Five months after he had been honorably discharged from the
United States Air Force and had returned to his home and was
privately employed, an ex-serviceman was arrested by military
authorities on charges of murder and conspiracy to commit murder
while he was an airman in Korea. When arrested, he had no
relationship of any kind with the military. Under authority of Art.
3(a) of the Uniform Code of Military Justice, he was taken to Korea
to stand trial before a court-martial.
Held: He could not constitutionally be subjected to
trial by court-martial. Pp.
350 U. S.
13-23.
1. The Act cannot be sustained as an appropriate exercise of the
constitutional power of Congress "To raise and support Armies," "To
declare War," or to punish "Offences against the Law of Nations."
Pp.
350 U. S.
13-14.
2. This assertion of military authority over civilians cannot
rest on the President's power as Commander-in-Chief, nor on any
theory of martial law. P.
350 U. S.
14.
3. The Fifth Amendment does not grant court-martial power to
Congress; it merely makes clear that there need be no indictment
for such military offenses as Congress can authorize military
tribunals to try under its Article I power to make rules to govern
the armed forces. P.
350 U. S. 14, n.
5.
4. The Act is not a valid exercise of the power granted Congress
in Article I of the Constitution "To make Rules for the Government
and Regulation of the land and naval Forces," as supplemented by
the Necessary and Proper Clause. Pp.
350 U. S.
14-23.
(a) The power granted Congress "To make Rules" to regulate "the
land and naval Forces" is to be construed as restricting
court-martial jurisdiction to persons who have a relationship with
the armed forces. P.
350 U. S.
15.
(b) This construction is required by the fact that any such
expansion of court-martial jurisdiction as the Act provides
necessarily
Page 350 U. S. 12
encroaches on the jurisdiction of federal courts set up under
Article III of the Constitution, where persons on trial are
surrounded with more constitutional safeguards than in military
tribunals. Pp.
350 U. S.
15-20.
(c) It is within the constitutional power of Congress to provide
for federal district court trials of discharged soldiers accused of
offenses committed while in the armed services. Pp.
350 U. S.
20-21.
(d) The constitutional grant of power to Congress to regulate
the armed forces does not empower Congress to deprive civilians of
trials under Bill of Rights safeguards, and power to circumvent
those safeguards is not to be inferred from the Necessary and
Proper Clause. Pp.
350 U. S.
21-22.
(e) A different result than that here reached is not required by
the fact that some other countries which do not have our Bill of
Rights subject civilians who were once soldiers to trials by
court-martial, rather than to trials by civilian courts. P.
350 U. S.
22.
(f) Considerations of discipline in the armed forces do not
warrant expansion of court-martial jurisdiction at the expense of
the normal and constitutionally preferable system of trial by jury.
Pp.
350 U. S.
22-23.
(g) Ex-servicemen, like other civilians, are entitled to have
the benefit of safeguards afforded those tried in the regular
courts authorized by Article III of the Constitution. P.
350 U. S.
23.
94 U.S.App.D.C. 28, 215 F.2d 22, reversed.
Page 350 U. S. 13
MR. JUSTICE BLACK delivered the opinion of the Court.
After serving with the United States Air Force in Korea, Robert
W. Toth was honorably discharged. He returned to his home in
Pittsburgh and went o work in a steel plant. Five months later, he
was arrested by military authorities on charges of murder and
conspiracy to commit murder while an airman in Korea. [
Footnote 1] At the time of arrest, he
had no relationship of any kind with the military. He was taken to
Korea to stand trial before a court-martial under authority of a
1950 Act of Congress. [
Footnote
2] The Court of Appeals sustained the Act, rejecting the
contention that civilian ex-servicemen like Toth could not
constitutionally be subjected to trial by court-martial. 94
U.S.App.D.C. 28, 215 F.2d 22. We granted certiorari to pass upon
this important constitutional question. 348 U.S. 809. [
Footnote 3]
The 1950 Act cannot be sustained on the constitutional power of
Congress "To raise and support Armies," "To declare War," or to
punish "Offences against the Law of
Page 350 U. S. 14
Nations." [
Footnote 4] And
this assertion of military authority over civilians cannot rest on
the President's power as commander-in-chief, or on any theory of
martial law.
See Ex parte
Milligan, 4 Wall. 2,
71 U. S. 124-127.
The Government's contention is that the Act is a valid exercise of
the power granted Congress in Article I of the Constitution "To
make Rules for the Government and Regulation of the land and naval
Forces," as supplemented by the Necessary and Proper Clause.
[
Footnote 5]
This Court has held that the Article I clause just quoted
authorizes Congress to subject persons actually in the armed
service to trial by court-martial for military and naval offenses.
[
Footnote 6] Later it was held
that court-martial jurisdiction could be exerted over a
dishonorably discharged soldier then a military prisoner serving a
sentence imposed by a prior court-martial. [
Footnote 7] It has never been intimated by this Court,
however, that Article I military jurisdiction could be extended to
civilian ex-soldiers who had severed all relationship with the
military and its institutions. [
Footnote 8] To allow this extension of military
Page 350 U. S. 15
authority would require an extremely broad construction of the
language used in the constitutional provision relied on. For, given
its natural meaning, 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. There is a compelling reason for
construing the clause this way: any expansion of court-martial
jurisdiction like that in the 1950 Act necessarily encroaches on
the jurisdiction of federal courts set up under Article III of the
Constitution, where persons on trial are surrounded with more
constitutional safeguards than in military tribunals.
Article III provides for the establishment of a court system as
one of the separate but coordinate branches of the National
Government. It is the primary, indeed the sole, business of these
courts to try cases and controversies between individuals and
between individuals and the Government. This includes trial of
criminal cases.
Page 350 U. S. 16
These courts are presided over by judges appointed for life,
subject only to removal by impeachment. Their compensation cannot
be diminished during their continuance in office. The provisions of
Article III were designed to give judges maximum freedom from
possible coercion or influence by the executive or legislative
branches of the Government. But the Constitution and the Amendments
in the Bill of Rights show that the Founders were not satisfied
with leaving determination of guilt or innocence to judges, even
though wholly independent. They further provided that no person
should be held to answer in those courts for capital or other
infamous crimes unless on the presentment or indictment of a grand
jury drawn from the body of the people. Other safeguards designed
to protect defendants against oppressive governmental practices
were included. One of these was considered so important to liberty
of the individual that it appears in two parts of the Constitution.
Article III, § 2, commands 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."
And the Sixth Amendment provides that,
"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. . . ."
This right of trial by jury ranks very high in our catalogue of
constitutional safeguards. [
Footnote 9]
Page 350 U. S. 17
We find nothing in the history or constitutional treatment of
military tribunals which entitles them to rank along with Article
III courts as adjudicators of the guilt or innocence of people
charged with offenses for which they can be deprived of their life,
liberty or property. Unlike courts, it is the primary business of
armies and navies to fight or be ready to fight wars should the
occasion arise. But trial of soldiers to maintain discipline is
merely incidental to an army's primary fighting function. To the
extent that those responsible for performance of this primary
function are diverted from it by the necessity of trying cases, the
basic fighting purpose of armies is not served. And conceding to
military personnel that high degree of honesty and sense of justice
which nearly all of them undoubtedly have, 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. For instance, the
Constitution does not provide life tenure for those performing
judicial functions in military trials. They are appointed by
military commanders, and may be removed at will. Nor does the
Constitution protect their salaries, as it does judicial salaries.
Strides have been made toward making courts-martial less subject to
the will of the executive department which appoints, supervises and
ultimately controls them. But, from the very nature of things,
courts have more independence in passing on the life and liberty of
people than do military tribunals.
