself
does not empower Congress to deprive
Page 361 U. S. 240
people of trials under Bill of Rights safeguards," 350 U.S. at
350 U. S. 21-22,
and that military tribunals must be restricted "to the narrowest
jurisdiction deemed absolutely essential to maintaining discipline
among troops in active service,"
id. at
350 U. S. 22. We
brushed aside the thought that "considerations of discipline" could
provide an excuse for "
new expansion of court-martial
jurisdiction at the expense of the normal and constitutionally
preferable system of trial by jury."
Id. at
350 U. S. 22-23.
(Italics supplied.) We were therefore "not willing to hold that
power to circumvent those safeguards should be inferred through the
Necessary and Proper Clause."
Id. at
350 U. S. 22.
The holding of the case may be summed up in its own words, namely,
that
"the power granted Congress 'To make Rules' to regulate 'the
land and naval Forces' would seem to restrict court-martial
jurisdiction to persons who are actually members or part of the
armed forces."
Id. at
350 U. S.
15.
It was with this gloss on Clause 14 that the Court reached the
second
Covert case,
supra. There, as we have
noted, the person involved was the civilian dependent of a soldier,
who was accompanying him outside the United States when the capital
offense complained of was committed. The majority concluded
that
"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'. . . ."
Concurring opinion, 354 U.S. at
354 U. S. 42.
[
Footnote 5] (Italics
supplied.) The test
Page 361 U. S. 241
for jurisdiction, it follows, is one of status, namely, whether
the accused in the court-martial proceeding is a person who can be
regarded as falling within the term "land and naval Forces." The
Court concluded that civilian dependents charged with capital
offenses were not included within such authority, the concurring
Justices expressing the view that they did 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' of those forces as reasonably to demonstrate a
justification for court-martial jurisdiction over capital
offenses."
Concurring opinion, 354 U.S. at
354 U. S. 46-47.
In the second
Covert case, each opinion supporting the
judgment struck down the article as it was applied to civilian
dependents charged with capital crimes. The separate concurrences
supported the judgment on the theory, that the crime being "in fact
punishable by death,"
id. at
354 U. S. 45, the
question to be decided is "analogous, ultimately, to issues of due
process,"
id. at
354 U. S. 75. The
Justices joining in the opinion announcing the judgment, however,
did not join in this view, but held that the constitutional
safeguards claimed applied in "
all criminal trials" in
Article III courts and applied "outside of the States," pointing
out that both the Fifth and Sixth Amendments were "all-inclusive
with their sweeping references to
no person' and to `all
criminal prosecutions.'" Id. at 354 U. S. 7-8. The
two dissenters [Footnote 6]
found "no distinction in the Constitution between capital and other
cases," id. at 354 U. S. 89, but
said that the constitutional safeguards claimed were not required
under the power granted Congress in Art. IV, § 3, and the cases
heretofore mentioned. The
Page 361 U. S. 242
briefs and argument in
Covert reveal that it was argued
and submitted by the parties on the theory that no constitutional
distinction could be drawn between capital and noncapital offenses
for the purposes of Clause 14. Supplemental Brief for Government on
Rehearing, Nos. 701 and 713, at pp. 16-20, 82-95.
We have given careful study to the contentions of the
Government. They add up to a reverse of form from the broad
presentation in
Covert, where it asserted that no
distinction could be drawn between capital and noncapital offenses.
But the same fittings are used here with only adaptation to
noncapital crimes. The Government asserts that the second
Covert case, rather than foreclosing the issue here,
indicates that military tribunals would have jurisdiction over
civilian dependents charged with offenses less than capital. It
says that the trial of such a person for a noncapital crime is
"significantly different" from his trial for a capital one, that
the maintaining of different standards or considerations in capital
cases is not a new concept, and that, therefore, there must be a
fresh evaluation of the necessities for court-martial jurisdiction
and a new balancing of the rights involved. As we have indicated,
these necessities add up to about the same as those asserted in
capital cases and which the concurrence in second
Covert
held as not of sufficient "proximity, physical and social . . . to
the
land and naval Forces' . . . as reasonably to demonstrate a
justification" for court-martial prosecution. Likewise in the
Government's historical material -- dealing with court-martial
jurisdiction during peace -- which was found in Covert
"too episodic, too meager . . . for constitutional adjudication,"
concurring opinion, 354 U.S. at 354 U. S. 64, it
has been unable to point out one court-martial which drew any
distinction, insofar as the grant of power to the Congress under
Clause 14 was concerned, between
Page 361 U. S. 243
capital and noncapital crimes. [
Footnote 7] The Government makes no claim that
historically there was ever any distinction made as to the
jurisdiction of courts-martial to try civilian dependents on the
basis of capital as against noncapital offenses. Without
contradiction, the materials furnished show that military
jurisdiction has always been based on the "status" of the accused,
rather than on the nature of the offense. To say that military
jurisdiction "defies definition in terms of military `status'" is
to defy unambiguous language of Art. I, § 8, cl. 14, as well as the
historical background thereof and the precedents with reference
thereto. [
Footnote 8]
Furthermore, we are not convinced that a critical impact upon
discipline will result, as claimed by the Government (even if
anyone deemed this a relevant consideration), if noncapital
offenses are given the same treatment as capital ones by virtue of
the second
Covert case. The same necessities claimed here
were found
Page 361 U. S. 244
present in the second
Covert case (
see the
dissent there) and were rejected by the Court. Even if the
necessity for court-martial jurisdiction be relevant in cases
involving deprivation of the constitutional rights of civilian
dependents, which we seriously question, we doubt that the
existence of the small number of noncapital cases now admitted by
the Government in its brief here, [
Footnote 9] when spread over the worldwide coverage of
military installations, would of itself bring on such a crisis.
Moreover, in the critical areas of occupation, other legal grounds
may exist for court-martial jurisdiction as claimed by the
Government in No. 37,
Wilson v. Bohlender, post, p.
361 U. S. 281.
See Madsen v. Kinsella, 343 U. S. 341
(1952). Another serious obstacle to permitting prosecution of
noncapital offenses while rejecting capital ones is that it would
place in the hands of the military an unreviewable discretion to
exercise jurisdiction over civilian dependents simply by
downgrading the offense, thus stripping the accused of his
constitutional rights and protections. By allowing this assumption
of "the garb of mercy," [
Footnote 10] we would be depriving a capital offender of
his
Page 361 U. S. 245
constitutional means of defense and, in effect, would nullify
the second
Covert case. This situation will be aggravated
by the want of legislation providing for trials in capital cases in
Article III courts sitting in the United States. At argument, the
Government indicated that there had been no effort in the Congress
to make any provision for the prosecution of such cases either in
continental United States or in foreign lands. Still, we heard no
claim that the total failure to prosecute capital cases against
civilian dependents since the second
Covert decision in
1957 had affected in the least the discipline at armed services
installations. We do know that, in one case,
Wilson v.
Girard, 354 U. S. 524
(1957), the Government insisted and we agreed that it had the power
to turn over an American soldier to Japanese civil authorities for
trial for an offense committed while on duty. We have no
information as to the impact of that trial on civilian dependents.
Strangely, this itself might
Page 361 U. S. 246
prove to be quite an effective deterrent. Moreover, the
immediate return to the United States permanently of such civilian
dependents, or their subsequent prosecution in the United States
for the more serious offenses when authorized by the Congress,
might well be the answer to the disciplinary problem. Certainly
such trials would not involve as much expense, nor be as difficult
of successful prosecution, as capital offenses.
We now reach the Government's suggestion that, in the light of
the noncapital nature of the offense here, as opposed to the
capital one in the
Covert case, we should make a "fresh
evaluation and a new balancing." But the power to "make Rules for
the Government and Regulation of the land and naval Forces" bears
no limitation as to offenses. The power there granted includes not
only the creation of offenses, but the fixing of the punishment
therefor. If civilian dependents are included in the term "land and
naval Forces" at all, they are subject to the full power granted
the Congress therein to create capital as well as noncapital
offenses. This Court cannot diminish and expand that power, either
on a case-by-case basis or on a balancing of the power there
granted Congress against the safeguards of Article III and the
Fifth and Sixth Amendments. Due process cannot create or enlarge
power.
See Toth v. Quarles, supra. It has to do, as taught
by the Government's own cases, [
Footnote 11] with the denial of that "fundamental
fairness, shocking to the universal sense of justice."
Betts v.
