Constitution and Court-Martial of Civilians Accompanying The Armed Forces A Preliminary Analysis

Stanford Law Review
The Constitution and Court-Martial of Civilians Accompanying the Armed Forces. A

Preliminary Analysis
Author(s): Robert Girard
Source: Stanford Law Review, Vol. 13, No. 3 (May, 1961), pp. 461-521
Published by: Stanford Law Review
Stable URL: http://www.jstor.org/stable/1226677
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The Constitution and Court-Martial of
Civilians Accompanying the Armed
Forces-A Preliminary Analysis
ROBERT GIRARD
I. THE GENERAL CONTEXT
The appropriate role of the military in the scheme of things

has anciently been one of civilization's most important and per-
plexing problems. Across the ages comes Plato's admonition:
To keep watch-dogs, who, from want of discipline or hunger, or
some evil habit or other, would turn upon the sheep and worry them,
and behave not like dogs but wolves, would be a foul and monstrous
thing in a shepherd?
Truly monstrous ....
And therefore every care must be taken that our auxiliaries, being
stronger than our citizens, may not grow to be too much for them and
become savage tyrants instead of friends and allies?
Yes, great care should be taken.'
Centuries later, however, one finds Madison dolefully recording:

[T]he liberties of Rome proved the final victim to her military tri-
umphs; and . . . the liberties of Europe, as far as they ever existed, have,
with few exceptions, been the price of her military establishments.2
In our own troubled times, we are told by an able scholar:

The outstanding aspect of civil-military relations in the decade after
World War II was the heightened and persistent peacetime tension
between military imperatives and American liberal society ....
The basic issue raised was: how can a liberal society provide for its
military security when this requires the maintenance of professional
military forces and institutions fundamentally at odds with liberalism.3
Somewhat fortuitously, the United States has been spared many

of the critical problems which the military has posed for other so-
cieties. Armed threat to the nation's well-being was remote or
puny for more than a century after its birth, apart from several spec-
*A.B., University of Washington, 1953; LL.B., Harvard University, 1956; Assistant
Professor of Law, Stanford University.
1. I THE DIALOGUES OF PLATO 680-81 (Jowett trans. 1892).
2. THE FEDERALIST No. 41, at 321 (Hamilton ed. 1880).
3. HUNTINGTON, THE SOLDIER AND THE STATE 345-46 (1957).
46I
462 STANFORD LAW REVIEW [Vol. I3: Page 461
tacular but brief eruptions. In a society dominated by liberal prin-

ciples need was therefore felt for only a miniscule professional mili-
tary establishment. The demands of this establishment were small,
its functions narrowly circumscribed, the influence of its officer
corps slight, and reliance on nonprofessional militia and volunteers
in time of crisis prevalent.4
Conditions have changed profoundly, however, during the past
generation. The nation has not only been totally involved but
gravely imperiled by the most extensive war in history. At present
we are engaged in a grim, protracted struggle with another for-
midable adversary. The threat of war, without warning and in-
comprehensibly devastating, looms ominously. The old security,
so natural, so easy, is gone. We now deem it necessary to maintain
a huge military establishment-an establishment claiming a sub-
stantial share of our national wealth with several million persons di-
rectly in its control. Under such circumstances the functions and
influence of the "specialist in violence" inevitably expand. Prob-
lems concerning the relationship of the military to the balance of
society take on new dimensions, new difficulty, new urgency.
In the United States the traditional view of the proper relation-
ship between civilian and military has been epitomized by the
phrase "civilian control."5 This phrase is highly imprecise, of course,
frequently symbolizing quite different things to different users.
But like many political and constitutional maxims it does convey
a mood, an attitude, which has not been without significance in the
evolution of our society. Minimally, it suggests that the general
size and nature of the armed forces as well as the ends for which
they are employed should be determined by civilian authority.
Many thoughtful persons perceive more. Specifically, military rep-
resentatives should not hold numerous positions of civil power nor
exert undue influence upon the civilians who do; military institu-
tions and values should not be permitted appreciably to infiltrate
civilian society; the jurisdiction of military tribunals over the per-
son or property of citizens should be narrowly circumscribed.6 This
4. See generally GANOE, THE HISTORY OF THE UNITED STATES ARMY (1924). Secretary
of State Bryan is reputed to have said in 1915 that "preparedness was unnecessary because
in case of hostile attack a million men would leap from the plow like Cincinnatus." CIVIL-
MILITARY RELATIONSHIPS IN AMERICAN LIFE 128 (Kerwin ed. 1948).
5. See, e.g., id., passim; CAL. CONST. art I, ? 12 ("[T]he military shall be subordi-
nate to the civil power. No standing army shall be kept up by this State in time of peace.").
6. By no means are all willing to go this far. See HUNTINGTON, op. cit. supra note 3,
at 455-66. The skeptic might inquire to what extent such a broad view of "civilian control"
May I96I] COURT-MARTIAL JURISDICTION 463
article is concerned with one facet of this last aspect of "civilian

control"-namely, the power of courts-martial to punish civilians
having a direct functional relationship to the armed forces.
The jurisdiction of military tribunals can be divided into three
rough categories according to the source of law applied-"military
law," the "law of war," and "martial rule."7 The last, martial rule,
refers to situations where civilian institutions for maintaining order
and justice have more or less ceased functioning because of dis-
ruptive events, and the armed forces have been directed by ap-
propriate civilian authority to exercise power in their stead.8 Law-
fully, martial rule may vary in its nature and extent as strict neces-
sity demands. It may range from mere apprehension or confine-
ment of offenders for purpose of trial by civil authorities to the
creation and punishment of capital offenses by military authorities.9
The law of war, on the other hand, is appropriately viewed as a
body of standards developed from international agreements and
practices which govern the status, rights, and duties of enemy na-
tions and individual combatants during hostilities.'? To some ex-
tent-not yet accurately charted-this law can be administered
under the Constitution by military tribunals which do not observe
all of the requirements of civilian criminal trials. Military law
differs from both martial rule and the law of war in several respects.
First, it pertains to rules for the government and regulation of the
armed forces, the military society, not persons in strife-ridden areas
or belligerents generally. On the other hand, it is applicable in time
of peace as well as war, in areas of tranquility as well as chaos.l1
rests on a stereotype of the military that no longer carries much relation to reality, what-
ever once may have been the case. He might argue that our armed forces have been affected
by a stream of liberalizing forces-for example, mass conscription of the civilian population
for short terms of service; the burgeoning importance of science, technology, and profes-
sional skills in defense matters; the scrutiny of an interested public in times when problems
of security are high in the national consciousness.
7. See FAIRMAN, THE LAW OF MARTIAL RULE 28-49 (2d ed. 1943); 2 WINTHROP,
MILITARY LAW AND PRECEDENTS 1203-4 (2d ed. 1896). See generally Madsen v. Kinsella,
343 U.S. 341 (1952); Ex parte Quirin, 317 U.S. 1 (1942); Ex parte Milligan, 71 U.S. (4
Wall.) 2, 141 (1866) (Chase, C.J., concurring).
8. See FAIRMAN, op. cit. supra note 6, at 29.
9. "Martial law is elastic,-easily adapted to varying circumstances. It may operate
to the total suspension or overthrow of the criminal authority; or its touch may be light,
scarcely felt or not felt at all by the mass of the people, while the courts go on in their
ordinary course, and the business of the community flows in its accustomed channels."
1 BISHOP, NEW CRIMINAL LAW 26 (1892); see FAIRMAN, op. cit. supra note 6, at 45-49.
10. See generally Madsen v. Kinsella, 343 U.S. 341 (1952); In re Yamashita, 327
U.S. 1 (1946); Ex parte Quirin, 317 U.S. 1 (1942); Kaplan, Constitutional Limitations on
Trials by Military Commissions, 92 U. PA. L. REV. 119, 272 (1943-1944).
11. See 1 WINTHROP, op. cit. supra note 7, at 4; Ex parte Milligan, 71 U.S. (4 Wall.)
2, 141-42 (1866) (concurring opinion).
464 STANFORD LAW REVIEW [Vol. 13: Page 461
This is the realm of the court-martial and the part of military jus-
tice with which we are directly concerned here.
Since World War II the United States has found it necessary
to maintain military bases in various foreign countries throughout
the world. Large numbers of military personnel have been de-
ployed abroad to staff these bases. To obtain needed skills as well
as for reasons of economy approximately 25,000 civilian employees
have been sent overseas to assist them. Far more significant in
terms of the numbers involved, about 450,000 civilian dependents
of servicemen and employees are now accompanying these forces
outside the United States.12 The government has encouraged this
migration not only for humanitarian reasons but to raise morale
among servicemen.3 These large contingents of civilians produce
significant problems of order and of respect for the interests of
others-problems materially affecting both the United States and
the foreign country where they are stationed.
Under international law the foreign state has full criminal juris-
diction over the visiting American contingent in the absence of
an effective agreement to the contrary.14 Similarly, the United
States can extend its criminal laws to Americans present in foreign
countries,15 although it can hardly enforce these laws there without
the consent and cooperation of foreign governments. Because of
apparent obstacles to trial in the United States and assumed inade-
quacies of foreign legal systems, the United States has sought and
obtained jurisdictional concessions from at least fifty nations where
we have troops.16 These "status of forces agreements" normally
provide that when an American serviceman or civilian accompany-
ing the forces, has committed an offense against the law of either
12. See Brief for the Petitioners, pp. 12, 71, 110-11, McElroy v. United States ex rel.
Guagliardo, 361 U.S. 281 (1960).
13. Reid v. Covert, 354 U.S. 1, 83, 88-89 (1957) (dissenting opinion); see Brief for
the Petitioners, supra note 12, at 72.
14. See Wilson v. Girard, 354 U.S. 524 (1957); Schwartz, International Law and
the NATO Status of Forces Agreement, 53 COLUM. L. REV. 1041-92 (1953).
15. See Blackmer v. United States, 284 U.S. 421, 437 n.2 (1932) (citing authorities);
RESEARCH IN INTERNATIONAL LAW, JURISDICTION WITH RESPECT TO CRIME 519 (29 AM. J.
INT'L L. SUPP., 1935) ("The competence of the State to prosecute and punish its nationals
on the sole basis of their nationality is universally conceded.").
16. Hearings on H. 1. Res. 309 and Similar Measures Before the House Committee
on Foreign Affairs, 84th Cong., 1st Sess., pt. 1, 34, 159 (1955). The most significant of
these arrangements is that entered into with the North Atlantic Treaty powers, Agree-
ment Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces,
June 19, 1951, [1953] 4(2) U.S.T. & O.I.A. 1792, T.I.A.S. 2846 [hereinafter cited as
NATO Status of Forces Agreement]. See generally SNEE & PYE, STATUS OF FORCES AGREE-
MENTS: CRIMINAL JURISDICTION (1957); authorities collected id. at 9, n.14; Note, Criminal
Jurisdiction over American Armed Forces Abroad, 70 HARV. L. REV. 1043 (1957).
May I96 ] COURT-MARTIAL JURISDICTION 465
the foreign country or the military law of the United States, the
nation whose law has been infringed is authorized to exert criminal
jurisdiction over the offender.l7 American jurisdiction is to be
exercised by our military authorities.l Where conduct is con-
demned prima facie by both foreign law and United States military
law jurisdiction is concurrent.'9 This country has the "primary
right to exercise jurisdiction," however, with respect to American
military personnel and civilian employees (not dependents) for
offenses arising in the performance of official duty, or for offenses
solely against the property or security of the United States or the
property or person of another member of the visiting contingent.20
In all other cases foreign authority is primary. If the foreign gov-
ernment waives its jurisdiction, United States military courts can
try the accused.2' As a matter of fact, waiver by the foreign govern-
ment has been common.22
Utilizing jurisdictional concessions like those provided by the
status of forces agreements, the Uniform Code of Military Justice
declares that its provisions are applicable "in all places"23 and ex-
tend not only to members of the armed services but, inter alia, to
(Io) . . . persons serving with or accompanying an armed force in the
field [in time of war];24
and, more significantly for present purposes, to

(I) . . . persons serving with, employed by, or accompanying the
armed forces outside the United States and outside the following: the
Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and
the Virgin Islands.25
The latter provision has been in effect-with minor modifica-

tions-since the First World War,26 but its constitutionality as ap-
plied to civilians was only recently challenged in the courts. Super-
17. See, e.g., NATO Status of Forces Agreement art. VII, f 2.
18. Id. 1 (a).
19. Id. '1.
20. Id. '3.
21. Id. '3(c).
22. From December 1, 1958, to November 30, 1959, for example, waiver was obtained
in approximately two thirds of the cases where foreign tribunals had primary jurisdiction.
See Hearing on Operation of Article VII, NATO Status of Forces Treaty, Before a Sub-
committee of the Senate Committee on Armed Services, 86th Cong., 2d Sess. 12 (1960);
Note, Criminal Jurisdiction Over American Armed Forces Abroad, 70 HARV. L. REV. 1043,
1044-46 (1957).
23. 10 U.S.C. ? 805 (1958).
24. 10 U.S.C. ? 802(10) (1958).
25. 10 U.S.C. ? 802(11) (Supp. I, 1959).
26. See text accompanying notes 150-54 infra.
ficially, this seems surprising in view of what might fairly be char-

acterized as the nation's traditional aversion to military jurisdiction
over civilians, an aversion reflected in judicial decisions. But only
in the last decade have civilian employees or dependents gone
abroad in substantial numbers in peacetime with the armed forces,
except in occupied enemy territory where the Supreme Court early
held that military occupation courts could exercise jurisdiction
under the law of war over all present.27
II. THE RECENT DECISIONS
In any event it came as a rude surprise to the defense establish-

ment when a district court in I955, in Reid v. Covert,2 ruled that
courts-martial could not constitutionally try a civilian dependent
who had killed her serviceman husband while accompanying the
armed forces abroad. In this case the dependent had been tried
by an Air Force court-martial in England and sentenced to life im-
prisonment. The Court of Military Appeals upset her conviction
and while she was being held in the District of Columbia pending
retrial by the military she petitioned for release pursuant to a writ
of habeas corpus. Brushing aside government arguments, Judge
Tamm granted the petitioner her freedom, quite prophetically
on the broad ground that under the Constitution "a civilian is
entitled to a civilian trial"-at least in peacetime. The Government
appealed directly to the Supreme Court.29
Judge Tamm placed primary reliance on United States ex rel.
Toth v. Quarles30 then recently decided, which apparently had
also prompted the petition for release.31 In Toth, a cause celebre
in its own right, the Supreme Court held that the Constitution
forbade military trial of a former serviceman for violation of mili-
tary law committed while a member of the service but not prose-
cuted until after discharge. This, though the offense was commit-
ted in a foreign country, Toth was not subject to trial in any other
court, and the military had seized and removed him from the
United States for court-martial at the place of transgression.
27. See the authorities collected by Mr. Justice Burton in Madsen v. Kinsella, 343
U.S. 341, 346-48 nn.8-13 (1952).
28. H.C. 87-55, D.D.C., Nov. 22, 1955.
29. Under 28 U.S.C. ? 1252 (1958). Probable jurisdiction noted, 350 U.S. 985
(1956).
30. 350 U.S. 11 (1955).
31. Toth was decided on November 7, 1955. The petition in Reid v. Covert was
filed Nov. 17, 1955, and relied heavily on the decision and reasoning in Toth.
Shortly after Judge Tamm's decision, a similar case arose in

the District Court for West Virginia. Again, a dependent wife
had killed her serviceman husband overseas, this time while ac-
companying the armed forces in Japan. She had been convicted
of murder by an army court-martial, sentenced to life imprison-
ment, and confined in a federal penitentiary in West Virginia.
Judge Moore refused to order her released.32 He acknowledged
Judge Tamm's decision in Reid v. Covert, but declined to follow it.
He thought Toth readily distinguishable, pointing out that Toth's
connection with the military had been severed and that he had
returned to civilian life in this country when the military attempted
to try him, whereas the wife was accompanying the armed forces
overseas at the time of her trial. He ruled that Congress' power
under article I, section 8, of the Constitution to make rules "neces-
sary and proper" for the government and regulation of the armed
forces authorized extension of military jurisdiction to dependents
accompanying the forces;33 and that the Bill of Rights and other
constitutional safeguards raised no barriers. While an appeal was
pending in the court of appeals the Supreme Court granted cer-
tiorari and scheduled the case for argument with Reid v. Covert.
In June I956 the Court handed down decisions in the two
cases, upholding military jurisdiction under article 2(II) of the
uniform code over the wives.34 The majority, in opinions by Mr.
Justice Clark, reasoned that the right to trial by jury after indict-
ment by grand jury and other safeguards of article III and the fifth
and sixth amendments did not apply to trials by the American Gov-
ernment in foreign lands for offenses committed there.35 Accord-
32. Krueger v. Kinsella, 137 F. Supp. 806 (S.D.W. Va. 1956), cert. granted, 350
U.S. 986 (1957).
33. See U.S. CONST. art. I, ? 8, cl. 14: "Congress shall have power . . . to make
Rules for the Government and Regulation of the land and naval Forces." Other pro-
visions of art. I, ? 8, authorize Congress: "To declare war . . . To raise and support
Armies . . . To provide and maintain a Navy . . . To make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers ...."
34. Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956).
35. "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 com-
mitted; but when not committed within any State, the Trial shall be at such Place or
Places as the Congress may by Law have directed." U.S. CONST. art. III, ? 2, cl. 3.
"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 ...."
U.S. CONST. amend. V.
"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 . ." U.S.
CONST. amend. VI.
ingly Congress could provide for the trial of such offenses in any
manner that it thought appropriate so long as the methods chosen
were generally compatible with due process. Military trials as now
conducted were neither arbitrary nor unreasonable, at least when
applied to persons accompanying the armed forces overseas.36
Mr. Chief Justice Warren and Justices Black and Douglas dis-
sented in a brief statement protesting this "extension" of military
jurisdiction to civilians. In their view, "The military [had been]
. . . given new powers not hitherto thought consistent with our
scheme of government. The questions raised [were] ... complex,
the remedy drastic, and the consequences far reaching ...." 37
Therefore they needed more time than was available in "these clos-
ing days of the Term" to write their dissenting views. On similar
grounds Mr. Justice Frankfurter reserved judgment.38
To support its conclusion, the majority relied primarily on
In re Ross39 and the "Insular Cases."40 In re Ross involved a
British subject who had killed a fellow seaman while serving
on an American ship in Japanese territorial waters. Pursuant
to treaties granting the United States extraterritorial rights,
Congress at that time had authorized trial of persons subject to
United States jurisdiction by American consular officials in cer-
tain "uncivilized" foreign countries for offenses against the laws
of the United States.4 Ross was tried by consular court in
Japan and convicted. The Supreme Court ruled that his convic-
tion and punishment were not illegal. Among other things it
stated:
By the Constitution a government is ordained and established "for the
United States of America," and not for countries outside of their limits.
36. "The underlying premise of the . . . [Court's] opinion, it seems to me, [was]
? . . 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." Reid v. Covert, 354 U.S. 1, 66 (1957) (Harlan, J., concurring).
37. Kinsella v. Krueger, 351 U.S. 470, 485-86 (1956).
38. "Grave issues affecting the status of American civilians throughout the world
are raised by these cases; they are made graver by the arguments on which the Court
finds it necessary to rely in reaching its result. Doubtless because of the pressure under
which the Court works during its closing weeks, these arguments have been merely
adumbrated in its opinion. To deal adequately with them, however, demands of those
to whom they are not persuasive more time than has been available ...." Id. at 483
(concurring opinion). The Justice added, "Reflection is a slow process. Wisdom, like
good wine, requires maturing." Id. at 485.
39. 140 U.S. 453 (1891).
40. Balzac v. Porto Rico, 258 U.S. 298 (1922); Dorr v. United States, 195 U.S. 138
(1904); Hawaii v. Mankichi, 190 U.S. 197 (1903); Downes v. Bidwell, 182 U.S. 244
(1901).
41. Act of June 22, 1860, ch. 179, ? 4, 12 Stat. 73. For the origin, history, and
The guarantees it affords against accusation of capital or infamous crimes,