Moreover, there is a great difference between trial by jury and
trial by selected members of the military forces.
Page 350 U. S. 18
It is true that military personnel, because of their training
and experience, may be especially competent to try soldiers for
infractions of military rules. Such training is no doubt
particularly important where an offense charged against a soldier
is purely military, such as disobedience of an order, leaving post
etc. But whether right or wrong, the premise underlying the
constitutional method for determining guilt or innocence in federal
courts is that laymen are better than specialists to perform this
task. This idea is inherent in the institution of trial by
jury.
Juries fairly chosen from different walks of life bring into the
jury box a variety of different experiences, feelings, intuitions
and habits. [
Footnote 10]
Such juries may reach completely different conclusions than would
be reached by specialists in any single field, including
specialists in the military field. [
Footnote 11] On many occasions, fully known to the
Founders of this country, jurors -- plain people -- have manfully
stood up in defense of liberty
Page 350 U. S. 19
against the importunities of judges and despite prevailing
hysteria and prejudices. [
Footnote 12] The acquittal of William Penn is an
illustrious example. [
Footnote
13] Unfortunately, instances could also be cited where jurors
have themselves betrayed the cause of justice by verdicts based on
prejudice or pressures. In such circumstances, independent trial
judges and independent appellate judges have a most important place
under our constitutional plan, since they have power to set aside
convictions. [
Footnote
14]
The 1950 Act here considered deprives of jury trial and sweeps
under military jurisdiction over 3,000,000 persons who have become
veterans since the Act became effective. That number is bound to
grow from year to year; there are now more than 3,000,000 men and
women in uniform. [
Footnote
15] These figures point up what would be the enormous scope of
a holding that Congress could subject every ex-serviceman and woman
in the land to trial by court-martial for any alleged offense
committed while he or she had been a member of the armed forces.
Every veteran discharged since passage of the 1950 Act is subject
to military trial for any offense punishable by as much as five
years' imprisonment unless the offense is now punishable in a
civilian court. And one need only glance at the Military Code to
see what a vast number and variety of offenses are thus brought
under
Page 350 U. S. 20
military jurisdiction. [
Footnote 16] Included within these are crimes such as
murder, conspiracy, absence without leave, contempt toward
officials, disrespect toward superior officers, willful or
neglectful loss, damage, or destruction of government property,
making false official statements, dueling, breach of the peace,
forgery, fraud, assault, and many others. [
Footnote 17] It is true that, with reference to
some of these offenses, very minor ones, veterans cannot now be
tried because of a presidential order fixing the punishment for
such offenses at less than five years. [
Footnote 18] But that amelioration of the Military
Code may be temporary, since punishment can be raised or lowered at
the will of the President. It is also true that, under the present
law, courts-martial have jurisdiction only if no civilian court
does. But that might also be changed by Congress. Thus, there is no
justification for treating the Act as a mere minor increase of
congressional power to expand military jurisdiction. It is a great
change, both actually and potentially.
Fear has been expressed that, if this law is not sustained,
discharged soldiers may escape punishment altogether for crimes
they commit while in the service. But that fear
Page 350 U. S. 21
is not warranted, and was not shared by the Judge Advocate
General of the Army, who made a strong statement against passage of
the law. [
Footnote 19] He
asked Congress to
"confer jurisdiction upon Federal courts to try any person for
an offense denounced by the [military] code if he is no longer
subject thereto. This would be consistent with the fifth amendment
of the Constitution."
The Judge Advocate General went on to tell Congress that,
"If you expressly confer jurisdiction on the Federal courts to
try such cases, you preserve the constitutional separation of
military and civil courts, you save the military from a lot of
unmerited grief, and you provide for a clean, constitutional method
for disposing of such cases."
It is conceded that it was wholly within the constitutional
power of Congress to follow this suggestion and provide for federal
district court trials of discharged soldiers accused of offenses
committed while in the armed services. This concession is
justified. U.S.Const., Art. III, § 2,
and see, e.g., Jones v.
United States, 137 U. S. 202,
137 U. S.
211-212;
United States v. Bowman, 260 U. S.
94,
260 U. S. 97-98;
Skiriotes v. Florida, 313 U. S. 69,
313 U. S. 73-74.
There can be no valid argument, therefore, that civilian
ex-servicemen must be tried by court-martial or not tried at all.
If that is so, it is only because Congress has not seen fit to
subject them to trial in federal district courts.
None of the other reasons suggested by the Government is
sufficient to justify a broad construction of the constitutional
grant of power to Congress to regulate the armed forces. That
provision itself does not empower Congress
Page 350 U. S. 22
to deprive people of trials under Bill of Rights safeguards, and
we are not willing to hold that power to circumvent those
safeguards should be inferred through the Necessary and Proper
Clause. 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. And we are
not impressed by the fact that some other countries which do not
have our Bill of Rights indulge in the practice of subjecting
civilians who were once soldiers to trials by courts-martial
instead of trials by civilian courts. [
Footnote 20]
There are dangers lurking in military trials which were sought
to be avoided by the Bill of Rights and Article III of our
Constitution. Free countries of the world have tried to restrict
military tribunals to the narrowest jurisdiction deemed absolutely
essential to maintaining discipline among troops in active service.
Even as late as the Seventeenth Century, standing armies and
courts-martial were not established institutions in England.
[
Footnote 21] 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 expansion of court-martial
jurisdiction at the expense of the normal
Page 350 U. S. 23
and constitutionally preferable system of trial by jury.
[
Footnote 22]
Determining the scope of the constitutional power of Congress to
authorize trial by court-martial presents another instance calling
for limitation to "
the least possible power adequate to the end
proposed." [
Footnote
23] We hold that Congress cannot subject civilians like Toth to
trial by court-martial. They, like other civilians, are entitled to
have the benefit of safeguards afforded those tried in the regular
courts authorized by Article III of the Constitution.
Reversed.
[
Footnote 1]
The charges were violations of Articles 118 and 81 of the
Uniform Code of Military Justice, 64 Stat. 140, 134, 50 U.S.C. §§
712 and 675.
[
Footnote 2]
Art. 3(a), Uniform Code of Military Justice, 64 Stat. 109, 50
U.S.C. § 553, provides:
"Subject to the provisions of article 43, any person charged
with having committed, while in a status in which he was subject to
this code, an offense against this code, punishable by confinement
of five years or more and for which the person cannot be tried in
the courts of the United States or any State or Territory thereof
or of the District of Columbia, shall not be relieved from
amenability to trial by courts-martial by reason of the termination
of said status."
[
Footnote 3]
This habeas corpus proceeding was brought in the District Court
for the District of Columbia by Toth's sister while he was held in
Korea. Without passing on any constitutional question, the District
Court ordered Toth discharged on the ground that he should not have
been carried to Korea for trial without a hearing.
113 F.
Supp. 330,
114 F.
Supp. 468.
[
Footnote 4]
See Ex parte Quirin, 317 U. S. 1;
In
re Yamashita, 327 U. S. 1.
[
Footnote 5]
The Fifth Amendment provides that
"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. . . ."
This provision does not grant court-martial power to Congress;
it merely makes clear that there need be no indictment for such
military offenses as Congress can authorize military tribunals to
try under its Article I power to make rules to govern the armed
forces.
[
Footnote 6]
Dynes v.
Hoover, 20 How. 65.
[
Footnote 7]
Kahn v. Anderson, 255 U. S. 1.
[
Footnote 8]
In 1863, Congress passed a statute authorizing trial of
ex-soldiers for commission of fraud against the Government while in
the service; this law also authorized court-martial trial of
contractors not part of the military forces. 12 Stat. 696. The
latter provision of the 1863 law appears never to have been
sustained by any court. Lower courts have disagreed as to the
constitutional validity of the provision authorizing ex-soldiers to
be tried.