Brady, 316 U. S. 455,
316 U. S. 462
(1942). It deals neither with power nor with jurisdiction, but with
their exercise. Obviously Fourteenth Amendment cases dealing with
state action have no application here, but, if they did, we believe
that, to deprive civilian dependents of the safeguards of a jury
trial here, an
Page 361 U. S. 247
infamous case by constitutional standards, would be as invalid
under those cases as it would be in cases of a capital nature. Nor
do we believe that due process considerations bring about an
expansion of Clause 14 through the operation of the Necessary and
Proper Clause. If the exercise of the power is valid, it is because
it is granted in Clause 14, not because of the Necessary and Proper
Clause. The latter clause is not itself a grant of power, but a
caveat that the Congress possesses all the means necessary to carry
out the specifically granted "foregoing" powers of § 8 "and all
other Powers vested by this Constitution. . . ." As James Madison
explained, the Necessary and Proper Clause is
"but merely a declaration, for the removal of all uncertainty,
that the means of carrying into execution those [powers] otherwise
granted are included in the grant."
VI Writings of James Madison, edited by Gaillard Hunt, 383.
There can be no question but that Clause 14 grants the Congress
power to adopt the Uniform Code of Military Justice. Our initial
inquiry is whether Congress can include civilian dependents within
the term "land and naval Forces" as a proper incident to this power
and necessary to its execution. If answered in the affirmative,
then civilian dependents are amenable to the Code. In the second
Covert case,
supra, it was held they were not so
amenable as to capital offenses. Our final inquiry, therefore, is
narrowed to whether Clause 14, which under the second
Covert case has been held not to include civilian
dependents charged with capital offenses, may now be expanded to
include civilian dependents who are charged with noncapital
offenses. We again refer to James Madison:
"When the Constitution was under the discussions which preceded
its ratification, it is well known that great apprehensions were
expressed by many lest the omission of some positive exception from
the powers
Page 361 U. S. 248
delegated of certain rights . . . might expose them to the
danger of being drawn, by construction, within some of the powers
vested in Congress, more especially of the power to make all laws
necessary and proper for carrying their other powers into
execution. In reply to this objection, it was invariably urged to
be a fundamental and characteristic principle of the Constitution
that all powers not given by it were reserved; that no powers were
given beyond those enumerated in the Constitution, and such as were
fairly incident to them; . . . ."
Writings,
supra, at 390. We are therefore constrained
to say that, since this Court has said that the Necessary and
Proper Clause cannot expand Clause 14 so as to include prosecution
of civilian dependents for capital crimes, it cannot expand Clause
14 to include prosecution of them for noncapital offenses.
Neither our history nor our decisions furnish a foothold for the
application of such due process concept as the Government projects.
Its application today in the light of the irreversibility of the
death penalty would free from military prosecution a civilian
accompanying or employed by the armed services who committed a
capital offense, while the same civilian could be prosecuted by the
military for a noncapital crime. It is illogical to say that
"the power respecting the land and naval forces encompasses . .
. all that Congress may appropriately deem 'necessary' for their
good order"
and still deny to Congress the means to exercise such power
through the infliction of the death penalty. But that is proposed
here. In our view, this would militate against our whole concept of
power and jurisdiction. It would likewise be contrary to the entire
history of the Articles of War. Even prior to the Constitutional
Convention, the Articles of War included 17 capital offenses
applicable to all persons whose status brought them within the term
"land
Page 361 U. S. 249
and naval Forces." There were not then, and never have been, any
exceptions as to persons in the applicability of these capital
offenses. In 1806, when the Articles of War were first revised,
Congress retained therein 16 offenses that carried the death
penalty, although there was complaint that "almost every article in
the bill was stained with blood." 15 Annals of Cong. 326.
Nor do we believe that the exclusion of noncapital offenses
along with capital ones will cause any additional disturbance in
our "delicate arrangements with many foreign countries." The
Government has pointed to no disruption in such relations by reason
of the second
Covert decision. Certainly this case
involves no more "important national concerns into which we should
be reluctant to enter" than did
Covert. In truth, the
problems are identical, and are so intertwined that equal treatment
of capital and noncapital cases would be a palliative to a troubled
world.
We therefore hold that Mrs. Dial is protected by the specific
provisions of Article III and the Fifth and Sixth Amendments, and
that her prosecution and conviction by court-martial are not
constitutionally permissible. The judgment must therefore be
Affirmed.
[
Footnote 1]
Art. 2.
"The following persons are subject to this chapter:"
"
* * * *"
"(11) Subject to any treaty or agreement to which the United
States is or may be a party or to any accepted rule of
international law, persons serving with, employed by, or
accompanying the armed forces outside the United States and outside
the following: that part of Alaska east of longitude 172 degrees
west, the Canal Zone, the main group of the Hawaiian Islands,
Puerto Rico, and the Virgin Islands . "
[
Footnote 2]
Four Justices joined in an opinion announcing the judgment, two
concurred in the result, and two dissented. MR. JUSTICE WHITTAKER,
having come to the Court subsequent to the time of argument and
decision in this case, took no part.
[
Footnote 3]
Clause 18.
"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 4]
See also Dynes v.
Hoover, 20 How. 65 (1857);
Ex parte
Milligan, 4 Wall. 2 (1866);
Duncan v.
Kalanamoku, 327 U. S. 304
(1946), and Winthrop, Military Law and Precedents (2d ed. 1896),
144
et seq. and Reprint (1920) 105-107.
[
Footnote 5]
The second concurring opinion expressed the view that Article I
was an unlimited grant of power to Congress "to make such laws in
the regulation of the land and naval forces as are necessary to the
proper functioning of those forces," and indicated that the
Necessary and Proper Clause "modified" Clause 14 "expanding" its
power "under changing circumstances." 354 U.S. at
354 U. S. 68.
[
Footnote 6]
The writer of this opinion wrote the dissent.
[
Footnote 7]
Even at argument here, government counsel admitted he had found
no such distinction other than that asserted by the concurrences in
second
Covert:
"MR. JUSTICE BACK: What is the historical difference as to the
'Members of the land and naval Forces' and the constitutional power
of Congress dependent upon whether they are capital crimes or
noncapital crimes? When did that distinction first come into
existence?"
"MR. DAVIS: Well, I think that distinction was first articulated
in the concurring opinions in the
Covert case."
"
* * * *"
"MR. JUSTICE BLACK: I really asked you about the history because
I was curious to know [whether], in your reading and so forth, you
found any reference to that distinction in this field before the
Covert case."
"MR. DAVIS: No. No explicit reference, Mr. Justice Black."
[
Footnote 8]
It was for this reason that the majority in the first
Covert case,
supra, based its decision on Art.
IV, § 3, rather than the congressional power under Clause 14.
[
Footnote 9]
Aside from traffic violations, there were only 273 cases (both
capital and noncapital) involving dependents subject to foreign
jurisdiction during the period between December 1, 1954, and
November 30, 1958. This number includes 54 "[o]ffenses against
economic control laws" and 88 offenses denominated "other."
Government's Brief on the Merits in
McElroy v. Gagliardo,
No. 21, at p. 75.
[
Footnote 10]
"He was glad, he said, that the penalty under this bill was not
to be greater than that to which persons were subjected who were
convicted of counterfeiting the great seal; but, on the other hand,
he feared that this seeming lenity was not what it appeared to be,
the child of mercy; he apprehended that its object was to
facilitate the conviction of the accused by taking from him the
means of defense, which he might claim as his right, if the bill
left the enumerated acts within the statute of the 25th of Edward
III. These acts might be considered as proofs of an adherence to
the king's enemies, and consequently came within the species of
treason on which corruption of blood attached; but, by classing
them under the head of treasons which did not operate a corruption
of blood, the framers of the bill had contrived to take from the
accused the means of defence, under the appearance of lenity. Of
all the characters of cruelty, he considered that as the most
odious which assumed the garb of mercy; such was the case here --
under the pretence of mercy to the accused in not charging him with
corruption of blood, he was to be deprived of the means of making
his defense. That he might not stand a chance in the contest, his
shield was to be taken from him. The list of the jury, to give him
the benefit of the challenge -- the list of witnesses, to enable
him to detect conspiracies and to prevent perjury -- the copy of
the charge ten days before the trial, to enable him to prepare
himself for the awful day -- the assistance of a learned gentleman
to speak for an unlearned man -- all the arms and means of
protection with which the humanity of the law of England had
fortified an individual when accused by the Crown, were to be taken
away. Harshness and severity were to be substituted for tenderness
and compassion, and then he was to be insulted by being told he was
spared the corruption of blood!"
5 The Speeches of the Right Hon. Charles James Fox in the House
of Commons (London 1815) 78.