except by indictment or presentment by a grand jury, and for an im-
partial trial by 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 so-
journers abroad. . . . The Constitution can have no operation in another
country.42
The Insular Cases were the offspring of American expansion

to noncontiguous territories as a result of success in the war with
Spain and the annexation of Hawaii. The issue was raised whether
the United States could exercise criminal jurisdiction in these "ex-
otic" territories without observing certain procedural safeguards
set forth in the Constitution, particularly trial by jury after indict-
ment by grand jury. In a series of decisions the Court declared
that "fundamental" safeguards must be honored but concluded
that trial by jury and indictment by grand jury did not fall within
this category and therefore were not mandatory.43
Returning to Reid v. Covert, counsel for the dependent wives
filed an aggressive petition for rehearing during the summer fol-
lowing decision. The petition contended that the jurisdiction
challenged must be sustained, if at all, under the provisions of
article I, section 8, which the majority had found it unnecessary
to consider. "The concept of presenting Hamlet without the Prince
of Denmark doubtless has fascination."44 But action by a govern-
ment of delegated powers could not be justified merely because
the action was not expressly prohibited by the Constitution and
was abstractly reasonable. The petition was granted; Mr. Justice
Harlan joined Mr. Justice Frankfurter and the three dissenters in
voting for a rehearing.45
In June I957, a month of dramatic decisions, the judgments of
a year before were withdrawn. The Court held that civilian de-
pendents accompanying the armed forces without the United States
in time of peace could not constitutionally be tried by military
courts for capital offenses.46 There was no opinion for the Court.
nature of the consular power see Reid v. Covert, 351 U.S. 1, 10-12 (1957); id. at 54-64
(Frankfurter, J., concurring).
42. In re Ross, 140 U.S. 453, 464 (1891).
43. Once the territory became "incorporated" into the United States, however, these
safeguards of the Constitution were applicable. See Rassmussen v. United States, 197 U.S.
516, 528 (1905).
44. Appellee's Brief on Petition for Rehearing, p. 2, Reid v. Covert, 351 U.S. 487
(1956).
45. 352 U.S. 901 (1956).
46. Reid v. Covert, 354 U.S. 1, 5, 38-40 (1957).
470 STANFORD LAW REVIEW [Vol. 13: Page 46I
Mr. Justice Black announced the judgment in an opinion joined by

the Chief Justice, Mr. Justice Douglas and Mr. Justice Brennan
(who had replaced Mr. Justice Minton prior to reargument).
Justices Frankfurter and Harlan concurred separately in the re-
sult, and Mr. Justice Clark, joined by Mr. Justice Burton, dis-
sented. Of the majority that Mr. Justice Clark had spoken for the
year before, Justices Reed and Minton had retired and Mr. Justice
Harlan had changed his position.
The four opinions reflected a wide divergence of views on the
"grave issues" presented. Mr. Justice Black commenced by em-
phatically rejecting
the idea that when the United States acts against citizens abroad it can
do so free of the Bill of Rights. The United States is entirely a creature
of the Constitution. Its power and authority have no other source. It can
only act in accordance with all the limitations imposed by the Constitu-
tion. When the Government reaches out to punish a citizen who is
abroad, the shield which the Bill of Rights and other parts of the Con-
stitution provide to protect his life and liberty should not be stripped
away just because he happens to be in another land.47
The Ross dictum that "the Constitution can have no operation

in another country" was "obviously erroneous if the United States
Government, which has no power except that granted by the Con-
stitution, can and does try citizens for crimes committed abroad."48
The Justice pointed out that the Supreme Court and other federal
courts, contrary to Ross, had frequently "held or asserted that
various constitutional limitations apply to the Government when
it acts outside the continental United States."49 The Insular Cases
were distinguishable-
[T]hey involved the power of Congress to provide rules and regulations
to govern temporarily territories with wholly dissimilar traditions and
institutions .... None of these cases had anything to do with military
47. Id. at 5-6. The Justice went on to add, "This is not a novel concept. To the
contrary, it is as old as government. It was recognized long before Paul successfully
invoked his right as a Roman citizen to be tried in strict accordance with Roman law."
Id. at 6.
48. Id. at 12.
49. 354 U.S. at 8, citing "Balzac v. Porto Rico, 258 U.S. 298, 312-13 [1922]
(Due Process of Law); Downes v. Bidwell, 182 U.S. 244, 277 [1901] (First Amendment,
Prohibition against Ex Post Facto Laws or Bills of Attainder); Mitchell v. Harmony, 13
How. 115, 134 [1852] (Just Compensation Clause of the Fifth Amendment); Best v.
United States, 184 F.2d 131, 138 [1950] (Fourth Amendment); Eisentrager v. Forrestal,
. .174 F.2d 961 [1949] (Right to Habeas Corpus), rev'd on other grounds sub nom.
Johnson v. Eisentrager, 339 U.S. 763 [1950]; Turney v. United States, 115 F. Supp. 457,
464 [1953] (Just Compensation Clause of the Fifth Amendment)." Id. at n.10.
May I96I ] COURT-MARTIAL JURISDICTION 47I
trials and they cannot properly be used as vehicles to support an extension

of military jurisdiction to civilians.50
Convinced that the Constitution was operative wherever the

United States acted, Mr. Justice Black turned to the question
whether that charter authorized the military trial of civilians ac-
companying the armed forces abroad. He acknowledged Congress'
power to provide for the court-martial of members of the armed
services, but declared that neither article I, section 8, clause I4, nor
any other provision, even when buttressed by the necessary and
proper clause, empowered Congress to extend such jurisdiction to
civilians in time of peace.5' "[T]he jurisdiction of military tribu-
nals is a very limited and extraordinary jurisdiction derived from
the cryptic language in Art. i, ? 8, and, at most, was intended to
be only a narrow exception to the normal and preferred method of
trial in courts of law."52 Mr. Justice Black quoted with approval
Mr. Chief Justice Marshall's classic observation in McCulloch v.
Maryland: "Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional."53
But "military trial of civilians is inconsistent with both the 'letter
and spirit of the constitution.' "54
To support this judgment the Justice stressed that court-
martial deprived the accused of trial by jury, indictment by grand
jury, and other basic safeguards. He adverted to excesses flowing
50. 354 U.S. at 14.
51. In reaching this conclusion the Justice made certain observations pertaining to the
treaty power which apparently applied the coup de grace to the then receding attempt
to enact the Bricker Amendment or a comparable substitute. "[T]he Government
contends that Art. 2(11) of the UCMJ, insofar as it provides for the military trial of
dependents accompanying the armed forces in Great Britain and Japan, can be sustained
as legislation which is necessary and proper to carry out the United States' obligations
under the international agreements made with those countries. The obvious and decisive
answer to this, of course, is that no agreement with a foreign nation can confer power on
the Congress, or on any other branch of Government, which is free from the restraints of
the Constitution. ... It would be manifestly contrary to the objectives of those who
created the Constitution, as well as those who were responsible for the Bill of Rights-let
alone alien to our entire constitutional history and tradition-to construe Article VI as
permitting the United States to exercise power under an international agreement without
observing constitutional prohibitions.... The prohibitions of the Constitution were
designed to apply to all branches of the National Government and they cannot be nullified
by the Executive or by the Executive and the Senate combined.
"There is nothing new or unique about what we say here. This Court has regularly
and uniformly recognized the supremacy of the Constitution over a treaty." 354 U.S.
at 16-17. (Footnotes omitted.)
52. Id. at 21.
53. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).
54. Reid v. Covert, 354 U.S. 1, 22 (1957).
from despotic use of the military in England during the seven-

teenth century and in the Colonies prior to the Revolution, and
for these as well as other reasons perceived a strong purpose in
those who wrote the Constitution to keep the soldier in his proper
sphere, strictly subordinate to civil authority. The Founders would
never have sanctioned military trial of these dependents. The
Court itself had rejected numerous attempts to extend the juris-
diction of military tribunals over civilians, all in accord with a
"deeply rooted and ancient opposition in this country to the exten-
sion of military control over civilians."55
Mr. Justice Frankfurter, concurring only in the result, refused
explicitly to consider any broader issue than the power of Congress
to authorize court-martial of civilian dependents accompanying the
armed forces in peacetime for capital offenses. He, too, distin-
guished the Ross case and the Insular Cases on the ground they did
not involve a question of the permissible scope of military jurisdic-
tion over civilians, but rather wholly different problems in a dif-
ferent context. He agreed with Mr. Justice Black that "insofar as
[Ross] . . . expressed a view that the Constitution is not operative
outside the United States . . . it expressed a notion that has long
since evaporated."56
Nevertheless he found Ross and the Insular Cases instructive.
They suggested an approach whereby seemingly inconsistent con-
stitutional provisions could be reconciled so that neither would
unduly frustrate the other. This approach was "not dissimilar"
to that followed in reviewing legislation under the due process
clause-in short, had Congress made a rational choice between
the competing interests reflected by the relevant constitutional pro-
visions ?57 Specifically, had it unreasonably sacrificed the accused's
valuable interest in civilian trial and the procedural safeguards
of the Bill of Rights in its efforts to regulate and govern the armed
forces? To the Justice the answer was "yes" in capital cases. The
55. Id. at 33.
56. Id. at 56.
57. Compare Black, The Bill of Rights, 35 N.Y.U.L. REV. 865, 866-67 (1960):
"Again, it is sometimes said that the Bill of Rights' guarantees must 'compete' for survival
against general powers expressly granted to Congress and that the individual's right must, if
outweighed by the public interest, be subordinated to the Government's competing interest
in denying the right. All [such] . . . formulations, and more with which you are doubt-
less familiar, rest, at least in part, on the premise that there are no 'absolute' prohibitions in
the Constitution, and that all constitutional problems are questions of reasonableness,
proximity, and degree. This view comes close to the English doctrine of legislative omnipo-
tence, qualified only by the possibility of a judicial veto if the Supreme Court finds that
a congressional choice between 'competing' policies has no reasonable basis."
need for military jurisdiction in such cases was not overwhelming.

There were other alternatives. Far more important, the stakes
were so high that constitutional safeguards assumed extraordinary
significance. "The taking of life is irrevocable,"58
Mr. Justice Clark, dissenting in an opinion tinged with bitter-
ness, staunchly defended the Court's original decisions and the
reasoning upon which they were grounded.
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.59
In addition, Mr. Justice Clark thought the jurisdiction chal-

lenged could be upheld under article I, section 8. He emphasized
that hundreds of thousands of American civilians were involved-
civilians closely integrated with the military and present in a num-
ber of countries. If the services were to perform their missions,
these civilians had to be subject to some effective system of criminal
justice. United States trial, apart from court-martial, was not
feasible; trial by foreign governments was patently undesirable. It
was imperative to morale that civilians accompanying the forces
be subject to the same law and to the same courts as the servicemen
with whom they lived and worked. The Justice could see "no
distinction in the Constitution between capital and other cases. In
fact, at argument all parties admitted there could be no valid dif-
ference."60
Following the decision in Reid, habeas corpus proceedings were

filed in various federal district courts challenging the constitution-
ality of article 2(II) of the UCMJ in other situations. Reid was
not received sympathetically. First was the case of a civilian em-
ployed by the Air Force in Morocco who had been convicted in that
country by court-martial of a noncapital offense. The district judge
dismissed the petition6l stating, "the position of civilian employees
58. 354 U.S. at 45. In his separate concurrence Mr. Justice Harlan agreed essentially
with Mr. Justice Frankfurter both as to the scope of his decision and the reasoning which
underlay it.
59. Id. at 79.
60. Id. at 89.
61. United States ex rel. Guagliardo v. McElroy, 158 F. Supp. 171 (D.D.C. 1958)
(Holtzoff, J.).
is not only different in fact, but distinct in principle from that of

members of servicemen's families."6 The court of appeals re-
versed in a decision hearkening back to early New Deal days, on
grounds of "nonseverability."63 The Supreme Court in Reid had
refused to apply article 2(II) to one class of cases falling within
its terms, so the remainder could not be enforced until Congress
spelled out explicitly which other classes of cases falling under the
article it still wanted tried by court-martial.64 Subsequently, how-
ever, the Third Circuit repudiated a similar nonseverability argu-
ment and upheld the exercise of military jurisdiction abroad over
a civilian employee in a capital case.65 Certiorari was granted in
both cases.6
As for dependents there were two proceedings, both in the
Southern District of West Virginia (site of the Federal Reforma-
tory for Women). Each involved a wife who had been tried in a
foreign country by court-martial for a noncapital offense. The dis-
trict court, reversed the year before in Reid, held the jurisdiction
asserted invalid and ordered the wives released.6 The Govern-
ment appealed.68
By reason of the foregoing, the Supreme Court found itself
confronted for the fourth time in five terms with significant and
perplexing problems concerning the permissible scope of military
justice under the Constitution. It received extensive briefs which
canvassed historical materials, the practical need for court-martial
jurisdiction, the appropriateness of distinguishing between civilian
62. Id. at 175.

63. United States ex rel. Guagliardo v. McElroy, 259 F.2d 927, 932 (D.C. Cir. 1958).
64. Judge Burger dissented forcefully. He rejected the court's argument in terms of
nonseverability because "the statutory intent as well as the explicit language [of Art. 2
(11)] renders 'persons serving with (or) employed by' so readily distinguishable and
severable from 'persons accompanying' members of the armed forces that no real problem
of statutory construction is involved." 259 F.2d at 933.
65. Grisham v. Taylor, 261 F.2d 204, affirming 161 F. Supp. 112 (M.D. Pa. 1958).
During the same period two other federal district courts and the Court of Military
Appeals also upheld military jurisdiction over civilian employees in noncapital cases
under article 2(11). In re Yokoyama, 170 F. Supp. 467 (S.D. Cal. 1959); United States
ex rel. Wilson v. Bohlander, 167 F. Supp. 791 (D. Colo. 1958), rev'd, 361 U.S. 281 (1960);
United States v. Dyer, 9 U.S.C.M.A. 64, 25 C.M.R. 326 (1958).
66. United States ex rel. Guagliardo v. McElroy, 359 U.S. 904 (1959); Grisham v.
Taylor, 359 U.S. 978 (1959).
67. United States ex rel. Singleton v. Kinsella, 164 F. Supp. 707 (1958); Smith v.
Kinsella, H.C. No. 1963, S.D.W. Va., Aug. 12, 1957. "I believe that I am bound by
[Reid], much as I may disagree with it . . . I can think of no logical distinction, insofar
as the constitutional power of Congress is concerned, between its asserted power, denied by
the Supreme Court, to subject dependents of members of the armed forces overseas to the
jurisdiction of courts-martial for capital offenses, and the like questioned power in cases
of non-capital offenses." 164 F. Supp. at 709.
68. Probable jurisdiction noted, 359 U.S. 903 (1959).
employees and dependents, and between capital or other major

crimes and petty offenses. Then in a series of startling and rather
summary opinions by Mr. Justice Clark, the dissenter in Reid, the
Court held that military tribunals could not exercise jurisdiction in
time of peace over civilian dependents for noncapital offenses, Kin-
sella v. United States ex rel. Singleton69 (Justices Frankfurter and
Harlan dissenting), or over civilian employees in either capital
cases, Grisham v. Hagan70 (Justices Whittaker and Stewart dissent-
ing), or noncapital cases, McElroy v. United States ex rel. Guagli-
ardo7 (Justices Frankfurter, Harlan, Whittaker, and Stewart dis-
senting). It was a complete rout for military jurisdiction. The
broadest implications of Mr. Justice Black's opinion in Reid v.
Covert, so far as peacetime was concerned, were accepted. The
one-half million civilians accompanying the armed services in for-
eign lands were removed, at least temporarily, from the jurisdiction
of military tribunals.
Mr. Justice Clark's opinions, manifesting a seeming all or noth-
ing attitude, declared the cases indistinguishable in constitutional
terms from Reid. The latter was viewed as establishing that mili-
tary jurisdiction during peacetime could only be exercised over
persons with "military status."72 By this criterion court-martial of
both civilian employees and dependents was invalid. There was no
intelligible distinction between capital and noncapital cases-if
Congress could authorize military trial of an alleged offense it could
also provide such sanctions as it thought appropriate short of cruel
and unusual punishment. Historical materials tending to support
military trial were "'too episodic, too meager, to form a solid basis
in history, preceding and contemporaneous with the framing of the
Constitution, for constitutional adjudication.' 73
Mr. Justice Harlan vigorously protested the majority's interpre-
tation of Reid v. Covert and its decisions in "inexorable" terms of
military status. Reid resolved nothing, as he and Mr. Justice Frank-
furter's concurrences made perfectly clear, but the impropriety of
military jurisdiction in the narrow situation there involved, namely
a dependent tried for a capital offense. In such cases the safeguards
sacrificed in military trial clearly outweighed the need for such
69. 361 U.S. 234 (1960).
70. 361 U.S. 278 (1960).
71. 361 U.S. 281 (1960).
72. 361 U.S. at 243.
73. 361 U.S. at 284, quoting, somewhat acidly, Mr. Justice Frankfurter's language in
Reid v. Covert, 354 U.S. 1, 64 (1957) (concurring opinion).
476 STANFORD LAW REVIEW [Vol. I3: Page 46I
trial. This was equally true in capital cases involving civilian em-
ployees. However, in noncapital cases, involving either depend-
ents or employees accompanying the forces overseas, the constitu-
tional scales favored military authority. Mr. Justice Harlan regret-
ted that the "Court should have found the Constitution lacking in
enabling Congress to cope effectively with matters which are so
intertwined with broader problems that have been engendered by
present disturbed world conditions .... Today's decisions...
are bound to disturb delicate arrangements with many foreign
countries . . . .74
Justices Whittaker and Stewart, neither of whom had partici-
pated in Reid, concurred in part and dissented in part, taking a
position different from either the majority or Mr. Justice Harlan.
They, too, could see no fundamental distinction between capital
and noncapital cases in ascertaining the limits of congressional
power over civilians. Therefore, accepting Reid, court-martial of
dependents was invalid in noncapital as well as capital cases. The
position of employees, however, was different. Reid v. Covert did
not govern, it involved only dependents. Though fewer in num-
bers, employees performed essential services for the forces, were
closely integrated with servicemen in the military hierarchy, and
presented substantially the same disciplinary and security problems
as military personnel themselves. The practical necessity for mili-
tary trial was overwhelming; there was long-standing precedent,
both statutory and judicial, for court-martial of employees in areas
where United States civilian courts were not functioning. Accord-
ingly, the jurisdiction asserted over employees should be upheld.
III. THE SEARCH FOR STANDARDS
In appraising these decisions invalidating military jurisdiction

over civilians, or for that matter any significant adjudication, the
commentator's task is fraught with responsibility. His analysis
should be characterized by fair-mindedness, of course, and tem-
pered by due regard for his own superficial knowledge and fallible
judgment. But beyond this, there is an obligation to articulate
the standards by which he believes the Court should have pro-
ceeded. It is tempting and relatively easy-as well as frequently
useful-to tear down judicial premises, to cavil at judicial logic.75
74. United States ex rel. Singleton v. Kinsella, 361 U.S. 234, 258-59 (1960).
75. To make a gesture in that direction, the Court's opinions in Guagliardo, Single-
It is something more to vindicate the course chosen or to con-

struct satisfactory alternatives.76 Occasionally at least, the critic
should don the role of a justice faced with the responsibility of
decisions.
Turning to the principle cases, by what criterion or criteria
should the validity of the jurisdiction asserted be determined ? This
inquiry seemingly breaks down into several components. Spe-
cifically, from what sources should standards be derived? How
much significance should be accorded to each source? Granted
their appropriate weight, what principles do they collectively
yield ?77
A. Constitutional Text
There are probably few who urge, publicly or privately, that