See, e.g., In re Bogart, 3 Fed.Cas. 796.
Compare Ex parte Henderson, 11 Fed.Cas. 1067;
United
States ex rel. Flannery v. Commanding General, 69 F. Supp.
661, reversed by stipulation in unreported order of the Second
Circuit, No. 20235, April 18, 1946.
See United States ex rel.
Hirshberg v. Cooke, 336 U. S. 210. A
statute authorizing court-martial trial of inmates of the Soldiers'
Home has been ruled unconstitutional by the Judge Advocate General
of the Army. Dig.Op.J.A.G. (1912), pp. 1010, 1012. It was declared
that "such inmates are not a part of the Army of the United States,
but are civilians."
Id. at 1012. Col. Winthrop, concededly
a leading authority on military law, expressed the view that
"this class of statutes, which in terms or inferentially subject
persons formerly in the army, but become finally and legally
separated from it, to trial by court-martial, are all necessarily
and alike unconstitutional. . . ."
1 Winthrop, Military Law and Precedents (2d ed. 1896), 146. The
War Department reprinted this classic volume for the guidance of
the Army in 1920. Winthrop, Military Law and Precedents (2d ed.,
Reprint 1920).
[
Footnote 9]
A declaration of rights adopted by nine colonies in 1765
contained this statement: "That trial by jury is the inherent and
invaluable right of every British subject in these colonies."
Harvard Classics, Volume 43, p. 148. The Declaration of
Independence stated as one of the grievances of the colonies that
the King of Great Britain had deprived the colonists of the
benefits of trial by jury in many cases and that he had "affected
to render the Military independent of and superior to the Civil
power." Another charge was that he had transported colonials
"beyond Seas to be tried for pretended offences."
[
Footnote 10]
Chief Justice Cooley said:
"The trial of criminal cases is by a jury of the country, and
not by the court. The jurors, and they alone, are to judge of the
facts, and weigh the evidence. The law has established this
tribunal because it is believed that, from its numbers, the mode of
their selection, and the fact that the jurors come from all classes
of society, they are better calculated to judge of motives, weigh
probabilities, and take what may be called a common sense view of a
set of circumstances, involving both act and intent, than any
single man, however pure, wise and eminent he may be. This is the
theory of the law, and, as applied to criminal accusations, it is
eminently wise, and favorable alike to liberty and to justice."
People v. Garbutt, 17 Mich. 9, 27.
[
Footnote 11]
"Juries undoubtedly may make mistakes; they may commit errors;
they may commit gross ones. But changed as they constantly are,
their errors and mistakes can never grow into a dangerous system.
The native uprightness of their sentiments will not be bent under
the weight of precedent and authority. The esprit du corps will not
be introduced among them; nor will society experience from them
those mischiefs of which the esprit du corps, unchecked, is
sometimes productive."
II Wilson's Works (Andrews ed. 1896) 222.
[
Footnote 12]
An outstanding instance is the
Dean of St. Asaph's
Case, 21 How.St.Tr. 847, discussed in Stryker, For the
Defense, 119-136.
[
Footnote 13]
Penn and Mead's Case, 6 How.St.Tr. 951. After trial,
the jurors were fined for acquitting Penn contrary to the court's
instructions. One was imprisoned for not paying the fine, but the
Court of Common Pleas released him in a habeas corpus proceeding,
upholding the freedom of the jury to decide the case.
Bushell's
Case, 6 How.St.Tr. 999.
[
Footnote 14]
See II Wilson's Works (Andrews ed. 1896) 222.
[
Footnote 15]
Bureau of the Census, Current Population Reports, Series P-25,
No. 101 (U.S. Dept. Commerce 1954).
[
Footnote 16]
Arts. 77-134, Uniform Code of Military Justice, 64 Stat.
133-143, 50 U.S.C. §§ 671-728.
[
Footnote 17]
A particularly sweeping offense, punishable by death and not
subject to any statute of limitations, is found in Article 94,
which provides in part that anyone
"(2) who with intent to cause the overthrow or destruction of
lawful civil authority, creates, in concert with any other person
or persons, revolt, violence, or other disturbance against such
authority is guilty of sedition; (3) who fails to do his utmost to
prevent and suppress an offense of mutiny or sedition being
committed in his presence, or
fails to take all reasonable
means to inform his superior or commanding officer of an offense of
mutiny or sedition which he knows or
has reason to believe
is taking place, is guilty of a failure to suppress or report a
mutiny or sedition."
(Emphasis supplied.)
[
Footnote 18]
See Table of Maximum Punishments, 127
c, MCM,
1951, 16 Fed.Reg. 1364-1368.
[
Footnote 19]
Hearings before Subcommittee of Senate Committee on Armed
Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 256-257.
The Assistant General Counsel of the Office of Secretary of
Defense, who was chairman of a committee that helped draft the
Uniform Code of Military Justice, expressed doubts as to the
constitutionality of Article 3(a). Hearings before Subcommittee of
House Committee on Armed Services on H.R. 2498, 81st Cong., 1st
Sess. 881.
[
Footnote 20]
The historical background of this country's preference for
civilian over military trials was impressively presented in the
arguments of counsel and opinion of this Court in
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 121.
And see Duncan v. Kahanamoku, 327 U.
S. 304.
[
Footnote 21]
3 Macaulay, History of England from the Accession of James the
Second (London, 1855), 45.
[
Footnote 22]
Mr. Justice Sutherland, writing for the Court in
Dimick v.
Schiedt, 293 U. S. 474,
293 U. S.
485-486, said,
"The right of trial by jury is of ancient origin, characterized
by Blackstone as 'the glory of the English law' and 'the most
transcendent privilege which any subject can enjoy' (Bk. 3, p.
379); and, as Justice Story said (2 Story on the Constitution, §
1779),"
" . . . the Constitution would have been justly obnoxious to the
most conclusive objection if it had not recognized and confirmed it
in the most solemn terms."
"With perhaps some exceptions, trial by jury has always been,
and still is, generally regarded as the normal and preferable mode
of disposing of issues of fact in civil cases at law, as well as in
criminal cases. Maintenance of the jury as a factfinding body is of
such importance, and occupies so firm a place in our history and
jurisprudence, that any seeming curtailment of the right to a jury
trial should be scrutinized with the utmost care.
Compare
Patton v. United States, 281 U. S. 276,
281 U. S.
312."
[
Footnote 23]
Anderson v.
Dunn, 6 Wheat. 204,
19 U. S.
230-231.
MR. JUSTICE REED, with whom MR. JUSTICE BURTON and MR. JUSTICE
MINTON join, dissenting.
This case presents the question whether or not an honorably
discharged ex-serviceman may be apprehended by military authorities
to stand trial by court-martial for a crime alleged to have been
committed by him while he was a member of the armed forces of the
United States. The answer turns upon the constitutionality and
construction of the applicable provisions of the Uniform Code of
Military
Page 350 U. S. 24
Justice, 64 Stat. 108, 50 U.S.C. § 551
et seq., under
which the United States Air Force acted in this case.
Whenever an enactment of Congress to cure weaknesses in criminal
procedure is declared unconstitutional by this Court on the ground
of lack of legislative power, the door is closed, for all practical
purposes, forever on the method that Congress deems effective for
correcting crime. Only an overruling of this case can change
today's constitutional determination.
The judgment just announced turns loose, without trial or
possibility of trial, a man accused of murder. In future similar
cases among the military, if Congress enacts the substitute law as
the Court suggests,
ante p.
