REID v. COVERT

Article 2 (11) of the Uniform Code of Military Justice, providing for the trial by court-martial of "all persons . . . accompanying the armed forces" of the United States in foreign countries, cannot constitutionally be applied, in capital cases, to the trial of civilian dependents accompanying members of the armed forces overseas in time of peace. Kinsella v. Krueger, 351 U.S. 470, and Reid v. Covert, 351 U.S. 487, withdrawn. Pp. 3-78.

Judgment below in No. 701, October Term, 1955, affirmed.

137 F. Supp. 806, reversed and remanded.

MR. JUSTICE BLACK, in an opinion joined by THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN, concluded that:

1. When the United States acts against its citizens abroad, it can do so only in accordance with all the limitations imposed by the Constitution, including Art. III, § 2, and the Fifth and Sixth Amendments. Pp. 5-14.

2. Insofar as Art. 2 (11) of the Uniform Code of Military Justice provides for the military trial of civilian dependents accompanying the armed forces in foreign countries, it cannot be sustained as legislation which is "necessary and proper" to carry out obligations of the United States under international agreements made with those countries; since no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution. Pp. 15-19.

3. The power of Congress under Art. I, § 8, cl. 14, of the Constitution, "To make Rules for the Government and Regulation of the land and naval Forces," taken in conjunction with the Necessary and Proper Clause, does not extend to civilians — even though they may be dependents living with servicemen on a military base. Pp. 19-40.

4. Under our Constitution, courts of law alone are given power to try civilians for their offenses against the United States. Pp. 40-41.

MR. JUSTICE FRANKFURTER, concurring in the result, concluded that, in capital cases, the exercise of court-martial jurisdiction over civilian dependents in time of peace cannot be justified by the power of Congress under Article I to regulate the "land and naval Forces," when considered in connection with the specific protections afforded civilians by Article III and the Fifth and Sixth Amendments. Pp. 41-64.

MR. JUSTICE HARLAN, concurring in the result, concluded that, where the offense is capital, Art. 2 (11) of the Uniform Code of Military Justice cannot constitutionally be applied to the trial of civilian dependents of members of the armed forces overseas in times of peace. Pp. 65-78.

MR. JUSTICE FRANKFURTER, concurring in the result.

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

Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the "land and naval Forces," and who therefore are not protected by specific provisions of Article III and the Fifth and Sixth Amendments. It is of course true that, at least regarding the right to a grand jury indictment, the Fifth Amendment is not unmindful of the demands of military discipline. Within the scope of appropriate construction, the phrase "except in cases arising in the land and naval Forces" has been assumed also to modify the guaranties of speedy and public trial by jury. And so, the problem before us is not to be answered by recourse to the literal words of this exception. The cases cannot be decided simply by saying that, since these women were not in uniform, they were not "in the land and naval Forces." The Court's function in constitutional adjudications is not exhausted by a literal reading of words. It may be tiresome, but it is nonetheless vital, to keep our judicial minds fixed on the injunction that "it is a constitution we are expounding." M'Culloch v. Maryland, 4 Wheat. 316, 407. Although Winthrop, in his treatise, states that the Constitution "clearly distinguishes the military from the civil class as separate communities" and "recognizes no third class which is part civil and part military — military for a particular purpose or in a particular situation, and civil for all other purposes and in all other situations . . .," Winthrop, Military Law and Precedents (2d ed. 1896), 145, this Court, applying appropriate methods of constitutional interpretation, has long held, and in a variety of situations, that in the exercise of a power specifically granted to it, Congress may sweep in what may be necessary to make effective the explicitly worded power. See Jacob Ruppert v. Caffey, 251 U.S. 264, especially 289 et seq.; Purity Extract Co. v. Lynch, 226 U.S. 192, 201; Railroad Commission v. Chicago, Burlington Quincy R. Co., 257 U.S. 563, 588. This is the significance of the Necessary and Proper Clause, which is not to be considered so much a separate clause in Art. I, § 8, as an integral part of each of the preceding 17 clauses. Only thus may be avoided a strangling literalness in construing a document that is not an enumeration of static rules but the living framework of government designed for an undefined future. M'Culloch v. Maryland, 4 Wheat. 316; Hurtado v. California, 110 U.S. 516, 530-531.