[
Footnote 11]
Powell v. Alabama, 287 U. S. 45
(1932), and
Betts v. Brady, 316 U.
S. 455 (1942), both Fourteenth Amendment cases which
would, of course, have no application here.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER joins,
dissenting in Nos. 22, 21, and 37, and concurring in No. 58.
*
Within the compass of "any treaty or agreement to which the
United States is or may be a party" and "any accepted rule of
international law," Article 2(11) of the Uniform Code of Military
Justice makes subject to the
Page 361 U. S. 250
Code, and therefore prosecutable by courts-martial for offenses
committed abroad, all "persons serving with, employed by, or
accompanying the armed forces" outside the United States and
certain other areas. [
Footnote
2/1]
These four cases, involving persons and crimes concededly
covered by the Military Code, bring before us the constitutionality
of Article 2(11) as applied to (1) civilian service dependents
charged with noncapital offenses (No. 22); (2) civilian service
employees, also charged with noncapital offenses (Nos. 21 and 37);
[
Footnote 2/2] and (3) civilian
service employees charged with capital offenses (No. 58). In each
instance, the Court holds the Act unconstitutional. While I agree
with the judgment in No. 58, which involves a capital offense, I
cannot agree with the judgments in Nos. 22, 21 and 37, in each of
which the conviction was for a noncapital offense.
The effect of these decisions is to deny to Congress the power
to give the military services, when the United States is not
actually at war, criminal jurisdiction over noncapital offenses
committed by nonmilitary personnel while accompanying or serving
with our armed forces abroad. I consider this a much too narrow
conception of the constitutional power of Congress, and the result
particularly unfortunate in the setting of the present-day
international scene. To put what the Court has decided in proper
context, some review of the past fate of Article 2(11) in this
Court is desirable.
At the 1955 Term, there came before the Court in
Kinsella v.
Krueger, 351 U. S. 470, and
Reid v.
Covert,
Page 361 U. S. 251
351 U. S. 487 the
question whether two army wives could be constitutionally
convicted, under Article 2(11), of the capital offense of first
degree murder, committed while stationed with their husbands at
military bases abroad. Initially, a divided Court, in two opinions
which I joined, upheld the convictions. [
Footnote 2/3] In so holding, the Court relied not upon
the constitutional power of Congress "To make Rules for the
Government and Regulation of the land and naval Forces," Art. I, §
8, cl. 14, but upon
In re Ross, 140 U.
S. 453, the so-called
Insular Cases, e.g., Balzac v.
Porto Rico, 258 U. S. 298, and
Art. IV, § 3, of the Constitution, respecting congressional power
over Territories. These factors, in combination, led the Court to
conclude that the constitutional guarantees of Article III and the
Fifth and Sixth Amendments did not apply to criminal trials of
Americans abroad before legislatively established tribunals; that
it was permissible for Congress to conclude that persons
circumstanced as those women were should be tried before a
court-martial, rather than a civil tribunal, and that such trials
did not offend the fundamentals of due process.
The decisions in these cases were reached under the pressures of
the closing days of the Term.
See 351 U.S. at
351 U. S.
483-486. Having become convinced over the summer that
the grounds on which they rested were untenable, I moved at the
opening of the 1956 Term that the cases be reheard, being joined by
the four Justices who had been in the minority.
See 352
U.S. 901,
354 U. S. 354 U.S.
l,
354 U. S. 65-67.
[
Footnote 2/4]
Page 361 U. S. 252
Upon a consolidated rehearing of the cases, the Court's original
opinions and the judgments of conviction were set aside, a majority
of the Court then holding that whether the convictions should stand
or fall depended solely on the Art. I, § 8, cl. 14 power, and that
such power could not be constitutionally applied in those cases.
Reid v. Covert, 354 U. S. 1. There
was, however, no opinion for the Court. Four Justices joined in an
opinion broadly holding that "civilians" can never be criminally
tried by military courts in times of peace,
id. at
354 U. S. 3-41.
[
Footnote 2/5] Two Justices
concurred specially in the result on the narrow ground that Article
2(11) could not be so applied to civilian service dependents
charged with capital offenses, explicitly reserving judgment,
however, as to whether nonmilitary personnel charged with other
than capital offenses could be subjected to such trials. [
Footnote 2/6]
Id. at
354 U. S. 41-64,
354 U. S. 65-78.
Two Justices dissented, adhering to the grounds expressed in the
earlier majority opinions. [
Footnote
2/7]
Id. at
354 U. S. 78. And
one Justice did not participate in the cases. [
Footnote 2/8]
Thus, the only issue that second
Covert actually
decided was that Article 2(11) could not be constitutionally
applied to civilian service dependents charged with capital
offenses. Nevertheless, despite the wide differences of views by
which this particular result was reached -- none of which commanded
the assent of a majority of the Court --
Covert is now
regarded as establishing that nonmilitary personnel are never
within the reach of the Article I power in times of peace. On this
faulty view of the case, it is considered that
Covert
controls the issues presently before us. Apart from that view, I
think it fair
Page 361 U. S. 253
to say different results might well have been reached in the
three noncapital cases now under consideration. Without needlessly
traversing ground already covered in my separate opinion in
Covert, id. at
354 U. S. 67-78,
I shall give my reasons for believing that, while the result
reached by the Court in the capital case is right, its decisions in
the noncapital cases are wrong.
First. The Court's view of the effect of
Covert in these noncapital cases stems from the basic
premise that only persons occupying a military "status" are within
the scope of the Art. I, § 8, cl. 14 power. The judgment in
Covert having decided that civilian service dependents
were not within the reach of that power in capital cases, it is
said to follow that such dependents, and presumably all other
"civilians," may also not be tried by courts-martial in noncapital
cases; this because neither the statute nor Article I makes
exercise of the power turn upon the nature of the offense
involved.
I think the "status" premise on which the Court has proceeded is
unsound. Article I, § 8, cl. 14, speaks not in narrow terms of
soldiers and sailors, but broadly gives Congress power to prescribe
"Rules for the Government and Regulation of the land and naval
Forces." [
Footnote 2/9] This power
must be read in connection with Clause 18 of the same Article,
authorizing Congress
"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."
Thus, read, the power respecting the land and naval forces
encompasses, in my opinion, all that Congress may appropriately
deem "necessary" for their good order. It
Page 361 U. S. 254
does not automatically exclude the regulation of nonmilitary
personnel.
I think it impermissible to conclude, as some of my brethren
have indicated on an earlier occasion (
see second
Covert, supra, at
354 U. S. 20-22), and as the Court now holds,
ante p.
361 U. S. 248,
that the Necessary and Proper Clause may not be resorted to in
judging constitutionality in cases of this type. The clause, itself
a part of Art. I, § 8, in which the power to regulate the armed
forces is also found, applies no less to that power than it does to
the other § 8 congressional powers, and indeed is to be read "as an
integral part of each" such power. Second
Covert, supra,
at
354 U. S. 43
(concurring opinion of FRANKFURTER, J.). As Mr. Justice Brandeis
put it in
Jacob Ruppert v. Caffey, 251 U.
S. 264, at
251 U. S.
300-301:
"Whether it be for purposes of national defense, or for the
purpose of establishing post offices and post roads, or for the
purpose of regulating commerce among the several States, Congress
has the power 'to make all laws which shall be necessary and proper
for carrying into execution' the duty so reposed in the Federal
Government. While this is a Government of enumerated powers, it has
full attributes of sovereignty within the limits of those powers.
In re Debs, 158 U. S. 564. Some confusion of
thought might perhaps have been avoided if, instead of
distinguishing between powers by the terms express and implied, the
terms specific and general had been used. For the power conferred
by clause 18 of § 8 'to make all laws which shall be necessary and
proper for carrying into execution' powers specifically enumerated
is also an express power. . . ."
See also United States v. Classic, 313 U.
S. 299,
313 U. S.
320.
Of course, the Necessary and Proper Clause cannot be used to
"expand" powers which are otherwise constitutionally
Page 361 U. S. 255
limited, but that is only to say that, when an asserted power is
not appropriate to the exercise of an express power, to which all
"necessary and proper" powers must relate, the asserted power is
not a "proper" one. But to say, as the Court does now, that the
Necessary and Proper Clause "is not itself a grant of power" is to
disregard Clause 18 as one of the enumerated powers of § 8 of Art.
I.
Viewing Congress' power to provide for the governing of the
armed forces in connection with the Necessary and Proper Clause, it
becomes apparent, I believe, that a person's "status" with
reference to the military establishment is but one, and not alone
the determinative, factor in judging the constitutionality of a
particular exercise of that power. By the same token, the major
premise on which the Court ascribes to
Covert a
controlling effect in these noncapital cases disappears.