350 U. S. 21,
the accused must face a jury far removed from the scene of the
alleged crime and before jurors without the understanding of the
quality and character of a military crime possessed by those
accustomed to administer the Uniform Code of Military Justice. Or
perhaps those accused will be extradited and tried by foreign
law.
A dissent is justified, I think, if its argument may limit, in
some degree, further interpreting limitations by the judiciary on
the power granted by the Constitution to Congress "To make Rules
for the Government and Regulation of the land and naval Forces"
without the jury and venue requirements of the Fifth and Sixth
Amendments. These requirements are appropriate for civil trials,
but, by custom, our precedents and express language are
inapplicable to "cases arising in the land or naval forces."
Robert W. Toth, after service in the United States Air Force,
was honorably discharged on December 8, 1952. On April 8, 1953,
formal charges were signed under the procedures required by the
Uniform Code of Military Justice charging Toth with premeditated
murder and conspiracy to commit murder. [
Footnote 2/1] The specifications under the
Page 350 U. S. 25
charges alleged that the offenses were committed by Toth while
an Airman First Class, United States Air Force, on September 27,
1952, at an air base in Korea, and the victim was a named Korean
national. It was further alleged that Toth was a civilian subject
to the Uniform Code of Military Justice under Article 3(a) thereof
which provides:
"Subject to the provisions of article 43, any person charged
with having committed, while in a status in which he was subject to
this code, an offense against this code, punishable by confinement
of five years or more and for which the person cannot be tried in
the courts of the United States or any State or Territory thereof
or of the District of Columbia, shall not be relieved from
amenability to trial by courts-martial by reason of the termination
of said status."
64 Stat. 109, 50 U.S.C. § 553(a). [
Footnote 2/2]
On May 13, 1953, pursuant to orders originally issued by the
Acting Secretary of the Air Force on April 30, 1953, and further
supplemental orders through appropriate Air Force command channels,
Toth was apprehended by Air Force police at his place of employment
in Pittsburgh, Pennsylvania. On May 15, 1953, he was flown to
Korea, where he arrived on May 18, 1953.
This was the situation when the petition for habeas corpus was
filed by the relator. The Government did not question jurisdiction
in the District Court, and, after argument, that court ordered the
writ to issue. [
Footnote 2/3] Toth
was returned to the United States and produced in court, whereupon
the District Court ordered his discharge on the ground that, even
if the Air Force police had authority to apprehend Toth, they had
no legal power to transport him to a distant point for trial, or at
least to do so without
Page 350 U. S. 26
a hearing. The court therefore found it unnecessary to pass on
the constitutional objections raised by the petitioner as to the
invalidity of Article 3(a);
114 F.
Supp. 468.
On appeal, the Court of Appeals for the District of Columbia
Circuit reversed the District Court, discharged the writ, and
ordered Toth returned to the military authorities. 94 U.S.App.D.C.
28, 215 F.2d 22. The Court of Appeals held that Article 3(a) of the
Code was constitutionally valid, and that the Code provided the
necessary authorization and machinery to apprehend and transport
for trial, in the manner here followed, persons in civilian status
who were amenable to courts-martial by reason of the provisions of
Article 3(a).
The Code was enacted May 5, 1950, after careful military and
congressional study to assure that the military justice of the
unified services would be in accordance with the present-day
standards of fairness. [
Footnote
2/4] Article 3(a) was adopted in view of the decision of this
Court in
Hirshberg v. Cooke, 336 U.
S. 210 (1949), holding the Articles for the Government
of the Navy, then in force, did not allow trial on charges filed
subsequent to honorable discharge "without a grant of congressional
authority,"
id. at
336 U. S. 215,
although the charges arose from acts committed while the defendant
was in military service. The near escape from military justice of
Army personnel accused of the theft in Germany of the Hesse crown
jewels was also in mind. [
Footnote
2/5] It was thought that a serviceman's discharge should not
bar his prosecution in a military court for crimes committed when
subject to military discipline. [
Footnote 2/6]
Page 350 U. S. 27
The enactment of Article 3(a) was chosen instead of the
alternative of federal district court jurisdiction, although
thorough presentations of objections not only on constitutional,
but also on policy grounds appear in the committee report and the
Congressional Record. [
Footnote
2/7] The military were well aware, as was Congress, of possible
unfavorable public reaction to extension of the jurisdiction of
military courts to discharged veterans for alleged misdeeds during
service. The language of Article 3(a) was drawn to cover only the
most serious offenses and restricted to those instances in which
the guilty would otherwise escape trial or punishment in any
American courts. Although Congress, under Art. I, § 8, cl. 14,
[
Footnote 2/8] and the Necessary
and Proper Clause, doubtless might have authorized the civil courts
to try charges arising from violations of the Military Code during
former service, even
Page 350 U. S. 28
though committed on foreign soil, [
Footnote 2/9] it chose the method of Article 3(a).
No question of accommodating the liberty of the citizen to
requirements of the military through the interpretation of an
ambiguous Act arises.
Compare Ex parte Endo, 323 U.
S. 283,
323 U. S. 300.
It is not for courts to question the wisdom of the legislation. Its
obvious purpose was to assure, insofar as discipline may do so, the
proper conduct of our far-flung and numerous military personnel in
foreign lands. One need not stress the necessity of orderly conduct
by the military on foreign posts for the maintenance of good
relations in friendly or vanquished countries. It also seems a
reasonable choice that uniform treatment by courts-martial trial of
all accused of crimes punishable by the Military Code is preferred
for morale and disciplinary purposes to courts-martial trial only
for those who remain in the service. This case itself would make a
good example of the difficulty of a federal district court trial.
We address ourselves to the constitutionality of Article 3(a).
(a) The congressional power under Article I of the Constitution
to regulate the armed forces is conceded by the Court to embrace
the power to provide for trial by court-martial and military
punishment for violations of the Military Code. But the Court holds
that that power ceases when the serviceman becomes a civilian.
Nothing, we think, in the words of Article I or in the history of
that congressional power justifies limiting trial and
Page 350 U. S. 29
punishment by the military, for crimes committed by members of
the armed services, to the period of service. Certainly the power
of Congress to provide for a military trial and punishment for a
breach of the Military Code on charges brought before the end of
enlistment or discharge may continue thereafter. [
Footnote 2/10] The crime charged against Toth was
one covered by the Code. The circumstance that he was discharged
from the service prior to the detection of the alleged crime and
prior to being charged with its commission should make no
constitutional difference.
Courts-martial are deeply rooted in history. War is a grim
business, requiring sacrifice of ease, opportunity, freedom from
restraint, and liberty of action. Experience has demonstrated that
the law of the military must be capable of prompt punishment to
maintain discipline. The power to regulate the armed forces must
have been granted to Congress so that it would have the authority
over its armed forces that other nations have long exercised,
subject only to limitations of the Constitution.
Dynes v.
Hoover, 20 How. 65,
61 U. S. 78-79;
Ex parte Reed, 100 U. S. 13,
100 U. S. 21.
The Government calls our attention to the current provisions for
military trial after discharge of other nations with legal
background similar to ours. Each of them allows such trials under
varying conditions. [
Footnote
2/11]
Page 350 U. S. 30
Whether English courts-martial before 1789 exercised
jurisdiction over charges preferred after separation from service
cannot be categorically asserted in view of the paucity of cases.
It would seem, however, that the language of Article I itself
properly should be interpreted
Page 350 U. S. 31
to empower Congress to authorize courts-martial after separation
from the services. The crime charged was committed during service,
and violated the Military Code. Surely, when read with the
Necessary and Proper Clause, the conclusion must follow. Article
3(a) bears a reasonable relation to the "Government and Regulation"
of the armed forces; it is appropriate and plainly adapted to that
end.