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

We are not concerned here even with the possibility of some alternative non-military type of trial that does not contain all the safeguards of Article III and the Fifth and Sixth Amendments. We must judge only what has been enacted and what is at issue. It is the power actually asserted by Congress under Art. I, § 8, cl. 14, that must now be adjudged in the light of Article III and the Fifth and Sixth Amendments. In making this adjudication, I must emphasize that it is only the trial of civilian dependents in a capital case in time of peace that is in question. The Court has not before it, and therefore I need not intimate any opinion on, situations involving civilians, in the sense of persons not having a military status, other than dependents. Nor do we have before us a case involving a non-capital crime. This narrow delineation of the issue is merely to respect the important restrictions binding on the Court when passing on the constitutionality of an Act of Congress. "In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully." Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39.

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

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

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

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

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

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

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

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

Legal doctrines are not self-generated abstract categories. They do not fall from the sky; nor are they pulled out of it. They have a specific juridical origin and etiology. They derive meaning and content from the circumstances that gave rise to them and from the purposes they were designed to serve. To these they are bound as is a live tree to its roots. Doctrines like those expressed by the Ross case and the series of cases beginning with American Insurance Co. v. Canter, 1 Pet. 511, must be placed in their historical setting. They cannot be wrenched from it and mechanically transplanted into an alien, unrelated context without suffering mutilation or distortion. "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference. We really are concerned about precedents chiefly when their facts differ somewhat from the facts in the case at bar. Then there is a gulf or hiatus that has to be bridged by a concern for principle and a concern for practical results and practical wisdom." Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation, 36. This attitude toward precedent underlies the whole system of our case law. It was thus summarized by Mr. Justice Brandeis: "It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation and that an expression in an opinion yields later to the impact of facts unforeseen." Jaybird Mining Co. v. Weir, 271 U.S. 609, 619 (dissenting). Especially is this attitude to be observed in constitutional controversies.

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

"If the right to trial by jury were a fundamental right which goes wherever the jurisdiction of the United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state such a proposition demonstrates the impossibility of carrying it into practice. Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unknown to them and unsuited to their needs. We do not think it was intended, in giving power to Congress to make regulations for the territories, to hamper its exercise with this condition." Dorr v. United States, 195 U.S. 138, 148.

The "fundamental right" test is the one which the Court has consistently enunciated in the long series of cases — e. g., American Ins. Co. v. Canter, 1 Pet. 511; De Lima v. Bidwell, 182 U.S. 1; Downes v. Bidwell, 182 U.S. 244; Dorr v. United States, 195 U.S. 138, Balzac v. Porto Rico, 258 U.S. 298 — dealing with claims of constitutional restrictions on the power of Congress to "make all needful Rules and Regulations" for governing the unincorporated territories. The process of decision appropriate to the problem led to a detailed examination of the relation of the specific "Territory" to the United States. This examination, in its similarity to analysis in terms of "due process," is essentially the same as that to be made in the present cases in weighing congressional power to make "Rules for the Government and Regulation of the land and naval Forces" against the safeguards of Article III and the Fifth and Sixth Amendments.

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

The Court last Term relied on a second source of authority, the consular court case, In re Ross, 140 U.S. 453. Pursuant to a treaty with Japan, Ross, a British subject but a member of the crew of a United States ship, was tried and convicted in a consular court in Yokohama for murder of a fellow seaman while the ship was in Yokohama harbor. His application for a writ of habeas corpus to a United States Circuit Court was denied, 44 F. 185, and on appeal here, the judgment was affirmed. This Court set forth the ground of the Circuit Court, "the long and uniform acquiescence by the executive, administrative and legislative departments of the government in the validity of the legislation," 140 U.S., at 461, and then stated:

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

. . . . .