the Court decide without careful respect for the terms of the Con-
stitution. Indeed, "no expression appears more commonly in the
rhetoric of the court and commentators than that if the language
is clear and unambiguous resort to collateral aids to interpretation
is unnecessary and may not be indulged in."78 Concern for consti-
ton, and Grisham offer an apt example of Bickel and Wellington's much quoted complaint:
"The Court's product has shown an increasing incidence of the sweeping dogmatic state-
ment, of the formulation of results accompanied by little or no effort to support them in
reason, in sum, of opinions that do not opine and . . . quite frankly fail to build the bridge
between the authorities they cite and the results they decree." Bickel & Wellington, Legis-
lative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HARV. L. REV. 1, 3
(1957).
76. A few years ago Professor Cavers suggested there were too many "weeders" and
not enough "planters" among law teachers, the group to whom society must look primarily
for sustained, discerning, constructive appraisal of the judicial and legislative product. Book
Review, 56 HARV. L. REV. 1170 (1943). "Professor Cook has defended his work [LOGICAL
AND LEGAL BASES OF THE CONFLICT OF LAWS (1942)] against the charge that his criticism
is 'merely destructive' by replying that 'The removal of the weeds [in the intellectual
garden] is . . . as constructive in effect as the planting and cultivation of the useful vege-
tables.' This is true, but it assumes that we have vegetables to plant and planters to plant
them. Given Professor Cook's immediate objectives, doubtless he can be excused from an
obligation to carry the planting operations forward, but it is a source of some concern that
his fellow workers in the garden (myself again included) have likewise busied themselves
chiefly with weed eradication.
"The Conflict of Laws is not the only part of the legal garden in which soil prepara-
tion far outruns planting. The scholars of the past twenty years have uprooted specious
doctrines, have extirpated noxious decisions, and, in closing paragraphs, have called
insistently for 'useful vegetables.' As these calls go unheeded, certain suspicions grow.
"One of these is that our manpower is badly allocated, that all our gardeners are
weeders and none planters."
77. Compare CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 10 (1927): "What is it
that I do when I decide a case? To what sources of information do I appeal for guidance?
In what proportions do I permit them to contribute to the result? In what proportions ought
they to contribute? If a precedent is applicable, when do I refuse to follow it? If no prece-
dent is applicable, how do I reach the rule that will make a precedent for the future? If I
am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it?"
78. tenBroek, Admissibility and Use by the United States Supreme Court of Ex-
trinsic Aids in Constitutional Construction, 26 CALIF. L. REV. 287, 290 (1938), citing:
tutional text not only seems more consistent with responsible and
predictable government but vital to that continued respect for the
courts and voluntary cooperation with their rulings which are
essential if they are to perform their valuable functions. The con-
cept of the Constitution perfect, immutable, definitive, virtually
self-applying, is deeply rooted in our folklore-for the courts pat-
ently to cut themselves loose from its terms would surely bring
down upon their heads the wrath and rejection reserved for those
who usurp sacred authority and destroy tribal symbols.78 Yet we
are oft admonished that the judicial function is not exhausted by
taking the provisions of the Constitution and a lexicon, modern
or late eighteenth century, and by applying the "plain meaning"
thus derived to the issues at hand. Not only would this frequently
produce unhelpful abstractions, but "behind the words of the consti-
tutional provisions are postulates which limit and control."80 In
short, the constitutional text imposes bounds on the range of choice
but normally it leaves much room for judgment within those
bounds.
Here, a literal reading of the relevant constitutional sections
hardly resolves the validity of the jurisdiction challenged, even
if one were grimly determined to be guided by their "plain mean-
ing." On their face, they seem to look in opposite directions. Arti-
cle I, section 8, gives Congress power "To make [all necessary and
proper] Rules for the Government and Regulation of the land and
naval Forces." Standing by itself, this provision can be read as
empowering Congress to subject civilians accompanying or serving
the armed forces to military trial whenever a rational connection
can be established between such trials and the discipline and effi-
ciency of the armed forces. Such rational connection seems self-
evident in the principal cases.81
"Ogden v. Saunders (1827) 25 U.S. (12 Wheat.) 213, 302; Craig v. Missouri (1830) 29
U.S. (4 Pet.) 410, 434; Briscoe v. Bank of Kentucky (1837) 36 U.S. (11 Pet.) 257,
328m; Prigg v. Pennsylvania (1843) 41 U.S. (16 Pet.) 539, 622; Lake County v. Rollins
(1889) 130 U.S. 662, 670; McPherson v. Blacker (1892) 146 U.S. 1, 11; Fairbanks v.
United States (1901) 181 U.S. 283, 307-8, 311; United States v. Sprague (1931) 282
U.S. 716, 730-32, and cases there cited; 1 COOLEY, . . . [CONSTITUTIONAL LIMITATIONS
(8th ed. Carrington, 1927)], at 141; MADIsoN, LETTERS AND OTHER WRITINGS (Hunt ed.
1904) 228; 1 STORY . . . [COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES
(4th ed. Cooley, 1873)] ? 405; WILLOUGHBY, . . [CONSTITUTIONAL LAW OF THE UNITED
STATES (2d ed. 1935)] ?? 28, 30."
79. See, e.g., ARNOLD, THE SYMBOLS OF GOVERNMENT 31-45 (1935); Lerner, Consti-
tution and Court as Symbols, 46 YALE L.J. 1290 (1937).
80. Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934).
81. See Reid v. Covert, 354 U.S. 1, 70-73 (1957) (Harlan, J., concurring).
However, section 8 does not stand alone. Article III, section i,

declares:
The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and shall . . .
receive . . . Compensation which shall not be diminished during their
Continuance in Office.
Section 2 of the same article continues by broadly requiring that:

The Trial of all Crimes . . . shall be by Jury; . . . when . . . [the
crime is not] committed within any State, the Trial shall be at such Place
or Places as the Congress may by Law have directed.
Trial by court-martial for offenses against the laws of the United

States ostensibly involves both exercise of judicial power and the
trial of crimes. Yet the members of the court-martial are transients
and no provision is made for trial by jury. It would involve no
abuse of the permissible meaning of language now or at the time
these provisions were adopted, to read article III as foreclosing
military trial of civilians for their alleged offenses against the
United States, even "when not committed within any State" while
accompanying the armed forces abroad.
B. The Original Understanding

Unable to resolve constitutional issues by perusing the text, it
is characteristic for judge and critic to turn to the "intention of the
framers," or in current parlance, "the original understanding," for
the meaning of constitutional provisions. In the present context,
what were the basic objectives of the Founders concerning
congressional power to subject civilians to military trial under the
provisions set forth above and other sections of the Constitution?
More pointedly, can anything be gleaned from their actions or
words, or from the general climate in which they operated, that
will indicate how they would have expected the Court to rule on
the particular jurisdiction under discussion ?
But first, what special significance should be attached to the
purposes, the attitudes, of those who established the Constitution
nearly two centuries ago? After all, we are repeatedly reminded,
it is a constitution the courts are expounding, a charter "designed
to approach immortality as nearly as human institutions can ap-
proach it." As time passes, the restless forces of change create
new problems, old problems assume new forms and dimensions,

knowledge and values alter.82 The problems that concern us are the
problems of this generation and we and our posterity must live with
the solutions. Why not resolve them in terms of present insights
and present values?83 "[E]very age should be the mistress of its
own law."84 True, the judgments of our forebears may illume
the path, and to that extent our heritage necessarily exerts influence.
But choice rests in our hands. To paraphrase Charles Curtis, we
do not sit in the councils of the Founders, rather we invite them to
sit in ours.85
Against this, it may be urged there is no more basic principle
in the law than that the pole star in interpreting a legal document
is to effectuate the purposes of those who made the document op-
erative.86 Much of the value of a written constitution is sacrificed
82. "It is inevitable that judges should substitute doctrines of their own for those
which the Fathers set down in the original document. And such a rewriting of the law-
even of the enduring principles of the higher law-is as necessary as it is inevitable. For
the values which fix the objectives of public policy must change as the aspirations of
men are broadened 'with the process of the suns'; and, even as ends endure, they must be
newly instrumented amid the changing circumstances of a dynamic culture or they will
be betrayed. With the fact that there is substitution we can have no legitimate quarrel."
Hamilton, The Constitution-Apropos of Crosskey, 21 U. CHI. L. REV. 79 (1953).
83. "[W]hen we are dealing with words that are also a constituent act, like the
Constitution of the United States, we must realize that they have called into life a being
the development of which could not have been foreseen completely by the most gifted of
its begetters. It was enough for them to realize or to hope that they had created an
organism .... The case before us must be considered in the light of our whole experi-
ence and not merely in that of what was said a hundred years ago." Missouri v. Holland,
252 U.S. 416, 433 (1920) (Holmes, J.).
84. 3 MAITLAND, COLLECTED PAPERS 487 (1911).
85. CURTIS, LIONS UNDER THE THRONE 2 (1947). Compare the following colloquy
recorded in SUPREME COURT AND SUPREME LAW 73 (Cahn ed. 1954): "Curtis: I think the
first one is a very neat example of why I should discard original intention entirely.
[Whipping] is cruel as of the present, and it is unusual. There is no basis for restriction
to what was unusual at that time. I should certainly hold whipping unconstitutional,
looking for guidance to the present meaning of the word 'unusual.' Take your second
one, freedom of speech. I should ignore any restrictions put on it by the common law
or the practices of the eighteenth century and look rather to what We believe now-I am
using 'We,' as the Constitution does, with a capital W-and I should expect the Supreme
Court to pick out the best views and try to give us their version of modern freedom of
speech. Answering your third question, I should ignore the contemporary practice. I
would ignore any common-law or eighteenth-century notions with respect to mortgage
moratoriums. Cahn: You would not feel a duty to consult what Madison said on the
subject? Curtis: I should be exceedingly interested in reading it in exactly the same
way that I should be interested to read his biography or any other relevant history; but
I was asked whether that bound the Supreme Court. To that I say no."
86. "The general theory of [Story and Cooley], . . . and that of many who have fol-
lowed them, is that constitutional interpretation is a function whose sole end is the discovery
of the intent of the law-givers, that the most reliable evidence of such intent is the language
used, and that, even when collateral materials are legitimately employed, they may be
used only so far as they tend to reveal that intent." tenBroek, supra note 78, at 287-88.
(Footnotes omitted.) So far as the Constitution is concerned, incidentally, this approach
would seem to shift the principal emphasis from the Philadelphia convention to the state
ratifying conventions and the attitudes and forces prevalent there. See, e.g., Madison's Let-
ter to N.P. Trist, December 1831, quoted in CORWIN, COMMERCE POWER V. STATES' RIGHTS
28 (1936): "Another error has been in ascribing to the intention of the Convention which
May I96I] COURT-MARTIAL JURISDICTION 48I
if the courts ignore its terms or the designs of its creators. To brush
aside these guides in favor of standards otherwise developed means
either more extensive policy making by a relatively undemocratic
oligarchy, the judiciary, or restriction of judicial review. If the
original understanding becomes incompatible with well-founded
contemporary needs, let the Constitution be amended by the proc-
esses it explicitly provides.87 This is the appropriate, the respon-
sible way to change.88 Granted, amendment may be difficult, but
"if the necessity for alteration becomes pressing, or if the public
demand becomes strong enough, the Constitution can be and has
been promptly amended."89 Changes in basic principles should
not come easy, for in Burke's words society is "a partnership not
only between those who are living, but between those who are
living, those who are dead, and those who are to be born."90 The
efficacy of the Constitution as a restraining symbol and of the
judiciary as an important balance wheel in our complex society
may be impaired if the courts, by word or deed, convince sufficient
numbers that they are proceeding without regard for the purposes
of the revered Framers.91
I find myself groping for answers when confronted with a
choice between these two oversimplified contentions, or when seek-
ing some synthesis or alternative more satisfactory than either. The
formed the Constitution, an undue ascendancy in expounding it. Apart from the difficulty
of verifying that intention, it is clear, that if the meaning of the Constitution is to be sought
outside of itself, it is not in the proceedings of the body that proposes it, but in those of
the State Conventions, which gave it all the validity and authority it possesses."
87. "The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or on the Application of the Legislatures
of two thirds of the several States, shall call a Convention for proposing Amendments,
which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitu-
tion, when ratified by the Legislatures of three fourths of the several States, or by Con-
ventions in three fourths thereof, as the one or the other Mode of Ratification may be
proposed by the Congress. ..." U.S. CONST. art. V.
88. SUPREME COURT AND SUPREME LAW, 74-75 (Cahn ed. 1954). "[Willard] Hurst:
I think a large part of the difference [between myself and Mr. Curtis] boils down to
the fact that he is a greater friend of the Court than I am.
"It seems to me that his approach is a way of practically reading Article V out of the
Federal Constitution. ... We may not like everything to which the men of 1787 com-
mit us. Of course, the world has changed. Nobody wants to run a twentieth century
society according to the eighteenth century. The real issue is who makes the policy choices
in the twentieth century: judges or the combination of legislature and electorate that makes
constitutional amendments."
89. Black, J., in Reid v. Covert, 354 U.S. 1, at 14 n.l (1957).
90. BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE 93 (Everyman's ed. 1935).
91. "Even the most remote of the Supreme Court Justices is close enough to the
society in which he operates to perceive that both popular and professional psychology are
much preoccupied with the notion that the intention of the framing fathers should pre-
vail." tenBroek, Use by the United States Supreme Court of Extrinsic Aids in Constitu-
tional Construction, 26 CALIF. L. REV. 437, 447-48 (1938).
original understanding surely has more significance than as a make-

weight for conclusions otherwise derived or as interesting advice
to be followed only as it possesses present merit. Yet it seems simply
one among several dependent considerations relevant to the deci-
sion.92 Of course the problem can be avoided if one attributes to
the Founders broad purposes capable of encompassing almost any
plausible approach, or if he regards them as providing a blank
check to be filled in by each generation within the permissible
limits of language. One view or the other may be tenable with
respect to certain constitutional provisions, but I doubt whether
either accurately reflects the purpose lying behind numerous others.
So again, in constitutional adjudication what significance should
be attached to the objectives of those who framed and adopted the
Constitution? Leaving this issue essentially unresolved, at least for
the time being, let us turn to such relevant history of the formative
era as has been unearthed.9
In 1775 and 1776 the Continental Congress enacted Articles of
War to govern the newly formed Revolutionary Army.94 These
articles were copied almost verbatim from earlier British articles,
largely because of colonial inexperience in such matters and the
need for prompt action.95 They provided, inter alia, for court-
martial jurisdiction over "all suttlers and retainers to a camp, and
all persons whatsoever serving with the armies of the United States
in the field, though no inlisted soldier . . . according to the rules
and discipline of war,"96 and over "all officers, conductors, gunners,
matrosses, drivers or any other persons whatsoever, receiving pay
or hire in the service of the ... artillery ... [of the United
92. The literature does not seem to offer much assistance, normally confining itself
to the proposition that one must neither ignore the original understanding nor accept it
as conclusive. Perhaps most helpful is a series by tenBroek, Use by the Supreme Court
of Extrinsic Aids in Constitutional Construction, 26 CALIF. L. REV. 287, 437, 664 (1938),
and 27 id. 157, 399 (1939). See also SUPREME COURT AND SUPREME LAW Ch. 3 (Cahn ed.
1954); Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L.
REv. 1 (1955); Frankfurter, Mr. Justice Cardozo and the Public Law, 52 HARV. L. REV.
440 (1939).
93. The subsequent historical account necessarily draws heavily upon information col-
lected by the Justices and by diligent counsel in Reid and the recent series of cases.
94. II JOURNALS OF THE CONTINENTAL CONGRESS 111 (1775), reprinted in 2 WIN-
THROP, MILITARY LAW AND PRECEDENTS 1478, 1487 (2d ed. 1896).
95. The Articles were reported to the Congress by John Adams and Jefferson. 3
JOHN ADAMS, WORKS 68-69, 83-84 (C.F. Adams ed. 1865). According to Adams, "such
was the opposition, and so undigested were the notions of liberty prevalent among the
majority of members most zealously attached to the public cause, that to this day I
scarcely know how it was possible that these articles could have been carried."
96. Articles of War (1776) ? XIII, art. 23, in 2 WINTHROP, op. cit. supra note 94,
at 1497.
States] ....""9 Other provisions extended to "commissaries,"98 to

"whosoever,"99 and to "any person belonging to the forces of the
United States."100 In each instance the provision contemplated mili-
tary jurisdiction under certain circumstances over persons without
military status occupying a functional relationship to the armed
forces. In I778 Congress further resolved:
That every person employed either as Commissary, Quarter Master,
forage Master, or in any other Civil Department of the Army shall be
subject to trial by Court Martial for neglect of duty, or other offense
committed in the execution of their office ... .101
Available records show a number of military trials under these

provisions of civilians serving with the armies during the Revo-
lutionary War. For example, on September 27, 1780, a wagon
driver was tried by court-martial for embezzling public stores and
acquitted.'02 Earlier a commissary had been found guilty of theft
by a military court and sentenced to pay a fine of $200, to be
mounted backwards on a horse without saddle, and drummed out
of camp.'03 Then there was a Mr. Randle, State Clothier for Mary-
land, who was acquitted with honor on charges that he had in-
dulged in "unofficerlike behavior in distributing The Cloth sent
up by The State."'04 Trials of dependents accompanying the forces
are also reported. In one a wife was convicted, given one hundred
lashes and drummed out of camp.105 Another was acquitted.106
Most of these trials apparently occurred in an area of active hostili-
ties where civilian courts of the struggling colonies were not effec-
tively functioning. They were administered by a voluntary citizens'
97. Articles of War (1775) art. XLVIII, in 2 WINTHROP, op. cit. supra note 94, at
1483. Apparently the "drivers," and perhaps even the "matrosses" and "gunners" referred
to in this article, were not regarded as persons with military status at that time, but rather
as civilian employees. See Brief for Petitioner, United States ex rel. Guagliardo v. McElroy,
359 U.S. 904, 38-39 (1959), Brief for Respondent, id. 26-28, and Reply Brief for Peti-
tioner, id. 9-12, where this matter is disputed with detailed reference to early statutes and
other materials.
98. Articles of War (1776) ? IV, arts. 5, 6; ? XII, art. 1, in 2 WINTHROP, op. cit.
supra note 94, at 1491, 1494. (Hereafter all citations are to the Articles of 1776.) The
civilian status of these commissaries is clear.
99. Section XIII, arts. 18, 19, id. at 1497.
100. Section XIII, arts. 15, 17, id. at 1497. Compare art. 9, id. at 1496.
101. X JOURNALS OF THE CONTINENTAL CONGRESS 72 (1778).
102. 20 WRITINGS OF WASHINGTON 97 (Fitzpatrick ed. 1937). Washington recounts
other instances: 10 id. 359, 507 (1933); 11 id. 487 (1933); 16 id. 385-86 (1937); 20
id. 96 (1937); 21 id. 10, 22-23, 190 (1937).
103. VALLEY FORGE ORDERLY BOOK OF GENERAL WEEDON IN THE CAMPAIGN OF 1777-
1778, at 180. Sec also id. at 9-10, 177.
104. 18 WRITINGS OF WASHINGTON 269 (Fitzpatrick ed. 1937).
105. WEEDON, op. cit. supra note 103, at 215-16.
106. Ibid.
army, often at times when both the army and the rebellion were in
great peril of being crushed by the British.
Significantly, clause 14 of article I, section 8, was carried over
intact from the Articles of Confederation, without apparent dis-
cussion, in the final draft prepared at the Philadelphia conven-
tion.107 Neither the records of that convention nor those of the
state ratifying conventions seem to contain any reference to the
power of Congress to regulate the armed forces or to confer juris-
diction over civilians on courts-martial. Delegates obviously were
preoccupied with matters of larger concern.08
After the Constitution had been ratified, the First Congress car-
ried forward the Continental Articles of I776 (with minor amend-
ments that need not concern us here) by briefly providing that
[troops in the service of the United States] shall be governed by the rules
and articles of war which have been established by the United States in
Congress assembled, or by such rules and articles of war, as may here-
after by law be established.109
This blanket adoption was reaffirmed on several occasions until