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 419
et seq. That has been the test of congressional power.
This is not an effort to make a civilian subject to military
law, in distinction to martial law, as in
Ex parte
Milligan, 4 Wall. 2, 121,
71 U. S. 123,
71 U. S. 127.
Such an effort would meet condemnation as an invasion of the
liberty of the citizen.
See Duncan v. Kahanamoku,
327 U. S. 304;
Ex parte Endo, 323 U. S. 283.
Congress was granted authority to regulate the armed forces in
order to enforce obedience by members of the military establishment
to military regulation during their service to the end that order
may be ensured. Disobedience may occur in nationally critical
times. What reason can there be for
Page 350 U. S. 32
refusing courts-martial jurisdiction over crimes so committed by
a serviceman merely because they passed undiscovered during the
service period? [
Footnote 2/12]
Could there now be doubt as to the power of Congress under Art. I
to make a draftee subject to courts-martial before actual induction
into the armed forces? This Court had none in 1944. Then we said,
when considering a habeas corpus for release from military
imprisonment after trial by court-martial of a person claiming
civilian status:
"We have no doubt of the power of Congress to enlist the
manpower of the nation for prosecution of the war and to subject to
military jurisdiction those who are unwilling, as well as those who
are eager, to come to the defense of their nation in its hour of
peril.
Arver v. United States, 245 U. S.
366 [Selective Draft Law Cases]."
Billings v. Truesdell, 321 U.
S. 542,
321 U. S. 556.
Toth may be a civilian, but his crime was a violation of military
regulations.
Judicial history lends its weight to the conclusion that
congressional power to institute criminal proceedings against a
military person continues after the accused's discharge. In 1863,
the Congress enacted an Act to prevent and punish frauds upon the
Government of the United States. It provided that any person in the
military
Page 350 U. S. 33
forces shall be punished for fraud under military regulation "as
the court-martial may adjudge, save the punishment of death." 12
Stat. 696-697, § 1. Under § 2, jurisdiction of the court-martial
was extended to dischargees. [
Footnote 2/13] The provision for charge and
court-martial after discharge was ruled constitutional in 1866 by
Attorney General Stanbery. [
Footnote
2/14] The section was held constitutional in 1873.
In re
Bogart, 3 Fed.Cas. 796.
See other cases,
350 U.S.
11fn2/22|>note 22,
infra. It was apparently held
unconstitutional in 1946 under Article I in the District Court for
the Southern District of New York, although the problem under the
Fifth Amendment was also considered.
United States ex rel.
Flannery v. Commanding General, 69 F.
Supp. 661, 664. [
Footnote
2/15]
Page 350 U. S. 34
It is also to be noted that the present Uniform Code, Art. 4, 50
U.S.C. § 554, provides that an officer dismissed by the President
may request trial by Court-martial after such dismissal. A similar
provision was first enacted by Congress in 1865, § 12, 13 Stat.
487, 489;
see Winthrop, Military Law and Precedents (2d
ed., Reprint 1920), 64, 65.
The Court finds a "compelling reason" for construing the clause
for Army regulation more narrowly than has been done by the
Congress and the Executive for many years. This is that trial by
Article III judges and juries offers safeguards to military
offenders superior to those offered by courts-martial. Under our
judicial system, the use of juries has been found satisfactory in
civil life. The argument for the adoption of civil trials for the
military might appeal to Congress, if presented there. But, with
due respect to the premise of the majority, the assumed superiority
of the civil courts in the trial of service crimes should have no
force in the construction of the constitutional power of Congress
to enact Article 3(a) of the Code. Belief that an accused has
better opportunities to escape conviction in a civil court should
not influence a conclusion as to constitutional power. As later
appears in this opinion, the Fifth and Sixth Amendments except the
land and naval forces from their commands. The advantages and
disadvantages of indictment, venue and jury trial for the military
have been weighed and determined adversely to the Court's
conclusion by the Constitution and the Congress. Certainly the
number of former members of the armed services now living is
immaterial to the constitutional issue, as are the "dangers"
suggested to be "lurking in military trials." The military is in
position to give its personnel a fair trial. The only logical
ground for declaring Article 3(a) unconstitutional is that military
crimes cannot be so punished because such procedure is beyond the
reach of the congressional
Page 350 U. S. 35
authority to make rules for government of military personnel.
Subsequent punishment by military procedures will help discipline
during service. Such a conclusion by Congress is not strained or
unreasonable, but a natural use of its power to make regulations
for the armed services. The choice is for Congress, not the
Court.
(b) Another constitutional problem arises,
i.e., that
Article 3(a) is unlawful by reason of the limitations on
prosecutions of the Fifth and Sixth Amendments to the Constitution.
[
Footnote 2/16]
The argument upon the Sixth Amendment requires only summary
treatment. The rights to a speedy and public trial, impartiality of
the triers, information as to the charge, confrontation, compulsory
process for witnesses and assistance of counsel are not in issue.
This accused will not have for his trial a jury of the State and
district of the crime, previously ascertained by our law. That is
an impossibility in the circumstances of this case. Nor can it be
that the Sixth Amendment requirements as
Page 350 U. S. 36
to jury and place were intended to apply to the "cases arising
in the land or naval forces" which were excepted from the
protection of the grand jury by the Fifth. That would abrogate the
authority of Congress to govern the military by courts-martial. It
was so announced by this Court, unanimously, in
Ex parte
Milligan, 4 Wall. 2,
71 U. S. 122.
[
Footnote 2/17]
Page 350 U. S. 37
Defendants in cases arising in the armed forces, we think, are
not entitled to demand trial by jury, whether the crime was
committed on foreign soil or at a place within a State or
previously ascertained district.
Turning to the Fifth Amendment, the critical words are obviously
"cases arising in the land or naval forces." The events leading to
the taking of Toth into custody occurred while he was enlisted.
They constituted then and now a violation of the Uniform Code.
Relator would limit the quoted words to cases where charges had
been filed during service. She stresses the phrase "when in actual
service," but this Court has held, and all the history of our
courts-martial shows, that such phrase has reference only to "cases
arising . . . in the Militia."
Johnson v. Sayre,
158 U. S. 109,
158 U. S.
114.
The Fifth, like the other early amendments, arose from the
determination to protect the rights of citizens. As the Articles of
Confederation, Article 9, granted authority to the central
government to make rules for the government and regulation of the
armed forces, the Nation was
Page 350 U. S. 38
conversant with the problem. In the state conventions for
ratification of the Constitution, Massachusetts, New Hampshire, New
York and Rhode Island suggested words for regulation of the armed
forces quite similar to the ones adopted by Congress. [
Footnote 2/18] It will be observed that
two employ "arise." Three speak of "cases." Since the state
suggestions were made as the result of consideration of the
proposed Constitution, it is quite natural that the language of
Article III concerning the judicial power would find an echo in the
suggestions. Article III, § 2, reads,
"The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority. . . ."
When the Congress considered the Act against military fraud in
1863,
350 U.S.
11fn2/13|>note 13,
supra, no one suggested that a
"case," the prosecution for which under the Act did not
Page 350 U. S. 39
begin until after discharge of a serviceman, would not be a
"case arising in the land or naval forces." The concern of Congress
was with the liability of contractors, as part of military
personnel, under § 1 of the Act, when they had no true military
service status. [
Footnote 2/19]
Because not service-connected, the contractors' clause has been
held unconstitutional.
Ex parte Henderson, 11 Fed.Cas.
1067, 1071.