Second. It is further suggested that the difference
between capital and noncapital offenses is not constitutionally
significant, and that, if Article 2(11) of the Military Code, as
applied to nonmilitary persons, is unconstitutional in one case, it
equally is so in the other. I think this passes over too lightly
the awesome finality of a capital case, a factor which, in other
instances, has been reflected both in the constitutional
adjudications of this Court and in the special procedural
safeguards which have been thrown around those charged with such
crimes.
Thus, this Court has held that the Fourteenth Amendment requires
a State to appoint counsel for an indigent defendant in a capital
case,
Powell v. Alabama, 287 U. S. 45,
whereas, in noncapital cases, a defendant has no such absolute
right to counsel,
Betts v. Brady, 316 U.
S. 455. Again, the Congress, in first degree murder
cases, has, in effect, put infliction of the death penalty in the
hands of the jury, rather than the judge, 18 U.S.C. § 1111(b);
see also 60 Stat. 766, as amended, 42 U.S.C. §
2274(a),
Page 361 U. S. 256
and various States have similar statutes. [
Footnote 2/10] Further illustrations of the same
concern about capital cases are the prohibition on acceptance of
pleas of guilty in such cases, [
Footnote 2/11] and, in the appellate field, provisions
for mandatory or automatic appeals from such convictions. [
Footnote 2/12]
In my
Covert opinion, I pointed out that the Government
itself had, in effect, acknowledged that, because of the gravity of
the offense, a treason case against a nonsoldier in time of peace
could not constitutionally be held to be within the otherwise
unlimited scope of Article 2(11), and I expressed the view that the
same constitutional limitation should obtain whenever the death
penalty is involved. 354 U.S. at
354 U. S. 77. I
see no reason for retreating from that conclusion. The view that we
must hold that nonmilitary personnel abroad are subject to
peacetime court-martial jurisdiction either for all offenses or for
none at all represents an inexorable approach to constitutional
adjudication to which I cannot subscribe.
It is one thing to hold that nonmilitary personnel situated at
our foreign bases may be tried abroad by courts-martial in times of
peace for noncapital offenses, but quite another to say that they
may be so tried where life is at stake. In the latter situation, I
do not believe that the Necessary and Proper Clause, which alone in
cases like this brings the exceptional Article I jurisdiction into
play, can properly be taken as justifying the trial of nonmilitary
personnel without the full protections of an Article III court.
See 354 U.S. at
354 U. S. 77.
Before the constitutional existence of such a power can be found,
for me, a much more persuasive showing would be required that
Congress had good reason for concluding that such a course is
necessary to the proper maintenance of our military
establishment
Page 361 U. S. 257
abroad than has been made in any of the cases of this kind which
have thus far come before the Court.
Third. I revert to the Court's "status" approach to the
power of Congress to make rules for governing the armed forces. How
little of substance that view holds appears when it is pointed out
that, had those involved in these cases been inducted into the
army, though otherwise maintaining their same capacities, it would
presumably have been held that they were all fully subject to
Article 2(11). Yet, except for this formality, their real "status"
would have remained the same.
Although it was recognized in the second
Covert case
that a person might be subject to Article 2(11) "even though he had
not formally been inducted into the military or did not wear a
uniform," 354 U.S. at
354 U. S. 23, I
think that drawing a line of demarcation between those who are
constitutionally subject to the Art. I, § 8, cl. 14 power and those
who are not defies definition in terms of military "status." I
believe that the true issue on this aspect of all such cases
concerns the closeness or remoteness of the relationship between
the person affected and the military establishment. Is that
relationship close enough so that Congress may, in light of all the
factors involved, appropriately deem it "necessary" that the
military be given jurisdiction to deal with offenses committed by
such persons?
I think that such relationship here was close enough, and, in
this respect, can draw no constitutional distinction between the
army wife in No. 22 and the civilian service employees in the other
cases. Though their presence at these army overseas bases was for
different reasons and purposes, the relationship of both to the
military community was such as to render them constitutionally
amenable to the Article 2(11) jurisdiction. By the same token,
being of the view that the constitutional existence of such
jurisdiction has not been shown as to civilian
Page 361 U. S. 258
service dependents charged with capital offenses, I am equally
of the opinion that it cannot be found with respect to civilian
service employees similarly charged. For these reasons, I concur in
the judgment of the Court in No. 58.
Fourth. The other factors which must be weighed in
judging the constitutionality of Article 2(11) as applied to
noncapital cases have, in my opinion, been adequately satisfied. I
need not add to what was said in my concurring opinion in
Covert, 354 U.S. at
354 U. S. 70-73,
76-77, with reference to the matters which originally were
adumbrated by my Brother CLARK in his dissent in the same case.
Id. at
354 U. S. 83-88.
Nothing in the supplemental historical data respecting
courts-martial which have been presented in these cases persuades
me that we would be justified in holding that Congress' exercise of
its constitutional powers in this area was without a rational and
appropriate basis so far as noncapital cases are concerned.
Although it is now suggested that the problem with which Congress
sought to deal in Article 2(11) may be met in other ways, I submit
that, once it is shown that Congress' choice was not excluded by a
rational judgment concerned with the problem, it is beyond our
competence to find constitutional command for other procedures.
I think it unfortunate that this Court should have found the
Constitution lacking in enabling Congress to cope effectively with
matters which are so intertwined with broader problems that have
been engendered by present disturbed world conditions. Those
problems are fraught with many factors that this Court is ill
equipped to assess, and involve important national concerns into
which we should be reluctant to enter except under the clearest
sort of constitutional compulsion. That such compulsion is lacking
here has been amply demonstrated by the chequered history of the
past cases
Page 361 U. S. 259
of this kind in the Court. Today's decisions are the more
regrettable because they are bound to disturb delicate arrangements
with many foreign countries, and may result in our having to
relinquish to other nations where United States forces are
stationed a substantial part of the jurisdiction now retained over
American personnel under the Status of Forces Agreements.
I would reverse in Nos. 22, 21, and 58, and affirm in No.
37.
* [REPORTER'S NOTE: No. 22 is
Kinsella v. Singleton,
ante p.
361 U. S. 234; No.
21 is
McElroy v. Guagliardo, post, p.
361 U. S. 281; No.
37 is
Wilson v. Bohlender, post, p.
361 U. S. 281, and
No. 58 is
Grisham v. Hagan, post, p.
361 U. S.
278.]
[
Footnote 2/1]
To-wit:
"that part of Alaska east of longitude 172 degrees west, the
Canal Zone, the main group of the Hawaiian Islands, Puerto Rico,
and the Virgin Islands."
[
Footnote 2/2]
In No. 37, the Government, alternatively, relies on the "War
Power," the offense having been committed in the American Occupied
Zone of West Berlin.
Cf. Madsen v. Kinsella, 343 U.
S. 341. Apart from whether or not the contention is
available in light of the course of the proceedings below, I do not
reach that issue.
[
Footnote 2/3]
In addition to myself, the majority opinions, written by MR
JUSTICE CLARK, were joined by JUSTICES REED, BURTON and MINTON 351
U.S.
351 U. S. 470 and
351 U. S. 487. THE
CHIEF JUSTICE and JUSTICES BLACK and DOUGLAS dissented.
Id. at
351 U. S. 485.
MR. JUSTICE FRANKFURTER filed a Reservation.
Id. at
351 U. S.
481.
[
Footnote 2/4]
The three remaining members of the original majority were in
dissent, 352 U.S. at 902, MR. JUSTICE MINTON having meanwhile
retired. MR. JUSTICE BRENNAN, his successor, did not participate on
the motion.
[
Footnote 2/5]
THE CHIEF JUSTICE, MR. JUSTICE BLACK (the writer of the
opinion), and JUSTICES DOUGLAS and BRENNAN.
[
Footnote 2/6]
MR. JUSTICE FRANKFURTER and myself.
[
Footnote 2/7]
JUSTICES CLARK and BURTON.
[
Footnote 2/8]
MR. JUSTICE WHITTAKER, succeeding MR. JUSTICE REED who had
meanwhile retired.
[
Footnote 2/9]
The Fifth Amendment excepts from its protection "cases arising,"
not persons, "in the land or naval forces."
[
Footnote 2/10]
E.g., Mass.Gen.Laws Ann., c. 265, § 2; Miss.Code Ann.,
§ 2536; N.H.Rev.Stat.Ann., c. 585, § 4.
[
Footnote 2/11]
E.g., N.Y.Code Crim.Proc., § 332.