I806 when the original American articles were reviewed in some
detail though not significantly modified.11 Argument can be made
that this action by the early Congresses establishes that the Found-
ers contemplated court-martial jurisdiction over civilians accom-
panying the armed forces, at least where United States civilian
courts are not functioning.1' Not only did the I776 articles pro-
107. 5 ELLIOTT'S DEBATES 443-45 (1876). Clause 14 is set forth supra note 33.
108. Fear was extensively manifested, however, of federal power to establish an army
in peacetime-fear that a standing army might be used to usurp civilian functions or to
destroy political and civil rights. In the federal convention itself proposals were advanced to
limit the standing army to two or three thousand men for all time. See 2 FARRAND,
RECORDS OF THE FEDERAL CONVENTION 323, 329, 330 (1911); WARREN, THE MAKING OF
THE CONSTITUTION 482-84 (1937). Such extreme limitations were rejected. But to obviate
foreseen dangers, control over the military was fragmented among different branches of the
proposed federal government. See, e.g., U.S. CONST. art. II, ? 2 (President made Com-
mander-in-Chief of the armed forces, but Senate approval required for the appointment
of officers); U.S. CoNST. art. I, ? 8 (Congress given power to raise and support armies
and a navy, but no appropriation of money for this purpose to be for a period of longer
than two years). The state militia, then regarded as a potent counter to abusive federal
power, was also explicitly recognized, and appointment of officers, as well as training pur-
suant to rules of discipline prescribed by Congress, left to the states. U.S. CONST. art. I,
? 8, cl. 15, 16. See WARREN, THE MAKING OF THE CONSTIrTUION 484, 517-20 (1937).
Despite these precautions, fear of a national military establishment continued to be voiced
in the state ratifying conventions. See, e.g., 1 ELLIOTT's DEBATES 335, 336 (1876); 3 id.
660; 4 id. 244, 245.
109. Act of Sept. 29, 1789, ch. 25, ? 4, 1 Stat. 96 (1789).
110. Act of April 10, 1806, ch. 20, 2 Stat. 366 (1806). See Wiener, Courts-Martial
and the Bill of Rights: The Original Practice 1, 72 HARv. L. REV. 1, 13-22 (1958).
111. This was Mr. Justice Whittaker's position in Guagliardo with respect to em-
ployees but not dependents. 361 U.S. at 266.
May I96I ] COURT-MARTIAL JURISDICTION 485
vide jurisdiction over various civilians serving with the army,ll2

but the first Congresses represented essentially the same society that
had adopted the Constitution and many of the congressmen had
been influential in the ratification process.
Nevertheless I doubt this argument. The early Congresses were
burdened with important matters in the process of implementing
the scheme of government sketched by the Constitution. There is
reason to believe they did not weigh each measure painstakingly
to determine if it accorded with the design of the Constitution,13
or even that a majority always agreed on that design.14 Although
Congress was early admonished that "the change ... in ...
Government . . . will require that the articles of war be revised
and adapted to the constitution,"115 it was a number of years before
it got around to any systematic scrutiny of the articles and by that
time they had been in effect for three decades. Indeed, Congress
in reaffirming them in I79o, 1795, and I796 did so only "as far
as the same may be applicable to the constitution.""1 Beyond this,
the most comprehensive of the Continental Articles extending mili-
tary jurisdiction to civilians applied only "in the field";11 others
perscribed administrative sanctions or relatively minor penalties-
for example, discharge from office, forfeiture of pay, restriction
upon future government employment;l8 the balance condemned
what today would be regarded as violations of the laws of war, of-
fenses that can be committed by any person, not merely those ac-
companying the forces."9
Historical manuscripts cited by counsel in Guagliardo, but not
available to me, apparently show that a number of civilians (some
attached to the forces and some not) were punished by military
tribunals under Generals Wayne and Wilkinson on the western
112. See text accompanying notes 96-100 supra.

113. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), where the
Court held unconstitutional a portion of ? 13 of the Judiciary Act of 1789.
114. See, e.g., LEVY, LEGACY OF SUPPRESSION 245-48 (1960).
115. Secretary of War Knox, in 1 AMERICAN STATE PAPERS ON MILITARY AFFAIRS 6
(1789).
116. Act of April 30, 1790, ch. 10, ? 13, 1 Stat. 121; Act of March 3, 1795, ch. 44,
? 14, 1 Stat. 432; Act of May 30, 1796, ch. 39, ? 20, 1 Stat. 486.
117. Articles of War (1776) ? XIII, art. 23, in 2 WINTHROP, MILITARY LAW AND
PRECEDENTS 1497 (2d ed. 1896).
118. Section IV, art. 6, id. at 1491; ? VIII, art. 1, id. at 1493; ? XII, art. 1, id. at
1494-95.
119. Section XIII, arts. 9, 15, 17, 18, 19, id. at 1496-97. Section XIV, arts. 6 and 14,
provided for punishment by court-martial for contemptuous conduct toward its processes
or orders, power similar to that exercised by any court of the United States. Id. at 1499,
1500.
frontier from I793 to I798.120 For the most part, these trials
occurred in sparsely settled territories where hostilities with Indian
tribes were common and civilian justice incomplete. Alternatives to
military trial, as well as opportunities for public attention, were
limited. The military commands in these locations were frequently
in conflict with local civil authority,l' and on occasion were cau-
tioned by their superiors to exercise care not to usurp the civilian
administration of justice.'22 There is no record, however, that their
trial of civilians accompanying the forces was disapproved or, for
that matter, approved by higher civilian authority.
What conclusions can be drawn from these various fragments,
these bare bones of history, as to the purpose of those who adopted
the Constitution? Obviously the notion of military jurisdiction
over civilians accompanying the armed forces was known to them.
Not only were statutes enacted providing for court-martial of such
persons, but there were numerous instances in which such power
was exercised. True, most of these trials occurred during time of
war in an area of actual hostilities where civilian trial was not
feasible, yet others took place away from the scene of battle, or in
remote sections even in time of peace. Similarly, most of the statu-
tory provisions drew no express distinction between peace and war,
between battle line and home front. These considerations forcibly
support the position that the Founders meant for Congress to have
plenary power under article I, section 8, to authorize court-martial
of civilians accompanying the armed forces-at least civilians such
as those in the principal cases-serving in areas where United States
civilian courts are not functioning.
Yet there are other factors pointing toward a different con-
clusion. Despite the flush of victory, the generation that adopted
the Constitution appears unsympathetic to military institutions and
to military power over civilians.
The Founders envisioned the army as a necessary institution, but one
dangerous to liberty if not confined within its essential bounds. Their
fears were rooted in history. They knew that ancient republics had been
overthrown by their military leaders. They were familiar with the his-
tory of Seventeenth Century England, where Charles I tried to govern
through the Army and without Parliament. . . . The reign of Charles I
120. Brief for Respondent, pp. 36-54, 107-118.

121. See WHITE, THE FEDERALIST 374-80 (1948).
122. 2 TERRITORIAL PAPERS OF THE UNITED STATES 401. Compare 34 WRITINGS OF
WASHINGTON 6, 159-60 (Fitzpatrick ed. 1940).
was followed by the rigorous military rule of Oliver Cromwell. Later,

James II used the Army in his fight against Parliament and the people.
. . . Within their own lives they had seen royal governors sometimes
resort to military rule. . . . [Therefore they] embodied their profound
fear and distrust of military power... in the Constitution and its
Amendments.123
They also were deeply attached to trial of crimes by an independent

tribunal free from executive control.124 Both attitudes are manifest
in the Declaration of Independence, where the colonists protested
that George III had "affected to render the Military independent
of and superior to the Civil Power" and had deprived Americans
of "the benefits of Trial by Jury."'25
As for court-martial, probably many would have shared Black-
stone's views, in his then widely circulated treatise, that such justice
is built upon no settled principles, but is entirely arbitrary in its decisions,
[and] is, as Sir Matthew Hale observes, in truth and reality no law, but
something indulged rather than allowed as law. The necessity of order
and discipline in an army is the only thing which can give it countenance;
and therefore it ought not to be permitted in time of peace, when the
. . [civilian] courts are open for all persons to receive justice according
to the laws of the land.'26
The formative era was characterized by fear and detestation of

unrestrained or Draconian government power, particularly when
it came to imposition of criminal penalties. For illustration one
need only refer to the elaborate safeguards of the Bill of Rights.27
Military justice, in that era, permitted the exercise of much un-
fettered power by military authorities and sanctions were harsh
even by contemporary standards.
But far more significant, the nature and dimensions of the
present problem are distinctly unlike anything the Founders had
known or probably envisioned. Their concern was with a small
standing army, augmented temporarily by civilian volunteers in
time of major conflict;l28 an army serving normally in areas of
123. Reid v. Covert, 354 U.S. 1, 23-29 (1957). (Footnotes omitted.)
124. Congress is still struggling to meet this criterion with regard to courts-martial.
See pp. 488-95 infra.
125. 43 HARVARD CLASSICS 152 (1910).
126. 1 BLACKSTONE, COMMENTARIES *413.
127. "I suppose no one would doubt that our Constitution and Bill of Rights,
grounded in revolt against the arbitrary measures of George III and in the philosophy of
the French Revolution, represent the maximum restrictions upon the power of organized
society over the individual that are compatible with the maintenance of organized society
itself." Watts v. Indiana, 338 U.S. 49, 61 (1949) (separate opinion of Jackson, J.).
128. "[T]he scope of federal military law in 1789-1791 was extremely narrow in
actual hostilities where communication and transportation were

slow and civilian institutions quite impracticable; an army accom-
panied by a relative handful of civilian camp followers, more
often than not viewed as disreputable rag-tag and bobtail by the
community at large.129 The situation today is vastly different.
Several hundred thousand American civilians, not only employees
but wives and children, are accompanying the armed forces over-
seas at semi-permanent establishments in countries boasting a
high degree of civilization and enlightened systems of criminal
justice-this in an era of rapid transportation and communication
which has reduced intercontinental travel to the dimensions of
a trip from Baltimore to Washington when the Constitution was
written. At the same time military justice has changed appreciably.
On the one hand it has been extended to a much wider range of
conduct, particularly offenses of a nonmilitary nature; on the other
it has become less severe and more solicitous of the defendant's
rights.
All things considered, I find little guidance in the original un-
derstanding (assuming that to be significant) in resolving the
concrete problem before us. The Founders rather obviously viewed
military jurisdiction over civilians accompanying their armies as
appropriate in areas of hostility where civil institutions were not
practicable.'30 But how they would have reacted to the present
radically dissimilar situation is hard to discern.'3 We can speculate
about their probable attitudes, we can endeavor to draw analogies
from their practices, but in the final analysis it seems to me that
we must proceed without their answer.
C. Nonjudicial Precedents
It is commonplace that courts in applying the Constitution
terms of the numbers affected thereby. President Washington transmitted to the Senate
in August 1789 a statement from Secretary Knox showing that the troops in active
service came to 672, and that there was wanting 168 'to complete the establishment.'
By December 1792-after the disastrous defeats suffered by Harmar and St. Clair at
the hands of the Indians-the authorized total was only 5,120. But this was a paper
figure; the actual total, as late as two years afterwards, was only 3,692." Wiener, Courts-
Martial and the Bill of Rights: The Original Practice 1, 72 HARV. L. REV. 1, 8-9 (1958).
(Footnotes omitted.)
129. See id. at 292-93.
130. In Judge Burger's words, "Ever since 1689 military law has been regarded
as an unwelcome but necessary abridgement of civil rights." United States ex rel. Guagli-
ardo v. McElroy, 259 F.2d 927, 936 (D.C. Cir. 1958) (dissenting opinion).
131. See Wiener, supra note 128, at 301-2.
should accord "due significance" to the interpretations and prac-

tices of nonjudicial departments of the government.'32
[G]overnment is a practical affair intended for practical men. Both offi-
cers, law-makers and citizens naturally adjust themselves to any long-
continued action of the Executive Department .... [I]n determining
the meaning of a statute or the existence of a power, weight shall be given
to . . . usage . . . even when the validity of the practice is the subject
of investigation.133
What has been done is some indication of what society finds not
only tolerable but appropriate as its basic values have evolved.
In Mr. Justice Frankfurter's terms, "law is a social organism, and
evolution operates in the sociological domain no less than in the
biological."'34
The perplexing problem once again is how much significance
is "due"? The cases and commentary provide little concrete direc-
tion. About the most they do is indicate that the matter turns on
many indefinite factors, for example, "the nature of the [constitu-
tional] question . . . the attitude of [other] branches of the gov-
ernment . . . the number of instances in the execution of the law
in which opportunity for objection in the courts or elsewhere is
afforded."'35 To this one might add the extent and duration of
the practice, the stature and competency of the department or indi-
viduals involved, the degree of reliance by those affected and its
justifiability, as well as numerous other considerations. But merely
to list the relevant factors does not advance one very far, particularly
in the difficult cases. Judgment is surely required in this matter,
but what are the criteria by which it is to be exercised?
So far as the application of military law to civilians accompany-
ing or serving the armed forces is concerned, the practices and
pronouncements of nonjudicial departments of government since
the beginning of the nineteenth century have been sporadic and
inconsistent. Counsel in the recent cases unearthed seven military
trials of civilians functionally attached to the armed forces in the
six decades from I8oo to i86o.136 These included four trials of sut-
lers, one in Virginia in 1825, one in Maryland the same year, anoth-
132. See, e.g., Inland Waterways Corp. v. Young, 309 U.S. 517, 522-25 (1940);
United States v. Moore, 95 U.S. 760 (1877); SUPREME COURT AND SUPREME LAW 83-84
(Cahn ed. 1954).
133. United States v. Midwest Oil Co., 236 U.S. 459, 472-73 (1915).
134. Green v. United States, 356 U.S. 165, 189 (1958) (concurring opinion).
135. Myers v. United States, 272 U.S. 52, 170-71 (1926).
136. Government Reply Brief, pp. 51-52, Reid v. Covert, 354 U.S. 1 (1957).
49? STANFORD LAW REVIEW [Vol. I3: Page 46I
er in Indian territory in I833, the last in Florida in 1838, and three

of civilian employees, all in Utah Territory in I858. There may have
been others for which there is no record. These trials lend support
to the jurisdiction under scrutiny, of course, but again their true
significance is somewhat obscure. Seven scattered trials in sixty
years hardly evidence an established, widely acknowledged prac-
tice, particularly when three resulted in acquittal or no punish-
ment, two in dismissal from employment and two in brief con-
finement, and when the forces were accompanied by an appreciable
number of civilians throughout that entire period.137 Furthermore,
the location of several of these trials at places where civilian courts
were readily accessible as well as the apparent absence of approval
by higher civilian authority indicate they might appropriately be
viewed as an irregular exercise of jurisdiction by local military
authorities.
In I866 Judge Advocate General Holt formally declared:
It has been the custom and is held to be advisable, that civil employees,
sutlers and camp followers when guilty of crimes known to the civil law,
to turn the parties over to the courts of the vicinity in which the crimes
were committed. For minor offenses against good orders and discipline,
it has been customary to expel the parties from the Army: If, however,
it is sought to punish civil employees . . . for crimes committed at a
post where there are no civil courts before which they can be tried, it is
held that they can be brought to trial before a General Court Martial,
as they must be considered as serving with "an army in the field" and,
there, within the provisions of the 6oth Article of War (to wit: "All
sutlers and retainers to the camp, and all persons whatsoever, serving
with the armies . . . in the field, though not enlisted soldiers, are to be
subject to . . . the rules and discipline of war." AW i8o6).138
In 1872 this was followed by an opinion from the Attorney General

that civilians serving with troops in the West at camps where de-
fensive precautions against possible Indian attacks were necessary
could be subjected to military trial.139
Beginning in 1877, however, there were rulings and expressions
from responsible authorities taking a sharply different view. In
that year Judge Advocate General Dunn, who had shortly before
replaced Holt, issued the following emphatic opinion:
[T]he 63rd Article of War [AW I874, essentially the same as Article
137. See REV. STAT. ?? 1240, 1295 (1875).

138. Opinion of the Judge Advocate General of the Army, Nov. 15, 1866, 23 BUREAU
OF MILITARY JUSTICE-LETTERS SENT 331 (Ms., National Archives).
139. 14 OPS. ATT'Y GEN. 22 (1872).
60 of the Articles of i806 set out above] refers to, and is operative only
in (as the terms "camp" and "in the field" indicate) a time of war . . .
and can have no application in time of peace. Sundry other of the
Articles of War are applicable only to time of war; and, as to this, or any
other, Article or Statute, even if it did in express terms assume to extend
the military jurisdiction to civilians in time of peace, it would, in my
opinion, necessarily be unconstitutional and of no legal effect. In my
view, no possible case can arise, in time of peace, where a civilian can
legally be made liable to military arrest and trial for a criminal or other
offence, and any statute which attempts to render him so amenable must
necessarily be wholly void. In time of war civilians serving with troops
engaged in hostile operations, become, for offences committed upon the
theatre of war . . . [amenable] to the military jurisdiction .... But
except in these instances, such a jurisdiction cannot be exercised without,
in my judgment, the clearest violation of the Constitution; and to exer-
cise it in fact would be an act of arbitrary power wholly repugnant to
the principles upon which our system of government is based.140
Similarly, the Attorney General in I878 reversed an earlier opinion

upholding military jurisdiction in peacetime over civilian quarter-
master clerks.'41 And the Judge Advocate General ruled in I880
that post traders, who had replaced the sutlers, were not amenable
to the jurisdiction of military court in time of peace despite explicit
statutory provisions to the contrary.142 This ruling was reiterated
in the Opinions of the Judge Advocate published in I895 and
I9OI.43
The principal text writers on military law during this period,
Colonel Winthrop (sometimes referred to as the "Blackstone of
Military Law"), General Davis, and Colonel Dudley, also took the
position that military jurisdiction over civilians under the afore-
mentioned article 63 extended only to acts committed during war
in a theater of actual hostilities.144 Winthrop concluded "that a
civilian . . . cannot legally be made liable to the military law and
140. Opinion of the Judge Advocate General of the Army, 38 BUREAU OF MILITARY JUS-
TICE-LETTERS SENT 557 (Ms., National Archives). Subsequently General Dunn reiterated
these views: "This Bureau has always been of opinion that the military jurisdiction cannot
legally be extended to a case of a civilian except upon the rare and extraordinary occasion
of a state of war or of the existence of martial law, and then only for crimes committed
upon the theatre of war or within the scope of such law." Opinion of the Judge Advocate
General of the Army, 38 BUREAU OF MILITARY JUSTICE-LETTERS SENT 641 (Ms., National
Archives).
141. 16 OPS. ATT'Y GEN. 13 (1878).
142. DIG. OPS. J.A.G. 1[ 4, at 384 (Winthrop ed. 1880).
143. DIG. OPS. J.A.G. T 4, at 599-600 (Winthrop ed. 1895); DIG. OPS. J.A.G. [f 2023,
at 563 (McClure rev. ed. 1901).
144. 1 WINTHROP, MILITARY LAW AND PRECEDENTS 134-38 (2d ed. 1896); DAVIs,
MILITARY LAW OF THE UNITED STATES 478-79 (3d ed. 1915); DUDLEY, MILITARY LAW
AND THE PROCEDURES OF COURT-MARTIAL 413-14 (2d ed. 1908).
jurisdiction, in time of peace, is a fundamental principle of our

public law . .. ."145 Indeed, "a statute cannot be framed by which
a civilian can lawfully be made amenable to the military jurisdic-
tion in time of peace."'46
These rather spectacular self-denials must be discounted, how-
ever, by the fact that their authors, regardless of their brilliance as
expositors of military law, could hardly be regarded as experts on
the Constitution. More important, their opinions were issued dur-
ing a period when there were few American civilians abroad with
the forces and the jurisdiction of civil courts had been extended
substantially throughout the continental United States. It was
probably unforeseeable that civilians in large numbers would in
the future accompany our armed forces (except in time of war) in
areas where United States civilian courts were not functioning.
In any event, so matters stood until 1912, when the War De-
partment submitted a comprehensive revision of the Articles of
War to Congress.'47 Article 2 of the proposed revision specified:
The following persons are subject to these articles:
(d) All retainers to the camp and all persons accompanying or serving
with the Armies of the United States without the territorial jurisdiction
of the United States, and in time of war all such retainers and persons
accompanying or serving with the Armies of the United States in the
field both within and without the territorial jurisdiction of the United
States ....
Judge Advocate General Crowder, testifying in support of the bill

(which he had also been instrumental in drafting), intimated to
the House Committee that the jurisdiction contemplated was "juris-
diction which had always been exercised."148
Changes in the Articles of War were made in I9I3,149 but gen-
eral revision was postponed until I9I6, when Congress substantially
approved the War Department's recommendations including ar-
ticle 2(d).15O This time hearings were held by the Senate Commit-
tee on Military Affairs; reference was made to the 1912 House
145. 1 WINTHROP, op. cit. supra note 144, at 143.