The word "case," of course, might refer to litigation -- a
charge or complaint brought in court, here a prosecution. But it
seems to us that its meaning, as used in the constitutional clauses
under consideration, is a state of facts for judicial action,
i.e., the series of events that creates an enforceable
right or obligation. The context in which it is used bears on the
final definition. Here, "cases arising" is more specific than the
word "case" alone. The Government gives us several citations to
cases applying the meaning for which it contends. [
Footnote 2/20]
Page 350 U. S. 40
Relator does the same. [
Footnote
2/21] Article III uses "cases arising" under federal law to
indicate the extent of possible federal jurisdiction over legal
rights or duties created by the laws of the United States. The
meaning of "cases arising" in Article III and the Fifth Amendment
must be determined by their purpose. That purpose is similar -- to
mark the source of the cause of action that ripens into a civil
complaint or criminal charge. However restricted the word "case"
may be, its use with "arising" points to the source of the
litigation. If a case is claimed to exist only after institution of
legal proceedings, nevertheless that case has its roots, it arises,
in the events that give life to the cause of action. When a case so
arises was stated thus in
Gully v. First Nat. Bank,
299 U. S. 109,
299 U. S. 112,
in an opinion concerning the removal statute, where
Page 350 U. S. 41
removal was asked because the state suit was alleged to have
arisen under federal law:
"To bring a case within the statute, a right or immunity created
by the Constitution or laws of the United States must be an
element, and an essential one, of the plaintiff's cause of action.
. . . The right or immunity must be such that it will be supported
if the Constitution or laws of the United States are given one
construction or effect, and defeated if they receive another. . .
."
One of the purposes of the Fifth Amendment by this exception was
to preserve the separation of military law from the requirements of
civil law. The regulation of the armed forces by Congress under cl.
14 of § 8, Art. I, was to be left for legislative judgment that
discipline might be maintained by speedy trial and punishment in
accordance with military law. The reasons, set out in our
discussion of Article I power to regulate the armed forces, need
not be repeated here. We ask ourselves, "What law is the basis of
this prosecution?" The answer is the Military Code. If so, the case
arises "in the land or naval forces."
That conclusion has the support of the weight of the precedents
dealing with this phase of the Fifth Amendment. To meet the
argument of defendant that jurisdiction must attach before
discharge, it was said in the
Bogart case, 3 Fed.Cas. 796,
799:
"Among the ordinary and most common definitions of the word
'arise' are 'to proceed, to issue, to spring,' and a case arising
in the land or naval forces, upon a fair and reasonable
construction of the whole article, appears to us to be a case
proceeding, issuing or springing from acts in violation of the
naval laws and regulations committed while in the naval forces or
service. "
Page 350 U. S. 42
This statement has been strengthened by the accord given the
argument by other courts. [
Footnote
2/22]
(c) The Court, of course, does not gainsay the constitutional
authority of Congress to adopt a military code for regulation of
members of the armed forces without regard to the generally
applicable requirements of the Fifth and Sixth Amendments. It holds
that, where the constitutional safeguards of the Fifth and Sixth
Amendments for a citizen's freedom from tyranny are at stake, they
should not be withdrawn except through absolute necessity. There is
no such necessity here, for it would have been possible to have
provided a proper civil trial with the full protection of the
applicable clauses of the Amendments. But here we are considering
an exception to the safeguards offered by the Fifth and Sixth
Amendments. That exception has been written into the Constitution
from the experience of history to protect the discipline of the
armed forces. Of course, that exception from the protections of
these Amendments should be strictly construed to hold those
excluded to the minimum as was done in
Ex parte Henderson,
supra, p. 39. Construction of the Constitution, however,
should not be allowed to emasculate the natural meaning of language
designed to protect the Nation in the regulation of its armed
forces.
What we have argued in the foregoing pages of this opinion
supports our conclusion on this tendered rule of construction.
Granting that there are possible means of affording civil trials to
persons discharged from the Army for military crimes committed
during their service, we think that Congress has power to provide
for punishment of these military crimes under the constitutional
exceptions discussed. Such punishment, if our analysis of
Page 350 U. S. 43
Article I and the Fifth and Sixth Amendments is correct, will be
for military crimes of servicemen, not of civilians, and for the
maintenance of discipline in the armed forces. The relator phrases
strongly her argument against Toth's prosecution by courts-martial.
To her, the issue is "military dictatorship." Though she concedes
that Congress may have merely desired to bar absolution from crime
by discharge from service, such purpose, she argues, should not
override the Constitution, or be allowed to foreshadow a "military
dictatorship." She forebodes that every petty crime may be
included, and limitation of prosecution be extended, until all
discharged servicemen shall live their lives under fear of the
Military. The law still has degrees of harshness, and courts and
legislatures must act in reason. The possibility of individual
abuse of power is ever present even under our Constitution, but the
probability of obliteration of any such tendency through judicial,
executive or legislative action is the citizen's protection under
the Constitution. A fear that punishment by courts-martial of
servicemen after discharge may bear a threat to the rights and
security of citizens is extravagant. It is true today, as it was in
the time of the Founding Fathers, that the methods for maintenance
of Army discipline should be subject to public opinion as expressed
through Congress. If trial of discharged servicemen by
courts-martial under the carefully defined provisions of Article
3(a) seems harsh or hurtful to liberty, the door of Congress
remains open for amelioration. This decision that a veteran, let
out of the military forces before charges, must, by the
Constitution, be tried by the civil courts for his military crimes
impairs congressional power. Now only another Constitutional
Amendment or a reversal of today's judgment will enable Congress to
deal consistently with those violating the Uniform Code of Military
Justice. We cannot agree that those who adopted the constitutional
provisions for the
Page 350 U. S. 44
protection of military discipline intended such a result. Toth's
alleged accomplices have been convicted by military courts, and we
see no reason why he should not be tried as proposed.
The decision below should be affirmed.
[
Footnote 2/1]
The charges were violations of Articles 118 and 81,
respectively, of the Uniform Code of Military Justice, 50 U.S.C. §§
712, 675.
[
Footnote 2/2]
Article 43 is the statute of limitations applicable to offenses
punishable under the Code, 50 U.S.C. § 618.
[
Footnote 2/3]
113 F.
Supp. 330.
[
Footnote 2/4]
S.Rep. No. 486, 81st Cong., 1st Sess., p. 3; H.R.Rep. No. 491,
81st Cong., 1st Sess., p. 2.
[
Footnote 2/5]
Hearings before a Subcommittee of the House Committee on Armed
Services on H.R. 2498, 81st Cong., 1st Sess., pp. 879-885.
See
Durant v. Hiatt, 81 F. Supp.
948.
[
Footnote 2/6]
Both the House and Senate Committee Reports stated that the need
for Article 3(a) was to remedy the undesirable situation pointed
out by the
Hirshberg decision. Both reports contain the
following sentence:
"In the opinion of the committee, the present provisions
[Article 3(a)] of this subdivision provide a desirable degree of
continuing jurisdiction and at the same time place sufficient
limitations on the continuing jurisdiction to prevent capricious
actions on the part of military authorities."
H.R.Rep. No. 491, 81st Cong., 1st Sess. 11; S.Rep. No. 486, 81st
Cong., 1st Sess. 8. The same view was expressed by the managers of
the bill in the House and Senate. Representative Brooks, at 95
Cong.Rec. 5721, and Senator Kefauver, at 96 Cong.Rec. 1358. Views
against the adoption of Article 3(a) were urged in committee and on
the floor, but did not prevail. Hearings before a Subcommittee of
the Senate Committee on Armed Services on S. 857 and H.R. 4080,
81st Cong., 1st Sess. 256-257; 96 Cong.Rec. 1294, 1366,
1412-1417.