[
Footnote 2/12]
E.g., Cal.Penal Code, § 1239(b); Ore.Rev.Stat., §
138.810.
MR. JUSTICE WHITTAKER, with whom MR. JUSTICE STEWART joins,
concurring in part and dissenting in part.*
In No. 22, one Joanna Dial (whose cause is prosecuted here by
respondent Singleton), an American civilian wife accompanying her
husband, an American soldier serving in Germany, was there tried
and convicted in 1957 by a general court-martial for manslaughter
in violation of Article 119 of the Uniform Code of Military
Justice, [
Footnote 3/1] 10 U.S.C. §
919, and was sentenced to imprisonment for a term of three years.
In No. 21, respondent Guagliardo, an American civilian employed as
an electrical lineman by the United States Air Force at Nouasseur
Air Depot in Morocco, was there tried and convicted in 1957 by a
general court-martial for conspiring to commit larceny from the
stores of the Air Force in violation of Article 81 of the Code, 10
U.S.C. § 881, and was sentenced to imprisonment for a term of three
years. In No. 37, petitioner Wilson, an American civilian employed
as an auditor by the United States Army in Berlin, Germany, was
there tried and convicted in 1956 by a general court
Page 361 U. S. 260
martial for three acts of sodomy committed upon military
personnel in violation of Article 134 of the Code, 50 U.S.C. § 728,
and was sentenced to imprisonment for a term of five years. In No.
58, petitioner Grisham, an American civilian employed as a cost
accountant by the United States Army Corps of Engineers in Orleans,
France, was there tried by a general court-martial for the capital
offense of premeditated murder and convicted of the lesser included
offense of unpremeditated murder in violation of Article 118 of the
Code, 50 U.S.C. § 712, and was sentenced, as reduced by clemency
action of the Secretary of the Army, in 1957, to imprisonment for a
term of 35 years.
Each of the accused persons objected to trial by court-martial
upon the ground that it had no jurisdiction to try him. After their
convictions, sentences, and return to the United States, each
sought release by habeas corpus in a Federal District Court. Two
were successful -- Singleton (164 F. Supp. 707, D.C.S.D. W.Va.) and
Guagliardo (104 U.S.App.D.C. 112, 259 F.2d 927) -- but the other
two were not -- Wilson (
167 F.
Supp. 791, D.C.Colo.) and Grisham (261 F.2d 204, C.A.3d Cir.)
-- and the four cases were brought here for review.
These cases fall into three categories. No. 22, the
Singleton case, involves a civilian dependent tried for a
noncapital offense; Nos. 21 and 37, the
Gagliardo and
Wilson cases, involve civilian employees of the military
tried for noncapital offenses, and No. 58, the
Grisham
case, involves a civilian employee of the military tried for a
capital offense. Each claims that, being a civilian, he was not
constitutionally subject to trial by court-martial, but, instead,
could constitutionally be tried by the United States only in an
Article III court, upon an indictment of a grand jury under the
Fifth Amendment, and by an impartial petit jury under the Sixth
Amendment to the Constitution.
Page 361 U. S. 261
The cases present grave questions, and, for me, at least, ones
of great difficulty. Our recent decision in
Reid v.
Covert, 354 U. S. 1, makes
clear that the United States Constitution extends beyond our
territorial boundaries and reaches to and applies within all
foreign areas where jurisdiction is or may be exercised by the
United States over its citizens -- that, when the United States
proceeds against its citizens abroad "[i]t can only act in
accordance with all the limitations imposed by the Constitution."
354 U.S. at
354 U. S. 6.
The broad question presented, then, is whether our Constitution
authorizes trials and punishments by courts-martial in foreign
lands in time of peace of civilian dependents "accompanying"
members of the armed forces and of civilians "employed by" the
armed forces, for conduct made an offense by the Uniform Code of
Military Justice, whether capital or noncapital in character.
The source of the power, if it exists, is Art. I, § 8, cl. 14,
of the Constitution. [
Footnote 3/2]
It provides:
"The Congress shall have power . . ."
"To make Rules for the Government and Regulation of the land and
naval Forces."
Pursuant to that grant of power, Congress, by the Act of August
10, 1956, c. 1041, 70A Stat. 36
et seq. -- revising the
preexisting Articles of War -- enacted the Uniform
Page 361 U. S. 262
Code of Military Justice. Article 2(11) of that Code provides,
in pertinent part:
"The following persons are subject to this chapter:"
"
* * * *"
"(11) Subject to any treaty or agreement to which the United
States is or may be a party or to any accepted rule of
international law, persons serving with, employed by, or
accompanying the armed forces outside the United States. . . ."
It is not disputed that existing treaties with each of the
foreign sovereignties within whose territory the alleged offenses
occurred permitted the armed forces of the United States to punish
offenses against the laws of the United States committed by persons
embraced by Article 2(11) of the Code. Arguments challenging the
reasonableness of Article 2(11) are presently put aside, for, if
Clause 14 does not grant to Congress the power to provide for the
court-martial trial and punishment of the persons embraced in
Article 2(11) of the Code, it may not do so, however reasonable.
Reid v. Covert, supra, 354 U.S. at
354 U. S. 74
(concurring opinion).
Did Clause 14 empower Congress to enact Article 2(11) of the
Code? Certain aspects of that broad question have recently been
determined in
Reid v. Covert, supra, and, though not a
Court opinion, I consider that decision to be binding upon me.
[
Footnote 3/3] In that case, four
members of the Court held that Article 2(11) of the Code cannot
constitutionally be applied to
civilian dependents
"accompanying" members of the armed forces outside the United
States in time of peace, because, in their view, to do so would
violate Art. III, § 2, and the Fifth and Sixth
Page 361 U. S. 263
Amendments of the Constitution, and two members of the Court, in
separate concurring opinions, agreed with that result, but only
with respect to
capital offenses.
Like my Brother CLARK, who writes for the Court today, I am
unable to find any basis in the Constitution to support the view
that Congress may not constitutionally provide for the
court-martial trial and punishment of civilian dependents for
capital offenses, but may do so for noncapital ones. Certainly
there is nothing in Clause 14 that creates any such distinction or
limitation. Legalistically and logically, it would seem that the
question is one of
status of the accused person, and that
courts-martial either do or do not have jurisdiction, and, hence,
power to try the accused for all offenses against the military law
or for none at all. Sympathetic as one may be to curtailment of the
awesome power of courts-martial to impose maximum sentences in
capital cases, the question, for me at least, is the perhaps cold
but purely legal one of
constitutional power. There would
seem to be no doubt that Congress may constitutionally prescribe
gradations of offenses and punishments in military cases. The
question is solely whether Clause 14 has granted to Congress any
power to provide for the court-martial trial and punishment of
civilian dependents "accompanying," and civilians "employed by,"
the armed forces at military posts in foreign lands in time of
peace. If it has, then Congress has acted within its powers in
enacting Article 2(11) of the Code -- otherwise not. Inasmuch as
six members of the Court have held in
Covert that Congress
may not constitutionally provide for the court-martial trial and
punishment of
civilian dependents "accompanying the armed
forces" overseas in peacetime in
capital cases, and
because I can see no constitutional distinction between Congress'
power to provide for the court-martial punishment of capital
offenses, on the one hand, and noncapital offenses, on the other
hand, I conclude that the
Page 361 U. S. 264
holding in
Covert means that civilian dependents
accompanying the armed forces in peacetime are not subject to
military power, and that it requires affirmance of No. 22, the
Singleton case.
But each of the three opinions supporting the conclusion reached
in
Covert was at pains to limit the decision to
civilian dependents.
"[T]he wives, children and other dependents of servicemen cannot
be placed in that category [of being 'in' the armed services for
purposes of Clause 14], even though they may be accompanying a
serviceman abroad at Government expense and receiving other
benefits from the Government."
354 U.S. at
354 U. S. 23.
"The mere fact that these women had gone overseas with their
husbands should not reduce the protection the Constitution gives
them." 354 U.S. at
354 U. S. 33.
See also 354 U.S. at
354 U. S. 45
(concurring opinion of FRANKFURTER, J.), and 354 U.S. at
354 U. S. 75-76
(concurring opinion of HARLAN, J.). The main opinion carefully
pointed out that "Mrs. Covert and Mrs. Smith . . . had never been
employed by the army, had never served in the army in any
capacity." 354 U.S. at
354 U. S. 32.
(Emphasis added.)