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

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

". . . By the Constitution a government is ordained and established `for the United States of America,' and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad. . . . The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. . . ." 140 U.S., at 462-464.

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

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

"The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. . . . In other than Christian countries they were, by treaty stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offences. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people." 140 U.S., at 462-463.

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

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

The emergence of the nation-state in Europe and the growth of the doctrine of absolute territorial sovereignty changed the nature of extraterritorial rights. No longer were strangers to be denied the advantages of local law. Indeed, territorial sovereignty meant the exercise of sovereignty over all residents within the borders of the state, and the system of extraterritorial consular jurisdiction tended to die out among Christian nations in the 18th and 19th centuries. But a new justification was found for the continuation of that jurisdiction in those countries whose systems of justice were considered inferior, and it was this strong feeling with respect to Moslem and Far Eastern countries that was reflected, as we have seen, in the Ross opinion.

Until 1842, China had asserted control over all foreigners within its territory, Shih Shun Liu, op. cit. supra, 76-89, but, as a result of the Opium War, Great Britain negotiated a treaty with China whereby she obtained consular offices in five open ports and was granted extraterritorial rights over her citizens. On July 3, 1844, Caleb Cushing negotiated a similar treaty on behalf of the United States. 8 Stat. 592. In a letter to Secretary of State Calhoun, he explained: "I entered China with the formed general conviction that the United States ought not to concede to any foreign state, under any circumstances, jurisdiction over the life and liberty of a citizen of the United States, unless that foreign state be of our own family of nations, — in a word, a Christian state." Quoted in 7 Op. Atty. Gen. 495, 496-497. Later treaties continued the extraterritorial rights of the United States, and the Treaty of 1903 contained the following article demonstrating the purpose of those rights:

"The Government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of Western nations, the United States agrees to give every assistance to such reform and will also be prepared to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in doing so." 33 Stat. 2208, 2215.

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

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

"Jurisdiction in both criminal and civil matters shall, in all cases, be exercised and enforced in conformity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the extent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies." Rev. Stat. § 4086.

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

The number of people subject to the jurisdiction of these courts during their most active periods appears to have been fairly small. In the Chronicle Directory for China, Japan, the Philippines, for the year 1870, there is a listing of the total number of foreign, not just United States, residents in these three places. The list is 81 pages long, with a total of some 4,500 persons. (Pp. 54-134.) This same publication gives the following information about Japan: "The number of foreigners settled in Japan is as yet very small. At the end of the year 1862, the foreign community at Kanagawa, the principal of the three ports of Japan open to aliens, consisted of . . . thirty-eight Americans . . . and in the latter part of 1864 the permanent foreign residents at Kanagawa had increased to 300, not counting soldiers, of which number . . . about 80 [were] Americans . . . . At Nagasaki, the second port of Japan thrown open to foreign trade by the government, the number of alien settlers was as follows on the 1st of January, 1866: — . . . American citizens 32 . . . . A third port opened to European and American traders, that of Hakodadi, in the north of Japan, was deserted, after a lengthened trial, by nearly all the foreign merchants settled there . . . ." (Appendix, p. 353.) The Statesman's Yearbook of 1890 shows: China at the end of 1888: 1,020 Americans (p. 411); Japan in 1887: 711 Americans (p. 709); Morocco, 1889 estimate: "The number of Christians is very small, not exceeding 1,500." (P. 739.) The Statesman's Yearbook of 1901 shows: China at the end of 1899: 2,335 Americans (p. 484); Japan, December 31, 1898, just before the termination of our extraterritorial rights: 1,165 Americans (p. 809); Morocco: "The number of Christians does not exceed 6,000; the Christian population of Tangier alone probably amounts to 5,000." (P. 851.) These figures of course do not include those civilians temporarily in the country coming within consular jurisdiction.