[
Footnote 2/7]
96 Cong.Rec. 1294
et seq. The proposed substitute for
Article 3(a) was:
"Subject to the provisions of article 43, jurisdiction is hereby
conferred upon the several district courts of the United States to
try and punish according to the applicable provisions and
limitations of this code and the regulations made thereunder
--"
"(1) any person charged with having committed an offense against
this code while in a status in which he was subject to this code
which status has been terminated; . . ."
[
Footnote 2/8]
"To make Rules for the Government and Regulation of the land and
naval Forces; . . ."
[
Footnote 2/9]
"The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury, and such Trial shall be held in the State where the
said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed."
Art. III, § 2, cl. 3.
Skiriotes v. Florida, 313 U. S. 69,
313 U. S. 73,
and cases cited;
Chandler v. United States, 171 F.2d
921.
[
Footnote 2/10]
Carter v. McClaughry, 183 U. S. 365,
183 U. S. 382;
Mosher v. Hunter, 143 F.2d 745.
Cf. Kahn v.
Anderson, 255 U. S. 1,
255 U. S. 7;
Walker v. Morris, 3 American Jurist and Law Magazine
281.
[
Footnote 2/11]
Section 158 of the British Army Act (Gt.Brit., Stats.Rev.3d ed.,
Vol. X, 457, 563-564; War Office, Manual of Military Law, Pt. I,
1951, 376-377) provides:
"(I) Where an offence under this Act has been committed by any
person while subject to military law, such person may be taken into
and kept in military custody, and tried and punished for such
offence, although he, or the corps or battalion to which he
belongs, has ceased to be subject to military law in like manner as
he might have been taken into and kept in military custody, tried
or punished, if he or such corps or battalion had continued so
subject: "
"Provided that, where a person has since the commission of an
offence ceased to be subject to military law, he shall not be tried
for such offence, except in the case of the offence of mutiny,
desertion, or fraudulent enlistment, unless his trial commences
within three months after he had ceased to be subject to military
law, or unless the offence was committed outside the United Kingdom
and is an offence which when committed in England is punishable by
the law of England, and the Attorney General consents to the trial.
. . ."
The British Army Act, including the provision in § 158 for
court-martial after termination of military service, dates from
1881. 17 Law Reports (Statutes) 44 and 45 Vict. 260, 331.
See also the Defence Act of Australia, § 103(3),
Commonwealth Acts, Vol. II (1901-1950), 1560, 1596; National
Defence Act of Canada, 1950, §§ 56(2) and (3), and 68(f), Revised
Statutes of Canada, 1952, Vol. III, 3814 and 3821. New Zealand has
a similar statute (Army Act, § 127(1), New Zealand Statutes, 1950,
283, 370-371).
At the time of our Constitutional Convention, there had already
been held the well known court-martial of Lord George Sackville for
disobedience of orders of his Chief, Prince Ferdinand of Brunswick,
at the battle of Minden. The trial took place after his dismissal
from his command and the service. The King, George II, submitted
the question of jurisdiction of the court-martial to the twelve
judges composing the Courts of King's Bench, Common Pleas and
Exchequer, headed by Lord Mansfield, and received the following
advisory answer:
"In obedience to your Majesty's commands, signified to us by a
letter . . . referring to us the following question, 'Whether an
officer of the army having been dismissed from his Majesty's
service, and having no military employment, is triable by a Court
Martial for a military offence lately committed by him while in
actual service and pay as an officer?'"
"We have taken the same into consideration, and see no ground to
doubt of the legality of the jurisdiction of a Court Martial in the
case put by the above question."
The judges ended with a reservation of the privilege of changing
their minds if the matter were judicially presented, apparently in
accordance with the practice in such advisory opinions.
See note, 28 Eng.Rep. 941. II Eden's Chancery Reports,
App. p. 371.
See Trials, Courts Martial -- Sackville,
1760. On conviction, the King directed the sentence be recorded in
the order book of every regiment, British and American. In view of
the prominence of the parties and the subsequent distinguished
career of Lord George Sackville, who died in 1785 after having been
advanced in 1782 to the peerage as Viscount Sackville for his
services in Parliament, the Irish administration, and as Secretary
of State for the Colonies, the case could hardly have escaped the
notice of the members of the Constitutional Convention.
See VII Dictionary of Nat.Biography 1110; 4 Smollett,
History of England, 337; Tytler, Military Law (2d ed.), 113. 8
Op.Atty.Gen. 328.
But see 31 Op.Atty.Gen. 521; Clode,
Martial and Military Law, 92.
[
Footnote 2/12]
It must be noted, however, that a leading military authority is
against that view.
See Winthrop, Military Law and
Precedents (2d ed., Reprint 1920), 105, although he admits the
weight of the precedents is against him.
See, however, a comparable authority, Edmund M. Morgan,
Court-Martial Jurisdiction, 4 Minn.Law Rev. 79, 83 (1920). For
further discussion of the problem,
see Myers and Kaplan,
Crime Without Punishment, 35 Geo.L.J. 303 (1947); Note, Military
Jurisdiction over Discharged Servicemen: Constitutionality and
Judicial Protection, 67 Harv.L.Rev. 479 (1954); Note, The
Amenability of the Veteran to Military Law, 46 Col.L.Rev. 977
(1946).
[
Footnote 2/13]
"That any person heretofore called or hereafter to be called
into or employed in such forces or service, who shall commit any
violation of this act and shall afterwards receive his discharge,
or be dismissed from the service, shall, notwithstanding such
discharge or dismissal, continue to be liable to be arrested and
held for trial and sentence by a court-martial, in the same manner
and to the same extent as if he had not received such discharge or
been dismissed."
This was carried into the Articles of War, Rev.Stat. (1878),
Art. 60, p. 235; 10 U.S.C. (1946 ed.) § 1566, Art. 94, amended 62
Stat. 641, and in the Articles for the Government of the Navy, 34
U.S.C. (1946 ed.) § 1200, Art. 14 (Eleventh), until the enactment
of the present Uniform Code, Art. 3.
[
Footnote 2/14]
12 Op.Atty.Gen. 4, 5:
"It is simply a regulation which is to follow a dismissal,
providing, in certain contingencies, for the restoration of the
officer to the service, and leaving the dismissal in full force if
those contingencies do not happen."
In 1848, Attorney General Toucey, in the absence of any
applicable rule for the government of the Army, had ruled that a
charge of murder could not be brought against an officer already
mustered out. 5 Op.Atty.Gen. 55, 58. A similar conclusion was
stated by Attorney General Palmer (1919), 31 Op.Atty.Gen. 521, 529.
See 8 Op.Atty.Gen. 328, 332.
[
Footnote 2/15]
We are advised by the Government that this case was reversed by
stipulation.
See Kronberg v. Hale, 180 F.2d 128, 130.
[
Footnote 2/16]
Fifth Amendment:
"No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just
compensation."
Sixth Amendment:
"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, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence."
[
Footnote 2/17]
"Another guarantee of freedom was broken when Milligan was
denied a trial by jury. The great minds of the country have
differed on the correct interpretation to be given to various
provisions of the Federal Constitution, and judicial decision has
been often invoked to settle their true meaning; but, until
recently, no one ever doubted that the right of trial by jury was
fortified in the organic law against the power of attack. It is
now assailed; but if ideas can be expressed in words, and
language has any meaning,
this right -- one of the most
valuable in a free country -- is preserved to everyone accused of
crime who is not attached to the army, or navy, or militia in
actual service. The sixth amendment affirms that, 'in all criminal
prosecutions the accused shall enjoy the right to a speedy and
public trial by an impartial jury,' language broad enough to
embrace all persons and cases; but the fifth, recognizing the
necessity of an indictment or presentment before anyone can be held
to answer for high crimes, '
excepts cases arising in the
land or naval forces, or in the militia, when in actual service, in
time of war or public danger,' and the framers of the Constitution
doubtless meant to limit the right of trial by jury in the sixth
amendment to those persons who were subject to indictment or
presentment in the fifth."