There is a marked and clear difference between civilian
dependents "accompanying the armed forces" and civilian persons
"serving with [or] employed by" the armed forces at military posts
in foreign lands. The latter, numbering more than 25,000 employed
at United States military bases located in 63 countries throughout
the world -- mainly highly trained specialists and technicians
possessing skills not readily available to the armed forces -- are
engaged in purely military work -- as in the case of Guagliardo,
employed as an electrical lineman by the Air Force to construct and
maintain lines of communication and airfield lighting apparatus and
equipment, as also in the case of Wilson, an auditor employed to
audit the accounts of the United States Army in Berlin, and as
in
Page 361 U. S. 265
the case of Grisham, employed as a cost accountant by the United
States Army Corps of Engineers to assist in setting up a cost
accounting system for the building of a line of communications from
Pardeau, France, to Kossalater in the American-occupied section of
Germany. These civilian employees thus perform essential services
for the military and, in doing so, are subject to the orders,
direction and control of the same military command as the "members"
of those forces; and, not infrequently, members of those forces who
are assigned to work with and assist those employees are subject to
their direction and control. They have the same contact with, and
information concerning, the military operations as members of those
forces and present the same security risks and disciplinary
problems. They are paid from the same payroll, and have the same
commissary, housing, medical, dental, mailing, transportation,
banking, tax exemption, customs, border-crossing and other
privileges as members of the armed forces. They are so intertwined
with those forces and military communities as to be, in every
practical sense, an integral part of them. On the other hand
civilian dependents "accompanying the armed forces" perform no
services for those forces, present dissimilar security and
disciplinary problems, have only a few of the military privileges,
and generally stand in a very different relationship to those
forces than the civilian employees. Nor should there be any
confusion about the fact that the materials found in
Covert to be
"too episodic, too meager, to form a solid basis in history,
preceding and contemporaneous with the framing of the Constitution,
for constitutional adjudication"
(354 U.S. at
354 U. S. 64,
concurring opinion), related, as did the whole case, to "civilian
dependents in particular,"
ibid., not to persons employed
at foreign military bases to do essential military work. And I
readily agree with the Court today that, under the
Page 361 U. S. 266
severability clause in the Code, 70A Stat. 640, " . . . legal
effect can be given to each category standing alone."
McElroy
v. Guagliardo, post, p.
361 U. S. 281.
Determination of the scope of the powers intended by the Framers
of the Constitution to be given to Congress by Clause 14 requires
an examination into the customs, practices, and general political
climate known to the Framers and existing at that time. The first
Articles of War in this country were those adopted by the
Provisional Congress of Massachusetts Bay on April 5, 1775.
[
Footnote 3/4] Those Articles,
initially governing the "civilian" army of farmers and tradesmen --
the minutemen -- who were first involved in the War of the
Revolution, were made applicable to "all Officers, Soldiers, and
others concerned." Winthrop (Reprint 1920) 947. Article 31
provided:
"All sellers and retailers to a camp, and all persons whatsoever
serving with the Massachusetts Army in the field, though not
enlisted Soldiers, are to be subject to the Articles, Rules and
Regulations of the Massachusetts Army."
Id. at 950.
The American Revolutionary Army initially was governed by
"Articles of War" adopted by the Continental Congress on June 30,
1775. [
Footnote 3/5] Nine of the
original 69 Articles provided for the trial by court-martial of
persons serving with the army, but who were not soldiers. Those
Articles were revised by the Continental Congress on September 20,
1776, [
Footnote 3/6] and, save for
minor revisions not here pertinent, governed the Revolutionary Army
during the remainder of the war. [
Footnote 3/7] Thirteen of those Articles
Page 361 U. S. 267
provided for the trial by court-martial of civilians serving
with the army, such as "commissaries," [
Footnote 3/8] "suttlers," [
Footnote 3/9] "store-keepers," [
Footnote 3/10] persons "belonging to the forces
employed in the service of the United States," [
Footnote 3/11] and persons "belonging to the
forces of the United States, employed in foreign parts." [
Footnote 3/12] In 1778, a relevant
addition was made. It provided, in pertinent part:
"That every person employed either as Commissary, Quarter
Master, forage Master,
or in any other Civil Department of the
Army shall be subject to trial by Court Martial for neglect of
duty, or other offence committed in the execution of their office.
. . ."
Journals of the Continental Congress, Vol. X, p. 72. (Emphasis
added.) Wagon drivers "receiving pay or hire" in the service of the
artillery were made subject to court-martial jurisdiction under the
American Articles of 1775 [
Footnote
3/13] and 1776. [
Footnote
3/14] Throughout the Revolutionary period, "drivers" and
"artillery gunners" were civilian experts. "Horses or oxen, with
hired civilian drivers, formed the transport" for the cannon.
Manucy, Artillery Through The Ages (GPO 1949), p. 10. Their
civilian status in Washington's army is concretely shown by his
writings. [
Footnote 3/15]
Page 361 U. S. 268
There was a protracted controversy in the Constitutional
Convention over whether there should be a standing army or whether
the militia of the various States should be the source of military
power. [
Footnote 3/16] There was,
on the one hand, fear that a standing army might be detrimental to
liberty; on the other was the necessity of an army for the
preservation of peace and defense of the country. [
Footnote 3/17] The problem of providing for
essential forces and also of assuring enforcement of the unanimous
determination to keep them in subjection to the civil power was
resolved by inserting the provision that no appropriation for the
support of the army could be made for a longer period than two
years (Art. I, § 8, cl. 12), and by the continuance of the militia
"according to the discipline prescribed by Congress." (Art. I, § 8,
cls. 15 and 16, and Amend. II.) [
Footnote 3/18]
Page 361 U. S. 269
It was in the light of this background and upon these
considerations that the Framers gave to the representatives of the
people -- the Congress -- the power "To make Rules for the
Government and Regulation of the land and naval Forces." Clause 14.
That language was taken straight from the Articles of
Confederation. [
Footnote 3/19] In
respect thereto, Hamilton said in Beloff, The Federalist, No.
XXIII, p. 111:
"These powers ought to exist without limitation, because it is
impossible to foresee or to define the extent and variety of
national exigencies, and the correspondent extent and variety of
the means which may be necessary to satisfy them. . . . [
Footnote 3/20]"
Soon after the formation of the Government under the
Constitution, Congress, by the Act of September 29, 1789, c. 25, §
4, 1 Stat. 96, adopted the Articles of War, which were essentially
the Articles of 1776. By that Act, Congress -- it is almost
necessary to assume -- approved the consistent practice of
exercising military jurisdiction over civilians serving with the
armed forces, although not actually soldiers. The first complete
enactment of the Articles of War subsequent to the adoption of the
Constitution was the Act of April 10, 1806. Article 60 of that Act
(2 Stat. 366) reenacted the provisions for jurisdiction
Page 361 U. S. 270
over suttlers, retainers, and "all persons whomsoever, serving
with the armies of the United States in the field, though not
enlisted soldiers." Provisions similar to Article 60 have been made
in all subsequent reenactments of the Military Code: in the
revision of 1874, Rev.Stat. (2d ed. 1878), p. 236 (Article 63); in
1916, 39 Stat. 651; in 1920, 41 Stat. 787, and in the adoption of
the Uniform Code of Military Justice, 64 Stat. 109, codified in 70A
Stat. 37, 10 U.S.C. § 802(11).
In the 1916 general revision of the Articles of War, Congress
used language which is substantially equivalent to that of Article
2(11), [
Footnote 3/21] and it
appears it did not consider that any new concept was being adopted.
[
Footnote 3/22] After full
consideration by an eminent committee of experts, Congress, in 1956
-- recognizing that, although we are not at war, turbulent world
conditions require large military commitments throughout the world
-- reenacted, in Article 2(11), the provision that civilians
"serving with" the armies of the United States "outside the
United
Page 361 U. S. 271
States" are subject to military jurisdiction, and it redefined
that concept by adding the "employed by" classification.
Clause 14 does not limit Congress to the making of rules for the
government and regulation of "members" of the armed forces. Rather,
it empowers Congress to make rules for the government and
regulation of "the land and naval Forces." The term "land and naval
Forces" does not appear to be, nor ever to have been treated as,
synonymous with "members" of the armed services. [
Footnote 3/23]
Viewed in the light of its birth and history, is it not
reasonably clear that the grant of Clause 14, to make rules for the
government and regulation of the land and naval forces, empowers
Congress to govern and regulate all persons so closely related to
and intertwined with those forces as to make their government
essential to the government of those forces? Do not civilians
employed by the armed forces at bases in foreign lands to do
essential work for the military establishment, such as was being
done by respondent Guagliardo and petitioners Wilson and Grisham,
occupy that status and stand in that relationship to the armed
forces for which they worked?