146. Id. at 146.
147. H.R. 23628, 62d Cong., 2d Sess. (1912).
148. Hearings on H.R. 23628 Before the House Committee on Military Affairs, 62d
Cong., 2d Sess. 61 (1912).
149. 37 Stat. 721 (1913).
150. 39 Stat. 651 (1916).
hearings but the Committee again listened to testimony by General

Crowder. On this occasion he explained:
Subhead (d) of article 2, which corresponds to article 63 of the existing
code, introduces the words "All persons accompanying" so as to make
subject to the article a class of persons who do not fall under the desig-
nations, "retainers to the camp," and "persons serving with the armies
in the field," employed in the existing law, and additional words are
introduced so as to confer jurisdiction over all three classes of persons,
to wit, (a) retainers, (b) persons accompanying, and (c) persons serving
with the armies of the United States in the field, in time of peace, when-
ever the Army is serving outside the territorial jurisdiction of the United
States. At present jurisdiction is limited to classes (a) and (c) and to a
period of war. The purpose is to give full disciplinary authority over
these three classes of persons when the army may be in peaceful transit
through a foreign country, or where, as in Cuba in I906, there is inter-
vention in a foreign country falling short of war.151
And later he expanded on this by saying:

In the present condition of our Articles of War "retainers to the camp"
and "persons serving with the armies in the field" are made subject to
the Articles of War only during the period and pendency of war and
while in the theater of military operations. A number of persons who
manage to accompany the Army, not in the capacity of retainers or of
persons serving therewith, are not included .... 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 .... 152
From this testimony it appears General Crowder accepted the

views of Judge Advocate General Dunn, Colonel Winthrop, and
others as to the narrow scope of military jurisdiction over civilians
under the existing Articles of War, despite his earlier suggestions
to the contrary in the House.
The Senate Committee report simply noted that the new article
2(d) involved an extension of court-martial jurisdiction to "re-
tainers to the camp and camp followers outside of the territorial
jurisdiction of the United States in time of peace .... "153 So far
as appears, there was no awareness during the legislative process
of any constitutional problem in this extension. Remarks on the
floor indicate that changes in the Articles of War were attached
151. S. REP. No. 130, 64th Cong., 1st Sess. 30 (1916). (Emphasis added.)
152. Id. at 37-38.
153. Id. at 18.
to an appropriation bill, and that appreciation of their significance

was slight.'5
In I943 Congress granted Navy courts-martial jurisdiction, "in
time of war or national emergency," over
all persons . . . outside the continental limits of the United States ac-
companying or serving with the United States Navy, the Marine Corps,
or the Coast Guard when serving as a part of the Navy, . . . and all
persons . . . within an area leased by the United States which is without
the territorial jurisdiction thereof and which is under the control of the
Secretary of the Navy . . . Provided, That the jurisdiction herein con-
ferred shall not extend to Alaska, the Canal Zone, the Hawaiian Islands,
Puerto Rico, or the Virgin Islands except [several named minor islands].
155
Theretofore apparently the only statutory basis for Navy trial of

civilians provided: "If any person belonging to any public vessel of
the United States commits the crime of murder without the terri-
torial jurisdiction thereof, he may be tried by court-martial and
punished with death."'56 The Navy justified its demand for more
extensive authority by pointing to Army jurisdiction under article
2(d) of the Articles of War, and to the need for some kind of
United States trial of the civilians affected. The Navy's original pro-
posals were changed, as a result of a brief Senate hearing, to exclude
areas where United States civilian courts were functioning, thus
accounting for special mention in the act of Alaska, Hawaii, and
other territories.157 The bill was not discussed on the floor;;58 the
committee reports simply described its contemplated operation.159
The final piece of legislative history occurred in 1950 when
Congress enacted the Uniform Code of Military Justice.160 Articles
2(10), (II), and (12) carried forward the substance of article 2(d)
of the 1920 Articles as well as the 1943 act pertaining to naval
court-martial.'6l Once again, however, military jurisdiction over
154. See 53 CONG. REC. 11504, 11509-12 (1916). Article 2(d) was reenacted in
1920, apparently without further consideration, in course of a general postwar amelioration
of military law. 41 Stat. 767 (1920).
155. 57 Stat. 41 (1943).
156. REV. STAT. ? 1624, art. 6 (1875).
157. See Hearings on S. 2899 Before the Senate Committee on Naval Affairs, 77th
Cong., 2d Sess. 9-10 (1942); Hearings on S. 303 Before the Senate Committee on Naval
Affairs, 78th Cong., 1st Sess. (1943).
158. See 89 CONG. REC. 72, 415, 925, 1044, 1457, 1984, 2046, 2142, 2182, 2314 for
chronological order of submission and passage of the legislation.
159. S. REP. No. 26, 78th Cong., 1st Sess. 1-2 (1943); H.R. REP. No. 192, 78th
Cong., 1st Sess. 1-3 (1943).
160. 10 U.S.C. ?? 801-940 (1958).
161. See p. 465 supra.
May I96I ] COURT-MARTIAL JURISDICTION 495
civilians was expanded: inter alia, to civilians accompanying the

armed forces during peace in several remote areas within the United
States and to persons present on bases leased from foreign gov-
ernments. Characteristically, this perpetuation and expansion of
military jurisdiction was accepted without significant considera-
tion in committee or on the floor. Again, constitutionality was ap-
parently assumed or not considered.162
D. Judicial Precedents
The role of stare decisis in constitutional adjudication has been
greatly controverted, as one would expect in view of the endless
tension in the law between the forces of permanence and those of
change, or, as Mr. Justice Frankfurter once put it, "between history
and reason, between past reason and present needs."'63 Normally
one finds the thesis advanced that precedents are less compelling
in the constitutional domain than elsewhere, reference being made
to the difficulty of change by amendment and the magnitude of the
values at stake. Even so, it seems that adherence to things decided
should be the rule until they are demonstrated unsound in terms
of values of constitutional dimension.164 In Mr. Justice Brandeis' fa-
miliar words, "Stare decisis is ordinarily a wise rule of action,"
though "not a universal, inexorable command."'65
In the present context, we previously adverted to the absence
of any Supreme Court decision directly in point prior to Reid v.
Covert. There is broad language in Toth which presages the result
162. See H.R. REP. No. 491, S. REP. No. 486, 81st Cong., 1st Sess. (1949). Floor
discussion may be found in 95 CONG. REC. 5718-44 (House) and 96 CONG. REC. 1353-
68, 1369-70, 1430-47 (Senate). Several witnesses did express fears, rather vaguely, about
court-martial of civilians during hearings. See, e.g., Hearings on S. 857 Before a Sub-
committee of the Senate Committee on Armed Services, 81st Cong., 1st Sess. 193, 266
(1949); Hearings on H.R. 2498 Before a Subcommittee of the House Committee on Armed
Services, 81st Cong., 1st Sess. 706-7, 771-72, 817-18 (1949).
163. Frankfurter, Mr. lustice Holmes and the Constitution, 41 HARV. L. REV. 121,
160 (1927).
164. Reasons are spread through the literature. They involve such diverse considera-
tions as predictability of decision, efficient judicial administration, circumspection on the
part of judges in announcing constitutional doctrine, and respect for the courts.
165. Washington v. W. C. Dawson & Co., 264 U.S. 219, 238 (1924) (dissenting
opinion). For a somewhat different emphasis see Douglas, Stare Decisis, 49 COLUM. L. REV.
735, 736-37 (1949): "The place of stare decisis in constitutional law is even more tenuous.
A judge looking at a constitutional decision may have compulsions to revere past history and
accept what was once written. But he remembers above all else that it is the Constitution
which he swore to support and defend, not the gloss which his predecessors may have
put on it. So he comes to formulate his own views, rejecting some earlier ones as false
and embracing others. He cannot do otherwise unless he lets men long dead and unaware
of the problems of the age in which he lives do his thinking for him. ... So far as
constitutional law is concerned stare decisis must give way before the dynamic component
of history."
in Reid and its successors.166 Nevertheless Toth seems distinguish-

able on its facts.'67 Military jurisdiction over an ex-serviceman
living in the United States with no particular present relationship
to the armed forces is one thing; jurisdiction over civilians ac-
companying the forces in foreign lands is quite another.
There are several other cases which seem more pertinent. In
Ex parte Reedl68 a Navy paymaster's clerk was tried and con-
victed by a court-martial on board ship off the Brazilian coast for
malfeasance in performing his official duties. Contemporary ar-
ticles for the government of the Navy extended court-martial juris-
diction over the offense charged to all persons "in the naval serv-
ice."'69 Paymaster's clerks were apparently treated as naval officers
for some purposes, for others not, although their precise status is
difficult to ascertain.70 The convict petitioned for release contend-
ing that under the articles court-martial jurisdiction did not reach
persons in his position. The Supreme Court upheld a lower court
decision dismissing a writ of habeas corpus. It reasoned:
The constitutionality of the acts of Congress touching army and navy
courts-martial in this country, if there could ever have been a doubt about
it, is no longer an open question in this court.... Dynes v. Hoover
(20 How. 65) ....
The place of paymaster's clerk is an important one in the machinery
of the navy. Their appointment must be approved by the commander
of the ship. Their acceptance and agreement to submit to the laws and
regulations for the government and discipline of the navy must be in
writing, and filed in the department. They must take an oath and bind
themselves to serve until discharged. The discharge must be by the
appointing power, and approved in the same manner as the appointment.
They are required to wear the uniform of the service; they have a fixed
rank; they are upon the payroll, and are paid accordingly. They may
also become entitled to a pension and to bounty land ....
166. "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 inno-
cence of people charged with offenses for which they can be deprived of their life, liberty
or property." 350 U.S. at 17. "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." Id. at 22.
167. See Judge Moore's analysis, p. 467 supra.
168. 100 U.S. 13 (1879).
169. See 12 Stat. 696 (1863); 12 Stat. 601 (1862).
170. United States v. Hendee, 124 U.S. 309 (1888) (naval officers); In re Bogart, 3
Fed. Cas. 796 (No. 1596) (C.C.D. Cal. 1873) (same); 13 Stat. 92 (1864), 12 Stat. 818
(1863), 12 Stat. 610 (1862), 12 Stat. 565 (1862) (not naval personnel?); Presidential
Message to Congress, 35th Cong., 2d Sess., EXEC. Doc. No. 2, particularly ch. II, arts. 9, 17,
ch. IV, art. 17 (naval officers?).
May 196 ] COURT-MARTIAL JURISDICTION 497
If these officers are not in the naval service [for purposes of the
statute], it may well be asked who are.17
This decision was reaffirmed in I895 on virtually identical facts,

except that the court-martial sat in an American port.72
On the surface these cases seem comparable to the recent cases
involving civilian employees.73 Much of the language used by the
Court in describing the relationship of the clerk to the Navy could
be applied to civilians employed by the armed forces today. Closer
analysis, however, reveals differences which lead me to believe that
basis for reasoned distinction exists between the two groups of
cases under standards articulated in the next section. Even if the
paymaster's clerks are viewed as civilians employed by the Navy,
they were integrated more closely into the forces and assigned
more of the privileges and duties of service personnel than the run
of present employees. This appears above in the excerpt from the
Court's opinion.74 More significantly, the Court was concerned
with a few persons serving singly or in small groups in scattered
locations, often on American naval ships at sea where captains
traditionally have held unique powers over the person and property
of those on board.'75
Following Ex parte Reed, the Supreme Court did not consider
military jurisdiction over civilians accompanying the armed forces
until after World War II.176 Meanwhile there were decisions in
lower federal courts upholding court-martial of civilian employees
in the United States as well as abroad during wartime.77 The
171. 100 U.S. at 21-22.

172. Johnson v. Sayre, 158 U.S. 109 (1895); accord, McGlensy v. Van Vranken, 163
U.S. 694 (1895) (memorandum decision). See also In re Bogart, 3 Fed. Cas. 796 (No.
1596) (C.C.D. Cal. 1873); United States v. Bogart, 24 Fed. Cas. 1184 (No. 14616)
(E.D.N.Y. 1869); In re Thomas, 23 Fed. Cas. 931 (No. 13888) (N.D. Miss. 1869).
173. Apparently there was no claim in Ex parte Reed that Congress lacked power to
extend military jurisdiction to persons in defendant's status. The question was whether the
statute reached that far. The Court therefore did not explicitly consider the constitutional
issue. However, it seems clear from the opinion that the Court would have upheld con-
gressional power had it been challenged.
174. See also authorities cited note 170 supra.
175. E.g., 5 Stat. 725 (1845): "[T]he commanding officer of any vessel, squadron or
fleet . . . when upon the high seas or in any foreign port where there is no resident consul
of the United States, shall be . . . authorized . . . to exercise all the powers of a consul
in relation to mariners of the United States." Cf. Robertson v. Baldwin, 165 U.S. 275, 280
(1897).
176. See pp. 498-99 infra.
177. Accompanying the armed forces outside the United States: Perlstein v. United
States, 151 F.2d 167 (3d Cir. 1945), cert. granted, 327 U.S. 777 (1946), dismissed as moot,
328 U.S. 822 (1946); Shilman v. United States, 73 F. Supp. 648 (S.D.N.Y.), rev'd in part
on other grounds, 164 F.2d 649 (2d Cir. 1947), cert. denied, 333 U.S. 837 (1948); In re
Berue, 54 F. Supp. 252 (S.D. Ohio 1944); In re Di Bartolo, 50 F. Supp. 929 (S.D.N.Y.
Government contended in Guagliardo that these cases supported

military jurisdiction, even in time of peace, over civilians employed
by the services in foreign countries. If the military could try em-
ployees in the United States where civilian courts were freely
functioning and the scene of battle distant, then a fortiori it could
try them in foreign lands where our forces are poised for hostile
action and we have no civilian courts. Although some might per-
ceive greater need for court-martial on the home front during war,
there is force in the Government's argument if one accepts these
lower court decisions. To me they are wholly unconvincing. Their
wartime acceptance of military jurisdiction seems too uncritical.
Few explicitly considered the constitutional issues involved, and
then only in the most fragmentary way.78
In Madsen v. Kinsella the Supreme Court was concerned with
the jurisdiction of a military "occupation court" sitting in post-
1943); Ex parte Gerlach, 247 Fed. 616 (S.D.N.Y. 1917). Contra, Hammond v. Squier,
51 F. Supp. 227 (W.D. Wash. 1943) (nonconstitutional grounds). Accompanying the
armed forces in the United States-court-martial jurisdiction allowed: McCune v. Kil-
patrick, 53 F. Supp. 80 (E.D. Va. 1943); Hines v. Mikell, 259 Fed. 28 (4th Cir.), cert.
denied, 250 U.S. 645 (1919); Ex parte Jochen, 257 Fed. 200 (S.D. Tex. 1919); Ex parte
Falls, 251 Fed. 415 (D.N.J. 1918). Contra, Ex parte Weitz, 256 Fed. 58 (Mass. 1919)
(nonconstitutional grounds); cf. Walker v. Chief Quarantine Officer, 69 F. Supp. 980
(D.C.Z. 1943) (same).
178. Incidentally, there is language in Reid v. Covert and its successors which, when
taken with their results, casts doubt on the wartime jurisdiction approved by these lower
court decisions. These decisions rested primarily on the premise that the employees involved
were serving with the armed forces "in the field" within the scope of what is now Article
2(10) of the Code. See text at note 24 supra. But both Mr. Justice Black in Reid and Mr.
Justice Whittaker in Singleton use language which seems incompatible with this premise.
Mr. Justice Black, joined by Mr. Chief Justice Warren, and Justices Douglas and Brennan,
wrote: "There have been a number of decisions in the lower federal courts which have up-
held military trial of civilians performing services for the armed forces 'in the field' during
'time of war.' To the extent that these cases can be justified, . . . they must rest on the
Government's 'war powers . . .' From a time prior to the adoption of the Constitution
the extraordinary circumstances present in an area of actual fighting have been considered
sufficient to permit punishment of some civilians in that area by military courts under
military rules. But neither Japan nor Great Britain could properly be said to be an area
where active hostilities were under way at the time Mrs. Smith and Mrs. Covert com-
mitted their offenses or at the time they were tried.... The exigencies which have
required military rule on the battlefront are not present in areas where no conflict exists.
Military trial of civilians 'in the field' is an extraordinary jurisdiction and it should not
be expanded at the expense of the Bill of Rights." 354 U.S. at 33-34, 35. (Footnotes
omitted; emphasis added.)
Mr. Justice Whittaker, speaking also for Mr. Justice Stewart, observed: "What is really
meant by the term 'in the field'? Seemingly, it does not mean 'in actual war' or even 'in
time of war.' 'The essential element was thought to be, not so much that there be war, in
the technical sense, but rather that the forces and their retainers be "in the field."' . . .
Historically, the term has been thought to include armed forces located at points where
the civil power of the Government did not extend or where its civil courts did not exist."
Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 273-74 (1960) (separate opinion).
To turn the Government's argument around, it seems difficult in terms of reason to
sustain court-martial over employees in this country when the civilian courts are open, even
in wartime, after the recent decisions striking it down abroad where we had no civilian
courts functioning.
World War II Germany to try a serviceman's wife for a capital

offense allegedly committed there.79 The wife argued that since
she was a dependent of a serviceman accompanying the armed
forces outside the United States she was subject to trial exclusively
by court-martial under the Uniform Code of Military Justice. The
Supreme Court nevertheless upheld the jurisdiction of the occupa-
tion court, relying upon long-standing authority permitting these
courts to try all persons present in conquered areas.'80 At the same
time it assumed the defendant could also have been tried by court-
martial-that the jurisdiction was concurrent. This assumption
does not bear the earmarks of a considered judgment, however; in
fact, both parties had conceded court-martial jurisdiction.
Mr. Justice Clark, dissenting in Reid, thought Madsen indistin-
guishable on its facts.'81 He acknowledged that the jurisdiction
exercised there was pursuant to the law of war, not military law.
But he regarded this as merely a difference in form, a difference
which should not be decisive in fixing congressional power. There
is merit in his contentions. When territory like Germany is occu-
pied forcibly there often remains no system of justice, let alone one
suitable to the conquerors. Laws must be promulgated, a system of
courts established. For a time military tribunals may be the only
courts practically available. At what point necessity for military
trial ceases may be a difficult question and one perhaps appropri-
ately left in large measure to the discretion of Congress and the
President. Even so, the case for military jurisdiction over American
citizens seems scarcely more compelling, apart from precedent, in
a situation like Madsen (trial in a substantially rehabilitated Ger-
many four years after hostilities ceased) than in Reid (trial in Eng-
land in 1953). Reduced to essentials, Madsen seems hard to dis-
tinguish. Surprisingly it was not mentioned in any of the opinions
in the recent series of decisions, and in Reid was brushed aside or
ignored except by Mr. Justice Clark.
IV. PROPOSED CRITERION
From this extended yet necessarily fragmentary survey of the