The consular court jurisdiction, then, was exercised in countries whose legal systems at the time were considered so inferior that justice could not be obtained in them by our citizens. The existence of these courts was based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in those countries. The Ross case, therefore, arose out of, and rests on, very special, confined circumstances, and cannot be applied automatically to the present situation, involving hundreds of thousands of American citizens in countries with civilized systems of justice. If Congress had established consular courts or some other non-military procedure for trial that did not contain all the protections afforded by Article III and the Fifth and Sixth Amendments for the trial of civilian dependents of military personnel abroad, we would be forced to a detailed analysis of the situation of the civilian dependent population abroad in deciding whether the Ross case should be extended to cover such a case. It is not necessary to do this in the present cases in view of our decision that the form of trial here provided cannot constitutionally be justified.

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

MR. JUSTICE HARLAN, concurring in the result.

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

Since I am the only one among today's majority who joined in the Court's opinions of June 11, 1956, which sustained the court-martial jurisdiction in these cases, 351 U.S. 470, 487, I think it appropriate to state the reasons which led to my voting, first, to rehear these cases, 352 U.S. 901, and, now, to strike down that jurisdiction.

The petitions for rehearing which were filed last summer afforded an opportunity for a greater degree of reflection upon the difficult issues involved in these cases than, at least for me, was possible in the short interval between the argument and decision of the cases in the closing days of last Term. As a result I became satisfied that this court-martial jurisdiction could in any event not be sustained upon the reasoning of our prior opinion. In essence, that reasoning was this: (1) Under In re Ross, 140 U.S. 453, and the Insular Cases, the requirement of a trial by an Article III court and the other specific safeguards of Article III and the Fifth and Sixth Amendments are not applicable to the trial of American citizens outside the United States; (2) there is thus no express constitutional prohibition against the use of courts-martial for such trials abroad; (3) the choice of a court-martial in cases such as these was "reasonable," because of these women's connection with the military, and therefore satisfied due process; (4) the court-martial jurisdiction was thus constitutional. I have since concluded that this analysis was not sound, for two reasons:

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

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

I come then to the question whether this court-martial jurisdiction can be justified as an exercise of Congress' Article I power to regulate the armed forces.

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

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

. . . . .

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

. . . . .

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

No less an authority than Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, has taught us that the Necessary and Proper Clause is to be read with all the powers of Congress, so that "where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." Id., at 423.

I think it no answer to say, as my brother BLACK does, that "having run up against the steadfast bulwark of the Bill of Rights, the Necessary and Proper Clause cannot extend the scope of [Art. I] Clause 14." For that simply begs the question as to whether there is such a collision, an issue to which I address myself below.

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

I assume, for the moment, therefore, that we may disregard other limiting provisions of the Constitution, and examine the Article I power in isolation. So viewed, I do not think the courts-martial of these army wives can be said to be an arbitrary extension of congressional power.

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

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

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

It seems to me clear on such a basis that these dependents, when sent overseas by the Government, become pro tanto a part of the military community. I cannot say, therefore, that it is irrational or arbitrary for Congress to subject them to military discipline. I do not deal now, of course, with the problem of alternatives to court-martial jurisdiction; all that needs to be established at this stage is that, viewing Art. I, § 8, cl. 14 in isolation, subjection of civilian dependents overseas to court-martial jurisdiction can in no wise be deemed unrelated to the power of Congress to make all necessary and proper laws to insure the effective governance of our overseas land and naval forces.

I turn now to the other side of the coin. For no matter how practical and how reasonable this jurisdiction might be, it still cannot be sustained if the Constitution guarantees to these army wives a trial in an Article III court, with indictment by grand jury and jury trial as provided by the Fifth and Sixth Amendments.