This Court has consistently held, in various contexts, that
Clause 14 does not limit the power of Congress to the government
and regulation of only those persons who are "members" of the armed
services. In
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 123, it
was said, relative to the discipline necessary to the efficient
operation of the army and navy, that
"Everyone connected with these branches of the public service is
amenable to the jurisdiction which Congress has created for their
government, and, while thus serving, surrenders his right to be
tried by the civil courts."
In Duncan v. Kahanamoku, 327 U.
S. 304,
327 U. S. 313,
this Court recognized the "well established power of the military
to
Page 361 U. S. 272
exercise jurisdiction over members of the armed forces [and]
those directly connected with such forces. . . ."
(Emphasis added.) In
Toth v. Quarles, 350 U. S.
11,
350 U. S. 15,
this Court said that Clause 14 "would seem to restrict
court-martial jurisdiction to persons who are actually members
or part of the armed forces." ( Emphasis added.) Of even
greater relevance, the main opinion in
Covert, although
expressing the view that Clause 14 authorized military trials only
of persons "in" the armed forces, recognized
"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."
354 U.S. at
354 U. S. 23. To
repeat the query of this Court, made under very similar
circumstances in
Ex parte Reed, 100 U. S.
13,
100 U. S. 22,
"If these [civilian employees] are not
in the [armed]
service, it may well be asked who are." (Emphasis added.) That case
held that a civilian, employed to serve aboard ship as the clerk of
a paymaster of the United States Navy and who was dismissable at
the will of the commander of the ship, occupied such
"an important [place] in the machinery of the navy . . . [that]
[t]he good order and efficiency of the service depend [ed] largely
upon the faithful performance of [his] duties,"
and brought him "in the naval service," so that he was subject
to trial and punishment by court-martial for an offense committed
in a Brazilian port. 100 U.S. at
100 U. S. 21-22.
Johnson v. Sayre, 158 U. S. 109,
reaffirmed the principle on practically identical facts.
The provisions of Art. III, 2, and the Fifth and Sixth
Amendments of the Constitution, requiring the trial of capital or
otherwise infamous crimes in an Article III court, upon an
indictment of a grand jury, by an impartial petit jury, are not
applicable to "cases arising in the land or naval forces." The
Fifth Amendment expressly excepts those cases. It cannot be said
that the
"words
Page 361 U. S. 273
in the Fifth Amendment relating to the mode of accusation
restrict the jurisdiction of courts martial in the regular land and
naval forces."
Johnson v. Sayre, supra, 158 U.S. at
158 U. S. 115.
The exception in the Fifth Amendment
"was undoubtedly designed to correlate with the power granted
Congress to provide for the 'Government and Regulation' of the
armed services. . . ."
(
Reid v. Covert, supra, at
354 U. S. 22),
and so was the jury trial provision of the Sixth Amendment, for
"the framers of the Constitution doubtless meant to limit the
right of trial by jury in the Sixth Amendment to those persons who
were subject to indictment or presentment in the Fifth."
Ex parte Milligan, supra, 4 Wall. at
71 U. S. 123.
See also Ex parte Quirin, 317 U. S.
1,
317 U. S. 40. The
power conferred upon Congress by Clause 14 to provide for
court-martial trials of offenses arising in the land and naval
forces is independent of, and not restricted by, Article III or the
Fifth and Sixth Amendments to the Constitution.
Counsel for the convicted employees argue, with the citation and
force of much history, that, even if civilians "serving with [or]
employed by" the armed forces are subject to the military power of
courts-martial, such could be so only in respect of offenses
committed while those forces are "in the field." Some of the early
Articles of War limited military jurisdiction over certain civilian
employees to the period when the army was "in the field." [
Footnote 3/24] What is really meant by
the term "in the
Page 361 U. S. 24
field"? Seemingly, it does not mean "in actual war," or even "in
time of war."
"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.'"
Reid v. Covert, supra, 354 U.S. at
354 U. S. 71, n.
8 (concurring opinion). Historically, the term has been thought to
include armed forces located at points where the civil power of the
Government did not extend. or where its civil courts did not exist.
Prior to the Civil War, a number of civilians employed by the armed
forces were tried and punished by courts-martial in time of peace.
[
Footnote 3/25] In 1814, the
Attorney General expressed the opinion that civilian employees of
the navy were subject to punishment by court-martial for offenses
committed on board vessels beyond the territorial jurisdiction of
our civil courts. 1 Op.Atty.Gen. 177. The term "in the field" was
thought to apply to organized camps stationed in remote places
where civil courts did not exist or were not functioning. In 1866,
the Judge Advocate General of the Army so declared. [
Footnote 3/26] But, thereafter, Winthrop
expressed
Page 361 U. S. 275
the view that the term "in the field" is to be "confined both to
the period and pendency of war and to acts committed on the theatre
of the war." [
Footnote 3/27] This
would seem to ignore the fact that the constitutional authority
involved is Clause 14, not the war power, and that the Clause 14
powers apply to times of both peace and war. Moreover, even at the
time when Winthrop wrote, there was no consensus of interpretation
supporting his view. In 1872, the Attorney General issued an
opinion which concluded that civilians serving with troops in
Kansas, Colorado, New Mexico, and the Indian Territory (where civil
courts did not exist or were not functioning) in the building of
defensive earthworks to protect against threatening Indians were
"in the field." 14 Op.Atty.Gen. 22. [
Footnote 3/28] As earlier observed, this Court held, in
1879, in
Ex parte Reed, supra, and again in 1895, in
Johnson v. Sayre, supra, that the civilian clerk of a
paymaster of the navy might be tried and punished by a
court-martial for a military offense committed in peacetime aboard
ship in a foreign port.
Doubtless, with the passing of the frontier and the extension of
civil courts throughout the territorial boundaries
Page 361 U. S. 276
of the United States, detachments of troops stationed within our
borders may, not in time of peace, be regarded as "in the field."
But it seems to me that armed forces of the United States stationed
at bases in foreign lands -- where jurisdiction of our civil courts
does not extend -- must, under turbulent world conditions, be
otherwise regarded. Because of long existing world tensions and
with the fervent hope of preventing worse, the United States
Government has stationed armed forces at military bases in 63
foreign lands throughout the world. We are told that they must be
kept constantly alert and ready to prevent or, if and when they
arise, to put down "brush fires" which if allowed to spread might
ignite a worldwide holocaust of atomic war. Because of physical
necessities, such a war, like the frequently recurring "brush
fires," could be suppressed, if at all, mainly from those bases.
The forces at those bases are as much "in the field" in the one
case as in the other. Though there be no war in the technical
sense, those forces, while so engaged in foreign lands -- where our
civil courts do not exist -- are in every practical sense "in the
field." They are as clearly "in the field" as were American
soldiers while building fortifications to protect against
threatening Indians in New Mexico and the Indian Territory, where
our civil courts did not exist, in the days of the frontier. Op.
J.A.G. of the Army, Nov. 15, 1866, 23 Letters sent, 331 (National
Archives)
and see 361
U.S. 234fn3/26|>note 26; 14 Op.Atty.Gen. 22,
and
see 361
U.S. 234fn3/28|>note 28.
Clause 14 empowers Congress to "make Rules" -- all necessary and
proper rules -- "for the Government and Regulation of the land and
naval Forces" -- not just for "members" of those forces, but the
"Forces," and not only in time of war, but in times of both peace
and war. In the exercise of that granted power, Congress has
promulgated rules, the Uniform Code of Military Justice, for the
government of the "armed forces" and, to that end, has
Page 361 U. S. 277
deemed it necessary, as witness Article 2(11), to include
persons "employed by" those forces when "outside the United States"
-- where our civil courts have no jurisdiction and do not exist --
in times of both peace and war. In the light of all the facts, it
would seem clear enough that Congress could rationally find that
those persons are "in" those forces, and, though there be no
shooting war, that those forces, in turn, are "in the field," and
hence Congress could and did constitutionally make those employees
subject to the military power. Both the practical necessities and
the lack of alternatives, so clearly demonstrated by MR. JUSTICE
CLARK in the
Covert case, 354 U.S. at
354 U. S. 78
(dissenting opinion), strongly buttress this conclusion, if indeed
it could otherwise be doubted.
For these reasons, I would affirm No. 22, the
Singleton
case; reverse No. 21, the
Guagliardo case, and affirm Nos.
37 and 58, the
Wilson and
Grisham cases.
* [REPORTER'S NOTE: This opinion applies also to No. 58,
Grisham v. Hagan, post, p.