Constitution, of history, of traditional values, what conclusions
179. 343 U.S. 341 (1952). This court, established by the President as Commander in
Chief for the American zone of occupation, was made up at the time of civilians with legal
experience.
180. See the authorities collected by Mr. Justice Burton in 343 U.S. at 346-48, nn.
8-13.
181. See Reid v. Covert, 354 U.S. 1, 81-82 (1957).
may be drawn? To my mind these sources, as well as present con-

siderations of wise policy, indicate that under the Constitution
military trial of civilians should be regarded as an extraordinary
mode of procedure, one reluctantly allowed. Specifically, the
power of courts-martial to punish civilians accompanying or serv-
ing with the armed forces, whether in this country or overseas,
ought to be limited to the "least possible power adequate to the
end proposed."'82 Or to put it somewhat less epigrammatically,
the jurisdiction of military tribunals over these civilians ought to
be confined as narrowly as practicable in view of the military's
essential functions in our system of government.
These functions are obviously not susceptible to precise formu-
lation acceptable to all. Broad agreement could be obtained, how-
ever, that they involve effective defense of the nation from foreign
military aggression or dominance, and in case of stark necessity
the preservation of order, lives, property, and institutions during
domestic strife. So fixed, the test proposed remains imprecise,
hardly self-applying. It would have to be applied with conviction,
intelligence, and imagination to different classes of situations. It
acknowledges that no "litmus-paper" test can be fashioned which
mechanically will produce appropriate results in every situation.
But it does offer a basic approach, a guide, to solution of issues in
this area which will not only be helpful in deciding concrete cases
in a rather predictable way but in a manner that is consistent with
our traditions. This is about the most one can normally expect of
constitutional doctrine.
Examination of the nature of military justice substantiates this
basic approach. Historically, military law and procedures have
been characterized by major deficiencies when compared with ci-
vilian criminal justice in light of traditional libertarian values.l83
True, significant reforms have recently been effected,l84 reforms
182. Anderson v. Dunn, 5 U.S. (6 Wheat.) 204, 231 (1821). In substance this was
the Court's attitude in Toth, 350 U.S. at 23, and surprisingly the one manifested by
Mr. Justice Clark dissenting in Reid, 354 U.S. at 86.
183. "The principal criticisms were as follows: courts-martial were controlled by the
commanding officer who appointed them; court members and appointed counsel (par-
ticularly defense counsel) were inept and untrained amateurs; there was no genuine
appellate review by a body outside of the military chain of command; there was no
equality of justice, as the punishments for the same offense varied greatly; enlisted per-
sonnel were deprived of the right to be tried by courts including other enlisted men in
their membership." Mullally, Military Justice: The Uniform Code in Action, 53 COLUM.
L. REV. 1 n.4 (1953). For discussion of these and other deficiencies see the authorities col-
lected ibid. See also Hearings on HJR. 2498 Before a Subcommittee of the House Com-
mittee on Armed Services, 81st Cong., 1st Sess. (1949).
184. Mullally, supra note 183. See generally S. REP. No. 486, 81st Cong., 1st Sess.
May 1961] COURT-MARTIAL JURISDICTION 501
attributable in large measure to the reaction of "civilians" (both in

and out of uniform) to the imperfect operation of military law dur-
ing the two great world wars.'85 These improvements are almost
exclusively statutory or administrative but retrogression appears
unlikely in the foreseeable future.'86 To date, the federal courts
have been reluctant to require that military trials observe safeguards
of the Bill of Rights or other constitutional provisions.87 But there
is reason to anticipate they will eventually insist that military justice
comport with fundamental notions of fairness.'88
Recent reforms and such others as may ensue will not eliminate
the "deficiencies" of court-martial, however. First, a gulf appears
between the values held by the professional military and those
implicit in the liberalism which has dominated the nation, in one
form or another, from the beginning. Appropriately reflecting
their grim business, the military attach greater weight to prompt
and unquestioning obedience of commands, to the cohesion and
safety of the group.
The military ethic is basically corporative in spirit. It is fundamentally
anti-individualistic. . . .189
[It] emphasizes the permanence, irrationality, weakness, and evil in

human nature. It stresses the supremacy of society over the individual
and the importance of order, hierarchy, and division of function ... .190
Accordingly military law emphasizes different objectives than does

civilian penal law. In many respects it is severe law, law cast in
very sweeping terms; law which stresses "summary procedures,
speedy convictions and stern penalties with a view to maintaining
(1949). These are reforms in the sense that procedures have been brought more nearly
into line with concepts prevalent in nonmilitary courts-in particular by establishment of
a three-man civilian court of military appeals to review questions of law raised by court-
martial proceedings, by provision of competent legal counsel at trial, and by restricting
the influence of convening officers.
Many of these reforms do not affect special or summary courts-martial. See Mullally,
supra note 183. The former, typically a panel of three military officers, more often than
not without legal training, has power to impose any punishment permitted by the Code
except death or imprisonment for more than six months so far as civilian offenses are
concerned. The summary court, composed of one officer, may imprison or limit move-
ment for short periods, or order forfeiture of two-thirds of one month's pay. From the
Government's figures, see note 204 infra, it would appear most civilians have been tried
in one of these "inferior" courts-typically, probably, for traffic offenses.
185. See, e.g., Hearings on H.R. 2498, supra note 183.
186. But see Walsh, Military Law: Return to Drumhead Justice?, 42 A.B.A.J. 521
(1957). Compare Hamilton, Drumhead Justice Is Dead!, 43 A.B.A.J. 797 (1957).
187. See, e.g., Burns v. Wilson, 346 U.S. 137 (1953).
188. For a perceptive discussion see Wiener, Courts-Martial and the Bill of Rights:
The Original Practice II, 72 HARV. L. REV. 266, 294-304 (1958).
189. HUNTINGTON, THE SOLDIER AND THE STATE 64 (1957).
190. Id. at 79. Undoubtedly there is an element of hyperbole in the quoted passages,
but they seem to contain a substantial measure of truth.
obedience and fighting fitness in the ranks."'9' General Sherman

once stated:
The object of the civil law is to secure to every human being in a com-
munity all the liberty, security, and happiness possible, consistent with
the safety of all. The object of military law is to govern armies composed
of strong men, so as to be capable of exercising the largest measure of
force at the will of the Nation.
These objects are as wide apart as the poles, and each requires its
own separate system of laws-statute and common.192
To which another able lawyer-soldier has added:

As to the [object, nature, and amount of punishment] the standards
of the civil and military law are entirely different-because their objects
are so diametrically opposed. The civil law aims, in some degree at least,
to reform offenders; a defendant with a clean record is quite frequently
placed on probation after his first offense. But the object of the military
law is not reform, at least not until the offender reaches the disciplinary
barracks or the rehabilitation center. The object of the military law's
punishment is to act as a deterrent, to give the first offenders such a slug
that others will profit by that example and not do likewise. In striking
a hard blow at the first man to step out of line, there is assurance that
his fellows will not be tempted to err in similar fashion. Every person
who has ever been around an army knows that it is not just penological
theorizing but a fact ....193
The nature of the court-martial is also quite different from its

civilian counterpart. It is still typically an ad hoc body appointed
by a military officer from among his subordinates.'94 Frequently
the same officer who picks the court also decides whether formal
charges shall be filed and has final authority to choose the prose-
cutor, the defense counsel, and the legal officer who advises the
court.'95 The much mooted opportunity for "command control"
is obvious, especially since the convening authority has both the
right and responsibility to review all proceedings, and members of
the court as well as other appointees often are dependent upon him
for assignments, promotions, efficiency ratings-in short, for their
future careers in the service. Conviction that widespread injustice
191. Reid v. Covert, 354 U.S. 1, 35-36 (1957) (Black, J., concurring).
192. Quoted by Frederick Bernays Wiener, in Hearings on H.R. 2498, supra note
183, at 780.
193. Statement of Frederick Bernays Wiener in Hearings on S. 857 Before a Subcom-
mittee of the Senate Committee on Armed Services, 81st Cong., 1st Sess. 140 (1949).
194. See Burns v. Wilson, 346 U.S. 844, denying rehearing of 346 U.S. 137 (1953)
(separate opinion of Frankfurter, J.).
195. See UNIFORM CODE OF MILITARY JUSTICE arts. 22-24, 26-27, 10 U.S.C. ?? 822-
24, 826-27 (1958).
had resulted from "command control" led Congress first to direct

the convening authority not to censure or admonish any member
of the court-martial or counsel for their activities in connection
with a trial,196 then to provide criminal penalties for such inter-
ference.l97 Nevertheless it is problematical how much significance
this and several other minor safeguards have had in curbing the
influence of the convening authority, who quite understandably
may feel much is at stake in the action of the tribunals he has
appointed.198 It does seem safe to conclude that "members of a
court-martial, in the nature of things, do not and cannot have the
independence of jurors drawn from the general public or of civilian
judges."'99 Indeed "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."200 The problem is not
so much form but substance.
V. APPLICATION OF THE PROPOSED CRITERION TO THE

PRINCIPAL CASES
Is it essential to the military's adequate performance of its lim-

ited functions that courts-martial have jurisdiction to apply military
law to civilians accompanying the armed forces abroad? Intelli-
gent response depends on an evaluation of the military need for
discipline among these persons, and of the availability and efficacy
of restraints other than military law. Of course the necessity for
court-martial jurisdiction will fluctuate from one foreign area to
another, from one group of civilians to another, from one kind of
offense to another. However, it seems undesirable that jurisdiction
be resolved on the precise facts of each case-either by reference to
the broad principles developed above or pursuant to some elaborate
scheme gradually developed by the judiciary. Courts-martial are
not competent, on the whole, to apply imprecise or complex con-
stitutional criteria to their jurisdiction; appeal through the hier-
archy of military and civilian courts would undoubtedly produce
delay and other inconvenience. Rather hard and fast rules seem
196. See UNIFORM CODE OF MILITARY JUSTICE art. 37, 10 U.S.C. ? 837 (1958).
197. See UNIFORM CODE OF MILITARY JUSTICE art. 98, 10 U.S.C. ? 898 (1958).
198. Compare Note, Judicial Checks on Command Influence Under the Uniform
Code of Military Justice, 63 YALE L.J. 880 (1954), with WIENER, THE UNIFORM CODE OF
MILITARY JUSTICE 3-4 (1950).
199. Reid v. Covert, 354 U.S. 1, 36 (1957) (Black, J.).
200. United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).
appropriate for cases falling roughly into the same class-rules

fashioned so that the general principles set forth above are most
nearly implemented over the class as a whole.
As stated before, approximately one-half million American
civilians are now serving or accompanying the armed forces over-
seas.20' Probably this figure could be reduced substantially without
impairing military strength;202 yet it seems clear there will be com-
pelling need for numerous dependents and specially trained civil-
ians abroad during the foreseeable future.203 Unless there be an
abrupt change in human nature, this large contingent will con-
tinue to raise problems of antisocial conduct-problems which
could impair the general effectiveness of the forces if not handled
appropriately.204 For example, necessary cooperation by foreigners
would disappear if accompanying civilians could disregard foreign
interests with impunity.
To accommodate military needs something more than informal
moral condemnation or group self-help appears essential. What
sanctions are available apart from criminal punishment by courts-
martial ?205 Perhaps the appropriate place to begin is with non-
202. Innocuous reduction might come through substitution of military personnel for
civilian employees, curtailment of emigration assistance to dependents of certain classes
of servicemen, or changes in weapons technology requiring smaller foreign military estab-
lishments.
203. In November 1960 President Eisenhower directed the Secretary of Defense to
reduce the number of dependents and employees accompanying the services abroad to
approximately 200,000, at the rate of 15,000 per month, beginning January 1, 1961. This
order was designed to help redress an unfavorable balance of payments. New York Times,
Nov. 17, 1960, p. 1, col. 8. This order produced much protest and reputedly had a dele-
terious effect on the morale of servicemen overseas. It was subsequently revoked by Presi-
dent Kennedy.
204. According to Government statistics there were 5,026 cases involving civilian
employees or dependents from December 1, 1954, to November 30, 1958, which were
subject to the primary jurisdiction of foreign nations. Brief for the Petitioners, pp. 74-75,
McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960). These statistics do
not include offenses by civilians where the United States had primary or exclusive juris-
diction (probably a relatively small number). Elsewhere the Government produced figures
showing that 2,454 civilians were tried by Army courts-martial from 1950 through 1956
(181 by general court-martial, 2,273 by special or summary courts). Supplemental Brief
for Appellant and Petitioner on Rehearing, pp. 30-31, Reid v. Covert, 354 U.S. 1 (1957).
Information for later years or for the Navy and Air Force was not given.
205. Suggestion has been made that military jurisdiction might be perpetuated by re-
quiring civilians to agree before being sent overseas that they could be court-martialed for
conduct condemned by military law. This seems dubious. Constitutional "rights" can be
"waived" in certain situations, but only subject to restrictive limitations. See, e.g., Johnson
v. Zerbst, 304 U.S. 458 (1938). Among other things, waiver must be "voluntary." It is
problematical whether the courts would thus characterize assent by dependents given so
they might join their service relatives abroad. The Court has also cast doubt, inferentially
at least, on the efficacy of "general" waivers, granted prior to the commission of any offense,
concerning the mode of trial. See, e.g., Adams v. United States ex rel. McCann, 317 U.S.
269, 277-78 (1942): "We have already held that one charged with a serious federal crime
may dispense with his Constitutional right to jury trial, where this action is taken with his
criminal "administrative" deterrents. Privileges such as use of post

exchanges or driver's licenses may be denied or restricted. Em-
ployees can be down-graded, suspended or even discharged for mis-
conduct. Status as a member of the contingent may be termi-
nated, thus, as a practical matter, necessitating return to the United
States.206 Beyond this, numerous prophylactic steps are avail-
able-among others, screening of employees, careful patrol of bases,
temporary incapacitation of suspected wrongdoers pending asser-
tion of jurisdiction by a competent tribunal. Handled wisely,
these different measures can make a large contribution toward
observance of minimal standards by civilians without unduly sacri-
ficing their interests. Realistically, however, restraints of this kind
often would not be potent deterrents to misbehavior. Nor in many
cases would they accomplish that rough equalization between cul-
pability and retribution which society seems to expect, or lead to
incapacitation of the dangerous or treatment of the corrigible.
In short, some type of criminal sanction seems indispensable
for various kinds of serious wrongdoing. In this respect the most
obvious alternative to court-martial is trial by foreign courts, just
as civilians attached to the armed services in this country are tried
by civilian courts where the alleged offense occurred.20 The prin-
cipal shortcoming perceived in foreign trials is that foreign gov-
ernments will not condemn certain conduct inimical to Ameri-
can interests (for example, disclosure of our military confi-
dences, employee insubordination, fraud against the United
express, intelligent consent, where the Government also consents, and where such action is
approved by the responsible judgment of the trial court. See Patton v. United States, 281
U.S. 276 . . . [1930]. And whether or not there is an intelligent, competent, self-protect-
ing waiver of jury trial by an accused must depend upon the unique circumstances of each
case."
Perhaps more decisive, the gist of the recent decisions seems to be that congressional
power to authorize court-martial does not extend under the Constitution to offenses by
civilians accompanying the forces. See p. 516 infra. If this be the case it is hard to
perceive how the consent of affected individuals can render these tribunals competent. Ex
parte Reed, 100 U.S. 13 (1879), discussed supra at p. 496, is not authority for such propo-
sition. There the paymaster's clerk's written submission to military justice apparently was
just one of several factors which induced the Court to regard him as "in the naval service"
for statutory purposes.
Finally it would render the recent decisions futile, an empty triumph of form over sub-
stance, if they could routinely be evaded by obtaining signatures authorizing court-martial
jurisdiction from civilians anxious to go abroad. The objections to military trial would
scarcely be ameliorated.
206. Historically, expulsion from the camp along with restriction of privileges has
commonly been used to obtain discipline among civilians accompanying the forces. See,
e.g., the opinion of Judge Advocate General Holt, text at note 138 supra.
207. International law poses no barrier to exercise of such jurisdiction by the foreign
territorial sovereign; a fact acknowledged by existing status of forces agreements. See note
14 supra.
States); nor will they be much concerned about prosecuting mis-

conduct involving only Americans or American property or se-
curity even though condemned by their laws.208
There is basis obviously for this apprehension, but the shortcom-
ings of foreign trial lend themselves to overstatement. Much of
the misconduct specifically mentioned as requiring United States
jurisdiction would not only be an offense against foreign law but
an offense which the foreign country would be primarily interested
in punishing.209 Here one might include such matters as trans-
gression of local currency and economic regulations, traffic viola-
tions, and infringement of alcoholic beverage controls. Further-
more, a large measure of cooperation can be anticipated from other
governments in helping our authorities maintain necessary disci-
pline in the civilian contingent.210 American forces are presumably
there as much for their benefit as ours.
Mr. Justice Clark in Singleton speculated that the prospect of
foreign trial might be a greater deterrent in many situations than
the possibility of court-martial.21 If true, this is probably due in sig-
nificant part to the pervasive yet generally fallacious view that
foreign law falls more harshly on defendants. This misconception
underlies another common argument in favor of military juris-
diction, namely that trial by court-martial operates more fairly to
the accused than trial in a foreign court.212 To me this argument
appears not only unwarranted but largely irrelevant. In the first
place, criminal justice in most countries where the United States
has sizable forces is about as "civilized" as that administered by our
own courts-certainly by our military courts.213 This is hardly dis-
208. See, e.g., United States ex rel. Guagliardo v. McElroy, 259 F.2d 927, 939 n.4
(D.C. Cir. 1958) (Burger, J., dissenting).
209. See Supplemental Brief for Appellant and Petitioner on Rehearing, p. 97, Reid
v. Covert, 354 U.S. 1 (1957). "The debates in the House of Commons before passage of
the Visiting Forces Act implementing SOF in the United Kingdom reveal strong oppo-
sition on the part of many members to any recognition of American jurisdiction at all.
One member found it prima facie shocking to exempt large groups from the criminal
jurisdiction of British courts, and another questioned whether this exemption should ex-
tend to dependents at all. It was stated that 'even where the death of a British subject is
not involved, the actual killing of someone on our territory and normally within our juris-
diction is an extremely serious matter.'" SNEE & PYE, STATUS OF FORCES AGREEMENTS:
CRIMINAL JURISDICTION 43-44 (1957).
210. See NATO Status of Forces Agreement art. VII, para. 11: "Each Contracting
Party shall seek such legislation as it deems necessary to ensure the adequate security and
protection within its territory of installations, equipment, property, records and official
information of other Contracting Parties, and the punishment of persons who may con-
travene laws enacted for that purpose."
211. 361 U.S. 234, 245-46 (1960).
212. Reid v. Covert, 354 U.S. 1, 89 (Clark, J., dissenting).
213. Schwenk, Comparative Study of the Law of Criminal Procedure in NATO
putable with respect to our English-speaking and European allies.