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

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

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

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

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

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

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

The Court today releases tow women from prosecution though the evidence shows that they brutally killed their husbands, both American soldiers, while stationed with them in quarters furnished by our armed forces on its military installations in foreign lands. In turning these women free, it declares unconstitutional an important section of an Act of Congress governing our armed forces. Furthermore, four of my brothers would specifically over-rule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross, 140 U.S. 453 (1891), cited by this Court with approval in many opinions and as late as 1929 by a unanimous Court in Ex parte Bakelite Corp., 279 U.S. 438, 451. And, finally, the Court reverses, sets aside, and overrules two majority opinions and judgments of this Court in these same cases, reported in 351 U.S., at 470 and 487, and entered on June 11, 1956, less than 12 months ago. In substitute therefor it enters no opinion whatever for the Court. It is unable to muster a majority. Instead, there are handed down three opinions. But, worst of all, it gives no authoritative guidance as to what, if anything, the Executive or the Congress may do to remedy the distressing situation in which they now find themselves.

MR. JUSTICE BURTON and I remain convinced that the former opinions of the Court are correct and that they set forth valid constitutional doctrine under the long-recognized cases of this Court. The opinions were neither written nor agreed to in haste and they reflect the consensus of the majority reached after thorough discussion at many conferences. In fact, the cases were here longer both before and after argument than many of the cases we decide. We adhere to the views there expressed since we are convinced that through them we were neither "mortgaging the future," as is claimed, nor foreclosing the present, as does the judgment today. We do not include a discussion of the theory upon which those former judgments were entered because we are satisfied with its handling in the earlier opinions. See 351 U.S., at 470 and 487.

Before discussing the power of the Congress under Art. I, § 8, cl. 14, of the constitution it is well to take our bearings. These cases do not involve the jurisdiction of a military court-martial sitting within the territorial limits of the United States. Nor are they concerned with the power of the Government to make treaties or the legal relationship between treaties and the Constitution. Nor are they concerned with the power of Congress to provide for the trial of Americans sojourning, touring, or temporarily residing in foreign nations. Essentially, we are to determine only whether the civilian dependents of American servicemen may constitutionally be tried by an American military court-martial in a foreign country for an offense committed in that country. Congress has provided in Article 2 (11) of the Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 552 (11), that they shall be so tried in those countries with which we have an implementing treaty. The question therefore is whether this enactment is reasonably related to the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces." U.S. Const., Art. I, § 8, cl. 14.

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

"The existing articles are further defective in that they do not permit the disciplining of these three classes of camp followers in time of peace in places to which the civil jurisdiction of the United States does not extend and where it is contrary to international policy to subject such persons to the local jurisdiction, or where, for other reasons, the law of the local jurisdiction is not applicable, thus leaving these classes practically without liability to punishment for their unlawful acts under such circumstances — as, for example, . . . where such forces so accompanied are engaged in the nonhostile occupation of foreign territory, as was the case during the intervention of 1906-7 in Cuba." S. Rep. No. 130, 64th Cong., 1st Sess. 37-38.

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

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

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

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

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

"[I]t is readily ascertainable that black market transactions, trafficking in habit-forming drugs, unlawful currency circulation, promotion of illicit sex relations, and a myriad of other crimes which may be perpetrated by persons closely connected with one of the services, could have a direct and forceful impact on the efficiency and discipline of the command. One need only view the volume of business transacted by military courts involving, for instance, the sale and use of narcotics in the Far East, to be shocked into a realization of the truth of the previous statement. If the Services have no power within their own system to punish that type of offender, then indeed overseas crime between civilians and military personnel will flourish and that amongst civilians will thrive unabated and untouched. A few civilians plying an unlawful trade in military communities can, without fail, impair the discipline and combat readiness of a unit. At best, the detection and prosecution of crime is a difficult and time-consuming business, and we have grave doubts that, in faraway lands, the foreign governments will help the cause of a military commander by investigating the seller or user of habit-forming drugs, or assist him in deterring American civilians from stealing from their compatriots, or their Government, or from misusing its property." 6 U.S.C. M. A., at 800, 21 C. M. R., at 122.

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

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

"It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving ex-servicemen the benefit of a civilian court trial when they are actually civilians. . . . Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury." Id., at 22-23.