361 U. S. 278; No.
21,
McElroy v. Guagliardo, post, p.
361 U. S. 281, and
No. 37,
Wilson v. Bohlender, post, p.
361 U. S.
281.]
[
Footnote 3/1]
The Uniform Code of Military Justice, 70A Stat. 36
et
seq., will hereafter, for brevity, be called the "Code."
[
Footnote 3/2]
This does not overlook the "Necessary and Proper" Clause, Art.
I, § 8, cl. 18, of the Constitution, but, in my view, that Clause,
though applicable, adds nothing to Clause 14, because the latter
Clause, empowering Congress "To make Rules for the Government and
Regulation of the land and naval Forces," plainly means
all
necessary and proper rules for those purposes.
MR JUSTICE STEWART is of the view that Clause 14 must be read in
connection with the "Necessary and Proper" Clause, and agrees with
the views expressed in MR. JUSTICE HARLAN's separate opinion as to
the applicability and effect of that clause.
[
Footnote 3/3]
Although a member of the Court when the opinions in the
Covert case were handed down, I was ineligible to, and did
not, participate in the decision of that case, because it had been
argued, submitted and decided prior to my coming to the Court.
[
Footnote 3/4]
Winthrop, Military Law and Precedents (Reprint 1920), 947.
[
Footnote 3/5]
Journals of the Continental Congress, Vol. II, p. 111. Those
Articles, with additional Articles enacted November 7, 1775, are
reprinted in Winthrop 953
et seq.
[
Footnote 3/6]
Those Articles are reprinted in Winthrop 961-971.
[
Footnote 3/7]
The Articles were prepared principally by John Adams.
See John Adams, Works, Vol. 3, pp. 83-84; Winthrop 22.
[
Footnote 3/8]
Articles of War, Sept. 20, 1776, § IV, Art. 6.
[
Footnote 3/9]
Id., § VIII, Art. 1.
[
Footnote 3/10]
Id., § XII, Art. 1.
[
Footnote 3/11]
Id., § XIII, Art. 9.
[
Footnote 3/12]
Id., § XIII, Art. 17.
[
Footnote 3/13]
Articles of War, June 30, 1775, Art. XLVIII; Winthrop 957.
[
Footnote 3/14]
Articles of War, Sept. 20, 1776, § XVI, Art. I; Winthrop
970.
[
Footnote 3/15]
See the report which Washington made to the Committee
of Congress With The Army, on January 29, 1778:
"
As it does not require military men to discharge the
duties of Commissaries, Forage Masters and Waggon Masters, who are
also looked upon as the money-making part of the army, no rank
should be allowed to any of them,
nor indeed to any in the
departments merely of a civil nature. Neither is it, in my
opinion proper, though it may seem a trivial and inconsequential
circumstance that they should wear the established uniforms of the
army, which ought to be considered as a badge of military
distinction."
Writings of Washington, Vol. 10, at 379. (Emphasis added.)
Numerous instances of the exercise of military jurisdiction over
civilians serving with the army are detailed in Washington's
Writings. A "Wagon Master" was so tried and acquitted on January
22, 1778. (Vol. 10, p. 359.) A "waggoner" was so tried and
sentenced on May 25, 1778 (Vol. 11, p. 487), and another on
September 2, 1780. At the same time, an "express rider" was so
tried and convicted. (Vol. 20, pp. 24-25.) On September 21, 1779, a
"Commissary of Issues" and a "Commissary of Hides" were tried by
court-martial. (Vol. 16, pp. 385-386.) On September 23, 1780,
another "waggoner" was so tried and acquitted. (Vol. 20, pp.
96-97.) On December 6 and 16, 1780, another "commissary" and also a
"barrack master" were so tried. (Vol. 21, p. 10, and pp 22-23.)
Numerous other court-martial trials of civilians serving with the
army are recited in Vol. 10, p. 507; Vol. 12, p. 242; Vol. 13, pp
54, 314; Vol. 21, p. 190.
[
Footnote 3/16]
Prescott, Drafting the Federal Constitution (1941), pp. 515-525;
5 Elliot's Debates 443-445.
[
Footnote 3/17]
Glenn and Schiller, The Army and the Law, pp. 14, 18-20.
[
Footnote 3/18]
The basis of this conclusion was summarized by James Madison in
Beloff, The Federalist, No. XLI, P 207:
"Next to the effectual establishment of the union, the best
possible precaution against danger from standing armies, is a
limitation of the term for which revenue may be appropriated to
their support. This precaution the Constitution has prudently
added. . . ."
[
Footnote 3/19]
Prescott, Drafting the Federal Constitution (1941), p. 526; 5
Elliot's Debates 443.
[
Footnote 3/20]
Hamilton, aide-de-camp to Washington and a distinguished army
officer, undoubtedly knew that civilians serving with the army were
commonly subjected to court-martial jurisdiction. The same must be
presumed to have been known by most, if not all, of the members of
the Constitutional Convention, for so many of them had been a part
of the Revolutionary Army, wherein that practice was
commonplace.
[
Footnote 3/21]
Article 2(d) of the 1916 Articles provided that the following
persons should be subject to the Articles of War:
"(d) All retainers to the camp and all persons accompanying or
serving with the armies of the United States without the
territorial jurisdiction of the United States, and, in time of war,
all such retainers and persons accompanying or serving with the
armies of the United States in the field, both within and without
the territorial jurisdiction of the United States, though not
otherwise subject to these articles."
This section was reenacted in 1920, 41 Stat. 787.
[
Footnote 3/22]
General Enoch H. Crowder, then Judge Advocate General of the
Army, stated before the House Committee on Military Affairs:
"There is nothing new in the article in subjecting these several
classes to the provisions of article 65. It is a jurisdiction which
has always been exercised. When any person joins an army in the
field and subjects himself by that act to the discipline of the
camp, he acquires the capacity to imperil the safety of the command
to the same degree as a man under the obligation of an enlistment
contract or of a commission."
Hearings on H.R. 23628, 62d Cong., 2d Sess., p. 61.
[
Footnote 3/23]
See Cong.Globe, 37th Cong., 3d Sess., 996
et
seq.
[
Footnote 3/24]
Article XXXII of American Articles of War of 1775, 2
J.Cont.Cong. 111, provided that "All suttlers and retailers to a
camp, and all persons whatsoever, serving with the continental army
in the field . . . " were subject to court-martial
jurisdiction.
Article 60 of the American Articles of War of 1806, 2 Stat. 359,
366, provided that "All suttlers and retainers to the camp, and all
persons whatsoever, serving with the armies of the United States in
the field . . . " were subject to court-martial jurisdiction.
Article 63 of American Articles of War of 1874, R.S. § 1342,
provided that "All retainers to the camp, and all persons serving
with the armies of the United States in the field . . . " were
within the jurisdiction of courts-martial.
[
Footnote 3/25]
At Ft. Monroe, Va., in 1825; Ft. Washington, Md., in 1825; Ft.
Gibson, in what is now Oklahoma, in 1833; Ft. Brooke, Fla., in
1838; Camp Scott, Utah Territory, in 1858; Ft. Bridger, Utah
Territory, in 1858.
[
Footnote 3/26]
On November 15, 1866, the Judge Advocate General of the Army
formulated the following opinion and direction:
"It is held by this Bureau, and has been the general usage of
the service in times of peace, that a detachment of troops is an
army 'in the field' when on the march or at a post remote from
civil jurisdiction."
"It has been the custom, and is held to be advisable, that civil
employees, suttlers, and camp followers, when guilty of crimes
known to the civil law, to turn the parties over to the courts of
the vicinity in which the crimes were committed. For minor offenses
against good orders and discipline, it has been customary to expel
the parties from the Army; if, however, it is sought to punish
civil employees in New Mexico for crimes committed at a post where
there are no civil courts before which they can be tried, it is
held that they can be brought to trial before a General Court
Martial, as they must be considered as serving with 'an army in the
field' and, therefore, within the provision of the 60th Article of
War."
Op. J. A.G. of the Army, Nov. 15, 1866, 23 Letters sent, 331
(National Archives).
[
Footnote 3/27]
Winthrop, Military Law and Precedents, 101.
[
Footnote 3/28]
The opinion rested primarily on the ground that the term "in the
field" implies military operations with a view to an enemy, and
that an army was "in the field" when "engaged in offensive or
defensive operations." It also noted, p. 24, that:
"Possibly the fact that troops are found in a region of country
chiefly inhabited by Indians, and remote from the exercise of civil
authority, may enter into the description of 'an army in the
field.'"