The four who concurred agreed with the majority on this
point:
"The Constitution itself provides for military government, as
well as for civil government. And we do not understand it to be
claimed that the civil safeguards of the Constitution have
application in cases within the proper sphere of the former."
"What, then, is that proper sphere? Congress has power to raise
and support armies; to provide and maintain a navy, to make rules
for the government and regulation of the land and naval forces, and
to provide for governing such part of the militia as may be in the
service of the United States."
"It is not denied that the power to make rules for the
government of the army and navy is a power to provide for trial and
punishment by military courts without a jury. It has been so
understood and exercised from the adoption of the Constitution to
the present time."
"Nor, in our judgment, does the fifth, or any other amendment,
abridge that power. 'Cases arising in the land and naval forces, or
in the militia in actual service in time of war or public danger'
are expressly excepted from the fifth amendment, 'that no person
shall be held to answer for a capital or otherwise infamous crime,
unless on a presentment or indictment of a grand jury,' and it is
admitted that the exception applies to the other amendments as well
as to the fifth."
"
* * * *"
"We think, therefore, that the power of Congress, in the
government of the land and naval forces and of the militia, is not
at all affected by the fifth or any other amendment."
4 Wall. at
71 U. S.
137-138.
It was so held as to Haupt, treated as an American citizen in
Ex parte Quirin, 317 U. S. 1,
317 U. S. 20, 24,
40, 44.
"We conclude that the Fifth and Sixth Amendments did not
restrict whatever authority was conferred by the Constitution to
try offenses against the law of war by military commission, and
that petitioners, charged with such an offense not required to be
tried by jury at common law, were lawfully placed on trial by the
Commission without a jury."
Id. at
317 U. S. 45.
[
Footnote 2/18]
Massachusetts:
"That no person shall be tried for any crime by which he may
incur an infamous punishment, or loss of life, until he be first
indicted by a grand jury, except in such cases as may arise in the
government and regulation of the land and naval forces."
New Hampshire:
"That no person shall be tried for any crime by which he may
incur an infamous punishment, or loss of life, until he first be
indicted by a grand jury, except in such cases as may arise in the
government and regulation of the land and naval forces."
New York:
"That (except in the government of the land and naval forces,
and of the militia when in actual service, and in cases of
impeachment) a presentment or indictment by a grand jury ought to
be observed as a necessary preliminary to the trial of all crimes
cognizable by the judiciary of the United States; . . ."
Rhode Island:
"That, in all capital and criminal prosecutions, a man hath the
right to demand the cause and nature of his accusation, to be
confronted with the accusers and witnesses, to call for evidence,
and be allowed counsel in his favor, and to a fair and speedy trial
by an impartial jury in his vicinage, without whose unanimous
consent he cannot be found guilty (except in the government of the
land and naval forces), nor can he be compelled to give evidence
against himself."
I Elliot's Debates (2d ed.), 323, 326, 328, 334.
[
Footnote 2/19]
As to that, Senator Howard, in charge of the bill, said:
"The question arises, what is a 'case arising in the land or
naval forces of the United States?' There is not any doubt that a
soldier or officer who has enlisted in the service of the United
States is or may be made subject to martial law. Why is he made
subject to martial law? Because, being in the service of the United
States, the act committed by him is a case arising in that service.
. . . An officer or soldier enters the Army under contract, under
an agreement to render this service, and how, I beg to inquire,
does the case of a contractor who engages to furnish arms,
equipments, or munitions of war to the United States for the same
purpose differ from the case of an officer or soldier who is simply
to bear arms and use the materials which the contractor is to
furnish?"
Cong.Globe, 37th Cong., 3d Sess . 953 (1863).
[
Footnote 2/20]
United States v.
Bevan, 3 Wheat. 336,
16 U. S. 388,
"the waters on which . . . cases may arise";
Waring v.
Clarke, 5 How. 441,
46 U. S. 466,
"case of collision taking place on the Mississippi river," and
"cause of action arisen on the ocean."
Id. at
46 U. S. 467.
De Lovio v. Boit, 7 Fed.Cas. 418, 432, 434-435.
[
Footnote 2/21]
"This clause enables the judicial department to receive
jurisdiction to the full extent of the constitution, laws, and
treaties of the United States when any question respecting them
shall assume such a form that the judicial power is capable of
acting on it. That power is capable of acting only when the subject
is submitted to it by a party who asserts his rights in the form
prescribed by law. It then becomes a case, and the constitution
declares that the judicial power shall extend to all cases arising
under the constitution, laws, and treaties of the United
States."
Osborn v. Bank of The United
States, 9 Wheat. 738, at
22 U. S.
819.
"By cases and controversies are intended the claims of litigants
brought before the courts for determination by such regular
proceedings as are established by law or custom for the protection
or enforcement of rights or the prevention, redress or punishment
of wrongs. Whenever the claim of a party under the Constitution,
laws, or treaties of the United States takes such a form that the
judicial power is capable of acting upon it, then it has become a
case. The term implies the existence of present or possible adverse
parties whose contentions are submitted to the court for
adjudication."
In re Pacific R. Commission, 32 F. 241, 255.
"These definitions have been adhered to by this Court in
Muskrat v. United States, 219 U. S.
346,
219 U. S. 356 and
Aetna
Life Insurance Company v. Haworth, 300 U. S.
227."
[
Footnote 2/22]
Ex parte Joly, 290 F. 858;
Terry v. United
States, 2 F. Supp.
962;
Kronberg v. Hale, 180 F.2d 128.
MR. JUSTICE MINTON, whom MR. JUSTICE BURTON joins,
dissenting.
I agree with the opinion of MR. JUSTICE REED, and I would add
another reason why I think the judgment should be affirmed.
A civilian not under the jurisdiction of the Military Code has a
right to be tried in a civil court for an alleged crime as a
civilian. My trouble is that I don't think Toth was a full-fledged
civilian. By 50 U.S.C. § 553, Congress had retained jurisdiction to
try Toth for a crime he had committed while a soldier and for which
admittedly he could have been tried by court-martial if the United
States had discovered his crime one minute before discharge.
He was not a full-fledged civilian under his discharge. He was
still a soldier to answer in court-martial for the crime he had
committed while a soldier. He had a conditional discharge only. The
United States clearly reserved the right to charge and try him by
court-martial for a crime committed while in the status of a
soldier. This is the way Congress had provided for his trial. No
other way was provided. That it may have provided another way is
not to say the way provided is invalid.
I know of no reason why Congress could not pass this statute, 50
U.S.C. § 553, retaining court-martial jurisdiction over Toth to
answer for a crime he allegedly committed when he was clearly
subject to court-martial.
Kahn v. Anderson, 255 U. S.
1, holds that, even though discharged from service, one
convicted and serving sentence for a military offense could still
be tried by court-martial
Page 350 U. S. 45
for murder and conspiracy to commit murder, even though the
crime was alleged to have been committed within the limits of a
state. Congress had made no provision for retention of status in
that case as it had in this case, yet the Court implied the
continuing military status to warrant the jurisdiction. No implied
status is necessary here. It is expressly reserved by statute. Toth
remained in that status by virtue of the statute.