These women were as much "a part" of the military installation as were their husbands. Upon attack by an enemy they would be so treated; all foreign governments so recognized them at all times; and, in addition, it has been clearly shown, unlike in Toth, that "the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed" by excluding them from the provisions of the Uniform Code. Every single one of our major military commanders over the world has filed a statement to this effect in this case. We should not substitute our views as to this necessity for the views of those charged with the responsibility of the protection of such far-flung outposts of the free world. The former minority, however, repudiates this underlying basis of the opinion in Toth, namely, that where disciplinary measures are necessary to the regulation of the armed forces the Congress does have constitutional power to make rules. In my opinion the rules it has made are necessary to the regulation of the land and naval forces and the means chosen, the Uniform Code, is in no way an unreasonable one.

There remains the further consideration of whether this provision is "`the least possible power adequate to the end proposed.'" United States ex rel. Toth v. Quarles, supra, at 23. This is the strict standard by which we determine the scope of constitutional power of Congress to authorize trial by court-martial. A study of the problem clearly indicates that the use of the Uniform Code of Military Justice was really the only practicable alternative available.

While it was conceded before this Court that Congress could have established a system of territorial or consular courts to try offenses committed by civilian dependents abroad, the action of four of my brothers who would overrule and two who would impair the vitality of In re Ross, supra, places this alternative in jeopardy. Territorial courts have been used by our Government for over a century and have always received the sanction of this Court until today. However, in the light of all of the opinions of the former minority here, the use of a system of territorial or consular courts is now out of the question. Moreover, Congress probably had concluded to abandon this system before the Uniform Code was adopted, since a short time thereafter the jurisdiction of the last of our territorial or consular courts was terminated. 70 Stat. 773.

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

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

The only alternative remaining — probably the alternative that the Congress will now be forced to choose — is that Americans committing offenses on foreign soil be tried by the courts of the country in which the offense is committed. Foreign courts have exclusive jurisdiction under the principles of international law and many nations enjoy concurrent jurisdiction with the American military authorities pursuant to Article VII of the Agreement Regarding Status of Forces of Parties to the North Atlantic Treaty. Where the American military authorities do have jurisdiction, it is only by mutual agreement with the foreign sovereign concerned and pursuant to carefully drawn agreements conditioned on trial by the American military authorities. Typical of these agreements was the one concluded between the United States and Japan on February 28, 1952, and in force at the time one of these cases arose. Under this and like agreements, the jurisdiction so ceded to the United States military courts will surely be withdrawn if the services are impotent to exercise it. It is clear that trial before an American court-martial in which the fundamentals of due process are observed is preferable to leaving American servicemen and their dependents to the widely varying standards of justice in foreign courts throughout the world. Under these circumstances it is untenable to say that Congress could have exercised a lesser power adequate to the end proposed.

My brothers who are concurring in the result seem to find some comfort in that for the present they void an Act of Congress only as to capital cases. I find no distinction in the Constitution between capital and other cases. In fact, at argument all parties admitted there could be no valid difference. My brothers are careful not to say that they would uphold the Act as to offenses less than capital. They unfortunately leave that decision for another day. This is disastrous to proper judicial administration as well as to law enforcement. The Congress and the Executive Department are entitled to know whether a court-martial may be constitutionally utilized to try an offense less than capital. If so, then all that is necessary is to eliminate capital punishment insofar as Article 2 (11) offenses are concerned. I deeply regret that the former minority does not, now that it has become the majority, perform the high duty that circumstance requires. Both the Congress and the Executive are left only to conjecture as to whether they should "sack" Article 2 (11) and require all dependents to return and remain within this country or simply eliminate capital punishment from all offenses under the Article. The morale of our troops may prevent the former and certainly the abstention of this Court prohibits the latter. All that remains is for the dependents of our soldiers to be prosecuted in foreign courts, an unhappy prospect not only for them but for all of us.