Foreign courts have tried many Americans under existing status of
forces agreements. From all appearances these trials have been
characterized by a spirit of moderation, even leniency.214 Should
foreign trial prove unjust the United States is not helpless to protect
its citizens.215 Punishment by other nations may result of course
in imprisonment away from relatives and friends and with limited
possibilities for parole. These and other unique hardships that in-
here in foreign trial provoke sympathy, but I do not think them
significant in fixing the proper scope of court-martial jurisdiction.
The critical question is whether such jurisdiction is essential to the
military's effective performance of its limited functions.
In my judgment foreign trial will provide a large share of the
criminal sanctions necessary for our forces, but it leaves important
gaps. Some provision should be made for American criminal trial,
at least in "security cases" and serious cases involving United States
property or personnel where the conduct is not illegal under foreign
law or the foreign government has no enthusiasm for prosecution.
Trial by federal district courts in the United States has been
proposed to meet the need.216 To accomplish this, Congress would
have to augment United States civilian criminal law applicable to
citizens in foreign territory.217 This would pose no theoretical diffi-
Countries under the NATO Status of Forces Agreement, 35 N.C.L. REV. 358 (1957); see
SNEE & PYE, STATUS OF FORCES AGREEMENT: CRIMINAL JURISDICTION 129-43 (1957).
214. See id. at 124; Hearing on Operation of Art. VII, NATO Status of Forces Treaty,
Before a Subcommittee of the Senate Committee on Armed Services, 86th Cong., 2d Sess.
11, 27 (1960); Note, 70 HARV. L. REV. 1043, 1046 (1957).
215. One obvious possibility would be diplomatic intervention. In this respect see the
Resolution appended by the Senate in giving its consent to the NATO Status of Forces
Agreement. The agreement itself obligates each signatory to provide various procedural
safeguards to members of the military contingents of other participants tried in its courts.
Article VII, para. 9. Still another approach is suggested by legislation authorizing the Secre-
taries of the three military departments to employ counsel and to pay expenses incidental
to their representation before foreign tribunals of "persons subject to the Uniform Code of
Military Justice." 10 U.S.C. ? 1037 (1958). Extension of this legislation to civilians ac-
companying the forces who are not subject to the Code is now being studied. 1960 Hearing
on NATO Art. VII, supra note 214, at 5.
216. See id. at 4. Indeed, the House passed a bill, H.R. 4154, 86th Cong., 1st Sess.
(1959), which provides: "The trial of all offenses begun or committed upon the high seas,
or elsewhere out of the jurisdiction of any particular State or district, shall be in the district
in which the offender, or any one of two or more joint offenders, is arrested or is first
brought; but if such offender or offenders are not so arrested or brought into any district,
an indictment or information may be filed in the district of the last-known residence of the
offender or of any one of two or more joint offenders, or if no such residence is known the
indictment or information may be filed in the District of Columbia."
217. The Court has stated that "legislation of Congress, unless the contrary intent
appears, is construed to apply only within the territorial jurisdiction of the United States."
Blackmer v. United States, 284 U.S. 421, 437 (1932). But it has added, "a criminal
statute dealing with acts that are directly injurious to the government, and are capable
of perpetration without regard to particular locality, is to be construed as applicable to
culty under established principles of international law,28 nor, ap-

parently, under the Constitution."29 Congress could rely on its
power either "To make Rules for the government and Regulation
of the land and naval Forces,"220 or "to enact legislation for the
effective regulation of foreign affairs.""22' Article III, section 2,
seemingly contemplates trial in the United States of offenses com-
mitted without its boundaries.222 From the beginning, Congress
has provided for trial of such crimes "in the [federal judicial] dis-
trict where the offender is apprehended, or into which he may first
be brought."223
Trial in the United States does involve a number of vexing
problems, however. Suspected offenders often would choose exile,
even confiscation of property, rather than return to face serious
criminal charges. American authorities could only arrest and re-
move them to this country with the acquiesence and cooperation
of foreign governments. At present we have no such authority.224
Traditionally, involuntary removal has been effected under treaties
of extradition wherein the foreign power agrees, in its complete
discretion, to surrender persons charged with specified offenses
against the United States.225 Though we have such treaties with
many nations, it is doubtful whether they extend to crimes com-
mitted outside this country. Rather ambiguously, they speak typi-
citizens of the United States upon the high seas or in a foreign country, though there be
no express declaration to that effect." Skiriotes v. Florida, 313 U.S. 69, 73-74 (1941).
At present few criminal statutes explicitly extend beyond United States territory. See Note,
71 HARV. L. REV. 712, 717 (1958). It is difficult to anticipate how the Court would inter-
pret the remainder in the present context.
More significantly, existing federal criminal law applies to only a few of the offenses
that it ought to reach in order to satisfy military needs. Outside the District of Columbia
and territories federal courts have no general criminal jurisdiction. See generally HART &
WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1086-1100 (1953).
218. "The law of Nations does not prevent a State from exercising jurisdiction over
its subjects travelling or residing abroad, since they remain under its personal supremacy."
Blackmer v. United States, 284 U.S. 421, 437 n.2 (1932) (citing authorities). See also
RESEARCH IN INTERNATIONAL LAW, JURISDICTION WITH RESPECT TO CRIME 519 (AM. J.
INT'L L. SUPP., 1935): "The competence of the State to prosecute and punish its nationals
on the sole basis of their nationality is universally conceded."
219. See Blackmer v. United States, supra note 218; United States v. Bowman, 260
U.S. 94 (1922); Chandler v. United States, 171 F.2d 921 (lst Cir. 1948), cert. denied,
336 U.S. 918 (1949).
220. U.S. CONST. art. I, ? 8.
221. Perez v. Brownell, 356 U.S. 44, 57 (1958).
222. The section is set forth at p. 479 supra.
223. 1 Stat. 114 (1790). With insignificant modification in language this provision
is now 18 U.S.C. ? 3238 (1958).
224. "Although the United States has a statute [See 18 U.S.C. ? 3042 (1952)] pro-
viding for arrest in foreign countries which consent to such an exercise of extraterritorial
jurisdiction, this statute is apparently inoperative as no country seems to have authorized
such arrests." Note, 71 HARV. L. REV. 712, 724 (1958).
225. See HAWLEY, INTERNATIONAL EXTRADITION 25-26 (1893).
cally of crimes "committed within the jurisdiction of one of the

contracting parties."226 This language might cover any offense
which a party could punish under international law, but the prac-
tice, apparently, has been to confine it to crimes committed within
the territory of the nation seeking extradition.22"
Nevertheless, most foreign nations probably would be ame-
nable to suitable arrangements for the arrest and removal of Amer-
ican civilians accompanying the forces, at least in needful cases
where the foreign state has no appreciable interest in prosecuting
the alleged offender. This might require extensive negotiation,
but in the end there seems no more reason why foreign coopera-
tion should be denied than under the status of forces agreements
which authorize our military authorities to arrest civilians subject
to military law and to remove them to the United States after con-
viction.
Along the same line, I believe the cost, delay and disruptive
effect on military operations of trial in the United States has been
greatly exaggerated. Today, military and other aircraft incessantly
cross the oceans in hours; communication is practically instantane-
ous with the most distant points. Undoubtedly trial in this country
would produce inconvenience, but it is difficult to conceive of it
crippling any significant military function.
The formidable problems concern witnesses. Assuming the sus-
pect can be brought to the United States, can the presence of wit-
nesses and evidentiary objects necessary to meaningful trial be se-
cured? This poses no real difficulty where servicemen are in-
volved.228 Similarly, sufficient pressure could ordinarily be exerted
on recalcitrant American civilians. 229 But foreign nationals are a
different matter. Perhaps many could be persuaded to come volun-
tarily, but should they refuse there are no existing means to compel
their participation in a criminal trial here. Moreover, it is unlikely
226. E.g., Treaty with France on Extradition, Jan. 6, 1909, art. I, 37 Stat. 1527, T.S.
No. 561 (effective July 27, 1911).
227. See HAWLEY, INTERNATIONAL EXTRADITION 22-23 (1893). Another important
limitation on extradition is that traditionally it has not been available for "political" offenses.
The concept of "political" offenses is highly imprecise, but it has been suggested that it
includes "treason, sedition and espionage, . . . any offense connected with the activities
of an organized group directed against the security or governmental system of the request-
ing State; and . . . does not exclude other offenses having a political objective." RESEARCH
IN INTERNATIONAL LAW, DRAFT CONVENTION ON EXTRADITION art. 5(b), at 112-13 (29
AM. J. INT'L L. SUPP., 1935).
228. See, e.g., United States v. Sinigar, 6 U.S.C.M.A. 330, 20 C.M.R. 46 (1955); 10
U.S.C. ?? 890-92, 934 (1958).
229. Compare Blackmer v. United States, 284 U.S. 421 (1932).
5IO STANFORD LAW REVIEW [Vol. 13: Page 461
that foreign states would provide any comprehensive system of

compulsion.
Depositions of witnesses unable or unwilling to attend the
trial could be used.230 Again, the United States would have
to look to foreign governments for necessary cooperation. Their
assistance seems much more likely, however, than if we asked
them to compel their nationals to come to the United States. There
is precedent for foreign compulsion, letters rogatory being an es-
tablished institution even in penal matters.231 Furthermore, under
the status of forces agreements signatories have promised to assist
each other "in the carrying out of all necessary investigations into
offenses, and in the collection and production of evidence, includ-
ing the seizure and, in proper cases, the handing over of objects
connected with an offense."232
Introduction of deposition testimony by the prosecution would
raise serious constitutional questions under the sixth amendment
which requires that "in all criminal prosecutions, the accused shall
. . . be confronted with the witnesses against him." The Supreme
Court has acknowledged certain exceptions to the literal scope of
this provision, exceptions "recognized long before the adoption of
the Constitution" or compelled by "the necessities of the case,"233
but it has not yet ruled on the admissibility of depositions. Use of
depositions seems analogous to use of testimony from an earlier
trial. The Court has held such testimony admissible against the
defendant where the witness has since died, provided defendant's
230. At present there is no provision which would permit the prosecution to take the
depositions of witnesses or use them at trial. FED. R. CRIM. P. 15 authorizes use of depo-
sitions only by the defendant. Article 49 of the UCMJ, 10 U.S.C. ? 849 (1958), per-
mits the prosecution, as well as the defendant, to take depositions and to introduce them
in evidence in noncapital cases if the deponent is dead, infirm, distant, or for other good
reason not available in person.
231. See, e.g., LEAGUE OF NATIONS COMMITTEE OF EXPERTS FOR THE PROGRESSIVE
CODIFICATION OF INTERNATIONAL LAW, COMMUNICATION OF JUDICIAL AND EXTRA-JUDICIAL
ACTS IN PENAL MATTERS AND LETTERS ROGATORY IN PENAL MATTERS 46, 57 (22 AM. J.
INT'L L. SPEC. SUPP., 1928) (League of Nations Pub. No. V Legal. 1927 V. 6). But see
In the Matter of Letters Rogatory (9th Cir. 1909), in 3 AM. J. INT'L L. 1011, 1012 (1909):
"Article 6 of the Amendments to the Constitution of the United States provides that: 'In
all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the
witnesses against him.' Testimony obtained by letters rogatory in foreign countries would
not therefore be admitted in evidence against the accused in a criminal case in this country,
and it would seem to follow that the courts of the United States would not authorize the
taking of a deposition to be used in a criminal case in a foreign country unless such
authority was expressly conferred by a statute."
232. E.g., NATO Status of Forces Agreement, art. VII, para. 6(a).
233. Mattox v. United States, 156 U.S. 237, 243-44 (1895) (testimony of deceased per-
son at previous trial); see Kirby v. United States, 174 U.S. 47, 61 (1899) (dictum) (dying
declarations); Robertson v. Baldwin, 165 U.S. 275, 282 (1897) (dictum) (dying declara-
tions).
May I96 ] COURT-MARTIAL JURISDICTION 5"I
counsel had full opportunity to interrogate the witness with respect

to the issues involved in the subsequent trial.234 There has been no
decision where the witness is alive but beyond the jurisdiction-
the situation contemplated here.235 In state courts the dominant
tendency is to admit the prior testimony in such situations.236 De-
spite the analogy, however, courts have been more reluctant to
permit similar use of depositions.237
Overall it appears uncertain whether the Court would allow the
Government to introduce depositions of foreign witnesses in the
present situation, even assuming defendant's counsel had a full
opportunity to cross-examine deponents.238 The necessities are
great, the shortcomings of extra-judicial testimony are minimized,
and the Court would feel some responsibility for the Government's
plight.239 Yet important interests are at stake, and the Court has
recently reaffirmed the great value it attaches to the right of con-
frontation.240 However the constitutional issue be resolved, the fact
remains that deposition testimony is often a poor substitute for
testimony in person, a fact that could work to the prejudice of
either prosecution or defense.
In sum, trial before civilian courts in this country would prob-
ably suffice for many cases where United States criminal jurisdic-
tion over civilians accompanying the forces proves essential. In
others, such trial would be impossible or merely formal. Often it
would be uncertain until an offense had occurred, or even trial was
under way, whether the Government would have a fair opportun-
ity to convict or the accused to defend.
The deficiencies of domestic trial raise the possibility of trial by
234. Mattox v. United States, 156 U.S. 237 (1895).

235. Compare West v. Louisiana, 194 U.S. 258 (1904). Here the Court found no
violation of the fourteenth amendment where the state had used testimony by a witness
still alive but permanently without the state, which had been given at a preliminary hearing
subject to cross-examination by defendant's counsel. The Court pointed out that the case
raised no question under the sixth amendment, and expressly refrained from any intimation
whether use of such testimony under similar circumstances in a federal prosecution would
have been permissible.
236. 5 WIGMORE, EVIDENCE ? 1404 & nn.5 & 6 (3d ed. 1940).
237. See id. ?? 1398, 1401, 1418.
238. There is language in Dowdell v. United States, 221 U.S. 325, 330 (1911), which
can be interpreted as condemning prosecution use of depositions under the sixth amend-
ment. For a contrary dictum see Kemp v. Canal Zone, 167 F.2d 938, 940 (5th Cir. 1948).
239. Wigmore, as well as others, has vigorously argued that any testimony subjected
to thorough cross-examination should be admissible in a criminal trial despite the confron-
tation clause. "[I]f the accused has had the [right] of cross-examination, he has had the
very privilege [of confrontation] secured to him by the Constitution .... The right to
subject opposing testimony to cross-examination is the right to have the Hearsay rule
enforced." 5 WIGMORE, EVIDENCE ? 1397, at 130 (3d ed. 1940).
240. See Greene v. McElroy, 360 U.S. 474 (1959).
American civilian courts sitting in foreign countries. It seems clear

that Congress has power to establish such courts and to authorize
them to try criminal cases, so long as it observes requisite procedu-
ral safeguards. Congressional authority can be traced to the same
sources as its power to make United States law applicable to de-
pendents and employees overseas.241 In In re Ross242 the Supreme
Court upheld the criminal jurisdiction of a United States civilian
tribunal sitting in Japan. Other points made in Ross have been
repudiated or narrowly limited by subsequent cases, but doubt has
not been cast upon Congress' power to establish civilian trial
abroad.243 Indeed, Justices Frankfurter and Harlan, concurring in
Reid, and Mr. Justice Clark, dissenting there, implicitly acknowl-
edge this power by discussing the form such trial would have to take
and its practicability as an alternative to court-martial.244
What kind of courts may Congress establish abroad and what
procedures must they follow? Article III declares, "The judi-
cial Power of the United States, shall be vested in one Supreme
Court, and in such inferior Courts as the Congress may from time
to time ordain and establish. . . . [It] shall extend to all Cases, in
Law and Equity, arising under this Constitution, [or] the Laws of
the United States .... ." From the broad sweep of these provisions
one might conclude they exhaust the federal power to create courts.
But the contrary is well settled. Congress, acting outside article III,
can establish "legislative courts" to implement its designated pow-
ers, and to some extent can grant these courts jurisdiction over
cases which qualitatively appear to possess all the characteristics
of cases triable in the "constitutional courts" authorized by article
III.245
As noted before, judges of "constitutional courts" hold office
during "good Behaviour" and their compensation cannot be "di-

242. 140 U.S. 453 (1891).
243. "The United States Court for China and the consular courts are legislative courts
created as a means of carrying into effect powers conferred by the Constitution respecting
treaties and commerce with foreign countries. They exercise their functions within par-
ticular districts in foreign territory and are invested with a large measure of jurisdiction
over American citizens in these districts. The authority of Congress to create them and to
clothe them with such jurisdiction has been upheld by this Court and is well recognized."
Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929). (Footnotes omitted.)
244. 354 U.S. at 64 (Frankfurter, J., concurring); id. at 76 n.12 (Harlan, J., con-
curring); id. at 86-87 (Clark, J., dissenting).
245. See Williams v. United States, 289 U.S. 553 (1933); Ex parte Bakelite Corp., 279
U.S. 438 (1929); Katz, Federal Legislative Courts, 43 HARV. L. REV. 894 (1930); Note, 34
COLUM. L. REV. 746 (1934).
May I96 ] COURT-MARTIAL JURISDICTION 5I3
minished" once they ascend to the bench.246 These courts will not
render advisory opinions or judgments subject to congressional or
executive review,247 nor can they be assigned nonjudicial duties
except in the District of Columbia.248 Judges of "legislative courts,"
on the other hand, hold no such constitutional guarantee of tenure
or salary, 249 and their courts apparently may be assigned nonju-
dicial functions as well as directed to provide advisory opinions.250
Otherwise, the differences between the two types of courts are ob-
scure-particularly with respect to the power of Congress to con-
fer article III judicial power on legislative courts and non-article
III judicial power on constitutional courts.
On principle, trial by an American civilian court of alleged
crimes against the laws of the United States, even in a foreign
country, seems a manifest exercise of article III judicial power.
Criminal prosecutions under the "Laws of the United States" have
always formed a staple part of the business of constitutional courts.
Nevertheless there are cases indicating that criminal trials outside
the states (and probably the District of Columbia) do not come
within article III.251 The reasoning is hardly persuasive: (i) legis-
lative courts can properly exercise jurisdiction in these cases; (2)
they cannot receive article III judicial power; (3) therefore the
jurisdiction must be attributable to some other source.
Despite these decisions it seems inconceivable that Congress
could not confer jurisdiction on article III courts (say federal dis-
trict courts sitting regularly in this country) to try offenses abroad.
If the trials be regarded as an exercise of non-article III judicial
power, they presumably involve no inroad on the jurisdiction of
state courts, traditionally a matter of great concern in delimiting
federal judicial authority. Indeed one might argue that restraints
imposed by article III on federal power apply only where state
power would be affected.252 To the contrary, however, a majority
246. O'Donoghue v. United States, 289 U.S. 516, 551 (1933).
247. See Chicago & So. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 112 (1948).
248. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 592 (1949);
as for the District of Columbia see O'Donoghue v. United States, 289 U.S. 516, 551 (1933);
Keller v. Potomac Elec. Power Co., 261 U.S. 428 (1923).
249. See Williams v. United States, 289 U.S. 553 (1933); McAllister v. United States,
141 U.S. 174 (1891).
250. See Ex parte Bakelite Corp., 279 U.S. 438, 454 (1929); Katz, supra note 245,
at 897-99; Note, 34 COLUM. L. REV. 344 (1934).
251. This was first stated in American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546
(1828), and since repeated in a series of dicta. See, e.g., Williams v. United States, 289
U.S. 553, 578 (1933); O'Donoghue v. United States, 289 U.S. 516, 535-36 (1933); Ex
parte Bakelite Corp., 279 U.S. 438, 449 (1929).
252. There is some authority for the proposition that article III courts can exercise
5I4 STANFORD LAW REVIEW [Vol. 13: Page 46I
of the Justices recently condemned the notion that constitutional

courts could be assigned any non-article III judicial power, at least
outside the District of Columbia.253 They feared that if this were
permitted then other, more vital restraints would be vulnerable,
particularly those pertaining to the exercise of nonjudicial func-
tions. Should the issue be raised, the Court would probably bypass
earlier assertions and instead view the proposed trial as application
of article III judicial power.
At the same time, I believe Congress could also confer such
jurisdiction on legislative courts-and not for the barren reason
that judicial power is article III judicial power when exercised by
constitutional courts and non-article III judicial power when ex-
ercised by legislative courts. Statements that legislative courts can-
not receive article III jurisdiction seem unsound.254 They have
long exerted jurisdiction, either concurrently or successively, with
constitutional courts over identical "cases and controversies . .
arising under the Laws of the United States."255 The view that
Congress can confer article III power on the legislative courts seems
a better explanation of this fact than either alternative.
Concededly, if legislative courts can exercise article III juris-
diction, troublesome questions are raised concerning the limits of
Congress's power to assign such jurisdiction to them in lieu of
article III courts. But there is no need to resolve this problem
here.256 We are concerned with a special situation, one involving an
non-article III judicial power. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337
U.S. 582, 591-92 (1949) (Jackson, J., announcing the judgment of the Court in an
opinion joined by Black and Burton, JJ.); O'Donoghue v. United States, 289 U.S. 516,
545-46 (1933) (higher courts of the District of Columbia).
253. National Mut. Ins. Co. v. Tidewater Transfer Co., supra note 252 (Rutledge and
Murphy, JJ., concurring in the result; Vinson, C.J., Reed, Frankfurter, and Douglas, JJ.,
dissenting).
254. "Must it not be concluded that it is impossible to maintain any effort to distin-
guish constitutional and legislative courts on the ground that the former exercise only
Article III-subject-matter-and-party-judicial power whereas the latter exercise judicial
power in other classes of cases?" HART & WECHSLER, THE FEDERAL COURTS AND THE FED-
ERAL SYSTEM 350 (1953).
255. See National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 592-600
(1949) (Jackson, J.); id. at 640-43 (Vinson, C.J., dissenting); Ex parte Bakelite Corp.,
229 U.S. 438, 460-61 (1929); Katz, supra note 245, at 904-11.
256. Interesting efforts have been made in this respect but with dubious success or
appropriateness. See Ex parte Bakelite Corp., 229 U.S. 438, 450-51 (1929); Katz, supra
note 245, at 912-23; Notes, 34 COLUM. L. REV. 344, 746 (1934). In National Mut. Ins. Co.
v. Tidewater Transfer Co., supra note 255, at 644, Mr. Chief Justice Vinson observed in
dissent: "It may be argued that the distinction between constitutional and legislative courts
is meaningless if the latter may be invested with jurisdiction over the subjects of Art. III
judicial power. But there are limitations .... In the first place, a legislative court must
be established under some one of the specific powers given to Congress .... Furthermore,
we cannot impute to Congress an intent now or in the future to transfer jurisdiction from
essentially new extension of civilian jurisdiction abroad. To confer

such authority on legislative courts would not portentously under-
mine judicial power traditionally held by article III courts. From
the practical standpoint courts established abroad may be needed
only temporarily; the legislative court offers greater flexibility in
this respect. Also there are the decisions upholding exercise of
jurisdiction by legislative courts in comparable situations, however
dubious their rationale.257
The constitutional status of any civilian courts which Congress
might establish in foreign countries is not dispositive of a more
important set of problems-namely, is trial by petit jury after in-
dictment by grand jury necessary ?258 Unquestionably there is lan-
guage in the Singleton case, as well as in Mr. Justice Black's opinion
in Reid, which indicates that these safeguards must be provided.
In fact the Singleton opinion concludes, "We . . . hold that Mrs.
Dial is protected by the specific provisions of article III and the fifth
and sixth amendments and that her prosecution and conviction
by court-martial is not constitutionally permissible."259
Despite these statements, I do not view the recent decisions as
establishing irrefragably that jury trial or grand jury indictment
is indispensable for United States criminal trials abroad. It seems
unnecessary for the Court to have resolved this issue in order to
void military jurisdiction. As Mr. Justice Frankfurter stated in
Reid, the Court was not concerned
with the possibility of some alternative nonmilitary type of trial that does
not contain all the safeguards of Article III and the Fifth and Sixth
Amendments. ... If Congress had established consular courts or some
other nonmilitary procedure for trial that did not contain all the protec-
tions afforded by [these provisions] . . . for the trial of civilian depend-
ents of military personnel abroad, we would be forced to a detailed
constitutional to legislative courts for the purpose of emasculating the former . . . Finally,
Ex parte Bakelite Corp.... has been read as suggesting that the jurisdiction of legis-
lative courts is limited to matters which, while proper subjects of judicial determination,
need not be so determined under the Constitution. The least that may be said is that no
decisions of this Court have suggested that legislative courts may take over the entire field
of federal judicial authority." (Footnotes omitted.)
257. See, e.g., Dorr v. United States, 195 U.S. 138 (1904); In re Ross, 140 U.S. 453
(1891); text following note 251 supra.
258. See Balzac v. Porto Rico, 258 U.S. 298, 304-5 (1922) (jury trial not required
in "legislative" court in "unincorporated" territory without the continental United States);
Rassmussen v. United States, 197 U.S. 516, 520-21 (1905) (jury trial necessary in Alaska
Territory "legislative" court); Thompson v. Utah, 170 U.S. 343, 350 (1898) (same in
Utah).
259. 361 U.S. at 249.
5I6 STANFORD LAW REVIEW [Vol. 13: Page 46I
analysis of the situation . . . in deciding whether the Ross case should

be extended to cover such a case.260
The absence of the jury and other procedural safeguards bears

on the propriety of military jurisdiction, of course, but it does not
follow that if the Constitution should not compel these safeguards
Congress can authorize court-martial. The two questions are re-
lated but not mutually dependent. As indicated heretofore, mili-
tary trial may be regarded as invalid for reasons wholly apart from
the absence of jury and grand jury. Should the occasion arise, I
suspect that a majority of the Court, faced with the realities of the
situation, would interpret the recent cases as holding simply that
military trial was forbidden, not that jury trial was mandatory-
that the gist of the decisions was anti-military, not pro-jury, not
even anti-military because pro-jury.
Concluding that jury trial is unnecessary is not incompatible
with the basic proposition that action by the United States Govern-
ment in foreign countries, as elsewhere, is subject to the limitations
and prohibitions of the Constitution. In Mr. Justice White's felici-
tous dictum, "the question which arises is, not whether the Consti-
tution is operative, for that is self-evident, but whether the provision
relied upon is applicable [to trials overseas]."'26 The sixth amend-
ment, for example, declares that the accused is entitled to trial "by
an impartial jury of the State and district wherein the crime shall
have been committed," but this is qualified in article III which pro-
vides that when a crime is committed outside the states "Trial shall
be at such Place or Places as the Congress may by Law have di-
rected." The example involves an express exception for events
abroad but the principle illustrated is the one invoked here. What
the Constitution, fairly construed, demands in foreign lands may
be different from what it demands at home.
The Insular Cases indicate that constitutional safeguards are
not required when trial outside the United States appears essential
if circumstances are such that these guarantees are meaningless,
infeasible, or prejudicial to the accused. Here, it seem impractica-
ble to assemble even a rough approximation of the traditional jury
at many of our overseas bases, apart from the other difficulties of
260. 354 U.S. at 44-45, 64. See also id. at 74-76 & n.12 (Harlan, J., concurring);
id. at 86-87 (Clark, J., dissenting).
261. Downes v. Bidwell, 182 U.S. 244, 292 (1901) (concurring opinion).
May I96I ] COURT-MARTIAL JURISDICTION 5I7
transporting this institution to foreign lands.262 Jury trial is highly

desirable in serious criminal cases and it should be provided wher-
ever possible, but if the effective choice is narrowed to civilian trial
without jury or court-martial, then, in the interest of nonmilitary
trial, it appears Congress could proceed to set up three-judge civil-
ian courts.
Apart from the jury provisions, would American civilian trial
in foreign countries be feasible? Laws could be provided by Con-
gress, judges appointed and sent abroad, the necessary accommo-
dations obtained. But what of counsel? Witnesses? Appeals?
Punishment? The last seem to present no significant obstacle
under modern conditions. Appeals could be heard by appellate
courts in this country and punishment inflicted here, now the prac-
tice under the UCMJ.
The problem of counsel is distinctly more troublesome. The
Government can take care of itself, of course, as can the accused
where he has sufficient means to obtain qualified representation.
But when he lacks such resources difficulties arise. The Court
has held that an indigent must be provided competent counsel if
he wishes before he can constitutionally be convicted and punished
in a federal court.263 Whatever other constitutional provisions may
be applicable to trials abroad, it seems clear that the Court would
insist upon this basic safeguard. Concurrently there are bound to
be numerous defendants who cannot provide for themselves. It
appears neither fair nor practicable to compel members of the Dis-
trict of Columbia or other federal bars to provide representation,
particularly in the absence of reasonable compensation. Undoubt-
edly some could be induced to serve if their expenses were reim-
bursed, but both the steadiness and quality of this supply would
surely prove inadequate. Military lawyers abroad could also be
pressed into duty, or government lawyers dispatched from the
United States on a case-by-case basis. These alternatives raise serious
problems, however, in terms of convenience, competency of coun-
262. "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." Reid v. Covert, 354
U.S. 1, 87 (Clark, J., dissenting).
263. Glasser v. United States, 315 U.S. 60, 69-72 (1942); Johnson v. Zerbst, 304 U.S.
458, 462-63 (1938).
sel to handle criminal litigation, and conflict of interests. More

promising, Congress could establish a semi-permanent group of
defense counsel for trial overseas-public defenders paid by the
Government but insulated from prosecution influence.264 This
would cost, but again the costs would be relatively insignificant
and wholly warranted.
Once again, to conduct a meaningful trial abroad United States
courts would need power at their disposal to compel attendance of
parties and witnesses and the production of evidence. Congress
can grant such power but largely in vain without the cooperation
of nations in which it must be exercised. Conceivably foreign gov-
ernments would permit American authorities to arrest, detain or
subpoena United States civilians accompanying the armed forces
so long as the civilians were present on bases or premises assigned
to our military contingents.265 But otherwise these governments
would undoubtedly demand that such power remain in their con-
trol.266 Nevertheless, I perceive no insurmountable reason why
they would be less cooperative with American civilian tribunals
than with our courts-martial, in cases where they permit either to
exercise jurisdiction.267
Civilian trial abroad has been described as a new form of "extra-
territoriality."268 Although some of the outward trappings of this
discredited practice are present, the jurisdiction proposed seems
fundamentally different. Under principles of "extraterritoriality"
not only were United States citizens subject to trial by American
tribunals in foreign countries, but they were immune from foreign
264. For a number of years there have been unsuccessful efforts in Congress to estab-
lish public defender's offices in populous areas to assist indigent defendants in federal cases.
For the most recent failure see S. 895, 86th Cong., 1st Sess. (1959), which passed the
Senate but failed to clear the House Judiciary Committee. It seems unlikely that the oppo-
sition to this general proposal would block creation of a corps of public defenders for trial
overseas. See generally Hearings on H.R. 4185, 4609, 6864 and 2271 Before Subcommittee
No. 2 of the House Committee on the Judiciary, 86th Congress, 1st Sess. (1959).
265. Compare NATO Status of Forces Agreement art. VII, para. 10(a). "Regularly
constituted military units or formations of a force shall have the right to police any camps,
establishments or other premises which they occupy as the result of an agreement with the
receiving state."
266. Id. para. 10(b). "Outside these premises, such military police shall be employed
only subject to arrangements with the authorities of the receiving state ...."
267. Id. para. 6(a), quoted in text at note 232. Most signatories have yet to provide
any formal procedure for compelling their nationals to appear before visiting courts-martial,
though such steps were contemplated at the time of agreement. Informal pressure and
financial inducements have apparently been adequate. See SNEE & PYE, STATUS OF FORCES
AGREEMENT: CRIMINAL JURISDICTION 94-97 (1957).
268. Brief for Petitioners, pp. 95-98, McElroy v. United States ex rel. Guagliardo,
371 U.S. 281 (1960).
May 1961] COURT-MARTIAL JURISDICTION 519
law.269 Here no such immunity is contemplated. Other nations

would retain full jurisdiction over Americans. The United States
would merely ask authority to try certain of its citizens abroad. If
conduct violated the laws of both nations, foreign jurisdiction pre-
sumably would be primary. Heretofore foreign powers have been
willing not only to permit military courts to apply United States
law within their borders, but to yield jurisdiction to these tribunals
in cases involving an offense against both nations.27 Why would
they be unwilling to grant our civilian tribunals less? What differ-
ence would it make to them whether the narrow jurisdiction under
consideration is exercised by civilian judges or courts-martial ? If
appearances provoke misunderstanding or irrational opposition,
means of camouflage surely can be mutually devised.
Present status of forces agreements authorize jurisdiction only
by American "military authorities" over civilians "subject to the
military law" of the United States.27 If Congress were to provide
for trial by civilian courts further agreements seem necessary.
Efforts might be made to bring the new system under existing pro-
visions; for example, governing law could be characterized as "mili-
tary law," the civilian tribunals placed in the Department of De-
fense, and their officers styled as "military authorities."272 But such a
course seems needless, possibly ineffectual, and perhaps even dele-
terious if regarded by other governments as deceitful. It is question-
able whether the Court would accept such a scheme unless the
tribunals were completely autonomous. On the other hand, if they
could not fairly be regarded as part of the military hierarchy, for-
eign countries might not regard their jurisdiction as falling within
the letter or the intendment of the status of forces agreements.
VI. CONCLUSION
From this obscure vantage point, it appears uncertain whether

the court-martial jurisdiction struck down in Reid and its succes-
sors is vital to performance of essential military functions, the cri-
terion by which I believe its constitutionality should be judged. My
appreciation of the problems of order raised by different classes of
civilians accompanying the forces, of the reaction of foreign nations
269. See the discussion and collection of authorities by Mr. Justice Frankfurter in
Reid v. Covert, 354 U.S. 1, 56-64 (1957).
270. See note 22 supra.
271. See, e.g., NATO Status of Forces Agreement art. VII, paras. l(a), 2(a), 3(a).
272. See Note, 71 HARV. L. REV. 712, 727 (1958).
to alternatives other than court-martial, of the realities abroad gen-

erally, is too imperfect to permit any other conclusion. It is regret-
table that the Court, with its great power to elicit information, did
not examine this question more directly, more thoroughly. For
whatever it is worth, I suspect that with effort and imagination a
combination of administrative sanctions, foreign prosecution, and
United States civilian trial abroad can be devised to meet military
needs. The shortcomings of such alternatives are readily overstated,
the necessity for court-martial jurisdiction easily pleaded, but the
requisite case has yet to be established. One recalls Edward Living-
ston's biting observation:
Not one of the oppressive prerogatives of which the crown has been suc-
cessively stripped, in England, but was in its day, defended on the plea
of necessity. Not one of the attempts to destroy them, but was deemed a
hazardous innovation.278
Mr. Justice Brandeis has said that in constitutional matters "the

Court bows to the lessons of experience and the force of better
reasoning, recognizing that the process of trial and error, so fruit-
ful in the physical sciences, is appropriate also in the judicial
function."274 The present situation seems particularly appropriate
for application of this process of trial and error, provided only that
a way exists to reopen the question of the validity of court-martial
should the alternatives prove inadequate.
Apart from the merits of the particular cases, I think the recent
decisions will prove valuable. Through the years there has been a
continued expansion of military law over civilians. This expansion
often appears to have been made in a casual, unthoughtful way by
Congress upon military request. Now the Court has not only re-
asserted the marginal role of courts-martial in our system but has
posted a plain warning that Congress must proceed circumspectly
273. 1 WORKS OF EDWARD LIVINGSTON 264 (1873). Reid was decided almost four years
ago, its successors more than a year. Order is now enforced among accompanying civilians
by administrative restraints and by the threat of foreign trial. So far as appears, this arrange-
ment has not yet proved seriously defective. Meanwhile Congress and the Executive appear
to be proceeding leisurely in providing alternative sanctions, somewhat surprising in view
of the forebodings of calamity that were presented to the Court should it decide as it did.
The Executive has not yet submitted any recommendation to Congress pertaining to prob-
lems raised by the decision. One bill dealing with part of the problem was passed by the
House in the last Congress, see note 216 supra, but disappeared into a Senate committee.
Otherwise the matter is reportedly under continuing study in the Departments of State,
Defense, and Justice.
274. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-08 (1932) (dissenting
opinion).
May i96 ] COURT-MARTIAL JURISDICTION 52I
in conferring authority over civilians on courts-martial. In this

respect the recent cases take their place with landmarks like Ex
parte Milligan,27 Sterling v. Constantin,27 and Toth.277 The legis-
lature and the executive are stimulated to be more hesitant about
resorting to military jurisdiction, more resourceful in devising al-
ternatives for necessary regulation of citizens, and if the need should
arise, precedents are established for refusal to observe their action.
Such restraints seem salutary in this period of continuing crisis and
military threat to the nation. As Alexander Hamilton observed in
The Federalist,
In a country [where] ... the perpetual menacings of danger
oblige the government to be always prepared to repel it-its armies
must be numerous enough for instant defence. The continual necessity
for their services enhances the importance of the soldier .... The
military state becomes elevated above the civil. The inhabitants of ter-
ritories, often the theatre of war, are unavoidably subjected to frequent
infringements on their rights, which serve to weaken their sense of those
rights; and by degrees the people are brought to consider the soldiery not
only as their protectors, but as their superiors. The transition from this
disposition to that of considering them as masters, is neither remote,
nor difficult .... .278
The danger, in this country at least, is not so much military usur-

pation as civilian slackness and frustration and fear.
275. 71 U.S. (4 Wall.) 2 (1866).

276. 287 U.S. 378 (1932).
277. 350 U.S. 11 (1955).
278. THE FEDERALIST No. 8, at 48 (Cooke ed. 1961) (Hamilton).

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Stanford Law Review

The Constitution and Court-Martial of Civilians Accompanying the Armed Forces. A

I. THE GENERAL CONTEXT

The appropriate role of the military in the scheme of things

Centuries later, however, one finds Madison dolefully recording:

In our own troubled times, we are told by an able scholar:

Somewhat fortuitously, the United States has been spared many

tacular but brief eruptions. In a society dominated by liberal prin-

article is concerned with one facet of this last aspect of "civilian

and, more significantly for present purposes, to

The latter provision has been in effect-with minor modifica-

ficially, this seems surprising in view of what might fairly be char-

II. THE RECENT DECISIONS

In any event it came as a rude surprise to the defense establish-

Shortly after Judge Tamm's decision, a similar case arose in

The guarantees it affords against accusation of capital or infamous crimes,

The Insular Cases were the offspring of American expansion

Mr. Justice Black announced the judgment in an opinion joined by

The Ross dictum that "the Constitution can have no operation

trials and they cannot properly be used as vehicles to support an extension

Convinced that the Constitution was operative wherever the

from despotic use of the military in England during the seven-

need for military jurisdiction in such cases was not overwhelming.

In addition, Mr. Justice Clark thought the jurisdiction chal-

Following the decision in Reid, habeas corpus proceedings were

is not only different in fact, but distinct in principle from that of

62. Id. at 175.

employees and dependents, and between capital or other major

III. THE SEARCH FOR STANDARDS

In appraising these decisions invalidating military jurisdiction

It is something more to vindicate the course chosen or to con-

There are probably few who urge, publicly or privately, that

However, section 8 does not stand alone. Article III, section i,

Section 2 of the same article continues by broadly requiring that:

Trial by court-martial for offenses against the laws of the United

B. The Original Understanding

new problems, old problems assume new forms and dimensions,

original understanding surely has more significance than as a make-

States] ....""9 Other provisions extended to "commissaries,"98 to

Available records show a number of military trials under these

This blanket adoption was reaffirmed on several occasions until

vide jurisdiction over various civilians serving with the army,ll2

112. See text accompanying notes 96-100 supra.

120. Brief for Respondent, pp. 36-54, 107-118.

was followed by the rigorous military rule of Oliver Cromwell. Later,

They also were deeply attached to trial of crimes by an independent

The formative era was characterized by fear and detestation of

actual hostilities where communication and transportation were

should accord "due significance" to the interpretations and prac-

er in Indian territory in I833, the last in Florida in 1838, and three

In 1872 this was followed by an opinion from the Attorney General

137. See REV. STAT. ?? 1240, 1295 (1875).

Similarly, the Attorney General in I878 reversed an earlier opinion

jurisdiction, in time of peace, is a fundamental principle of our

The following persons are subject to these articles:

Judge Advocate General Crowder, testifying in support of the bill

145. 1 WINTHROP, op. cit. supra note 144, at 143.

hearings but the Committee again listened to testimony by General

And later he expanded on this by saying:

From this testimony it appears General Crowder accepted the

to an appropriation bill, and that appreciation of their significance

Theretofore apparently the only statutory basis for Navy trial of