Grisham v. Hagan

PETITIONER:Grisham
RESPONDENT:Hagan
LOCATION:Calumet River

DOCKET NO.: 58
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 361 US 278 (1960)
ARGUED: Oct 22, 1959
DECIDED: Jan 18, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – October 22, 1959 in Grisham v. Hagan

Earl Warren:

Number 58, Albert H. Grisham, Petitioner, versus Charles R. Hagan, Warden.

Charles Wolfe Kalp:

Mr. Chief Justice —

Earl Warren:

Mr. Kalp.

Charles Wolfe Kalp:

— may it please the Court.

We have here another action of habeas corpus testing the authority or seeking to test the authority of the military to try a civilian by military court-martial.

The specific question involved here is whether the Constitution permits the trial of civilian employee of the army by military court-martial in France for a capital offense in time of peace.

The judicial history of this case began in December 1952 when Grisham was charged with the — he was then a citizen of the United States and as I say a civilian employee and an accountant of the army, serving with the armed forces in France with a GS-9 civil service rating.

When he was charged with the capital offense of premeditated murder under Article 118 of the Uniform Code of Military Justice, he was tried by a military court-martial, a general court-martial convened in Orleans, France.

He was convicted of the lesser included offense of unpremeditated murder, was sentenced to 35 or to life imprisonment and hard labor, which was subsequently reduced to 35 years by executive clemency.

Grisham has exhausted all of his administrative remedies under the Uniform Code of Military Justice.

He — then, on October 26th, 1957 while serving his sentence at the United States Penitentiary, Lewisburg, Pennsylvania, filed a petition for writ of habeas corpus in the United States District Court with another district alleging that his confinement was in violation of Article III and the Fifth and Sixth Amendments of the Constitution.

This case was heard before Honorable Frederick B. 0Bone and was argued and on April 22nd, 1958, the District Court filed an opinion dismissing the petition for writ of habeas corpus.

An appeal was immediately taken to the Court of Appeals for the Third Circuit in Philadelphia, which was argued before the Third Circuit on October 24, 1958.

On November 20, an opinion was filed by the Court of Appeals affirming the judgment of the District Court, opinion by Judge Goodrich.

A petition for writ of certiorari followed which is the question now before this Court.

Now —

Earl Warren:

Is your jurisdictional question here any different at all from Reid versus Covert except in that case the defendant was — the defendant in this case is civilian employee?

Charles Wolfe Kalp:

Our contention is that there is absolutely no other distinction factually.

The cases are identical with the exception of that fact.

Now, the facts of this case are that the petitioner had been employed as a cost accountant, a civil service employee of the army engineers at Nashville, Tennessee continuously since 1936.

Except for some time, some leave which he had during the Second World War going to the military.

In September 1952, he was temporarily assigned by the District Engineers at Nashville to duty with the District Engineers at Orleans, France.

Now, while employed by the Nashville office of the District Engineers, his work consisted primarily of multiple purpose setting up cost accounting systems in connection with multiple purpose dams and river and harbor improvements, civil works.

When he was assigned to the Orleans office in France with the District Engineers, he was given a job of setting up a cost accounting system for communications line between Germany and France.

He arrived in France on October 1st, 1952.

His wife arrived about November 30th, 1952.

And he and his wife were living in the City of Orleans in an apartment rented from a French civilian.

They were not living on the military base.

On the night of December 6th, the petitioner and his wife attended a cocktail party given by an officer at the base and both of them had a considerable amount of drink.

Early in the morning of December 7th, the next morning of 1952, the petitioner notified both the French civilian authorities and the United States military authorities that his wife was dead.

Charles Wolfe Kalp:

He was subsequently questioned by the French military authorities who arrested him for murder.

He was held by the French military authorities under that charge from December 7th until December 23rd, 1952 at which time, he was released to the United States military authorities upon request under the status of forces treaty then in effect in France.

There is nothing in the record to show outside of the fact that he was working on a communications cost accounting system for communications line between Germany and France.

There is nothing in the record to show that the work he was doing was essential or necessary to any purely military function of the European Army headquarters in France.

The — while in France, the petitioner was on the payroll of the Nashville Office of the District Engineers.

He was paid from civil works funds.

He furnished his own housing, food, medical care and transportation both for himself and his wife.

Now, prior to entering a plea to the general issue in the court-martial proceeding, the petitioner challenged the jurisdiction of the Court both as to his person and as to the offense charged on the ground that jurisdiction of both this person and the offense remained with the French and now, after six years of confinement in the penitentiary, that is still this petitioner’s contention.

Felix Frankfurter:

Would you mind if it doesn’t take more than a minute or two to explain the six-year delay, the six-year period?

Charles Wolfe Kalp:

Well, if the Court please, a good portion of that time of course —

Felix Frankfurter:

We would — we would — (Voice overlap) when he was under the —

Charles Wolfe Kalp:

He was sentenced in March of 1953.

The court-martial occurred March 28th to March 27th.

Felix Frankfurter:

Go on from there –

Charles Wolfe Kalp:

Pardon?

Felix Frankfurter:

Go on –

Charles Wolfe Kalp:

Well, a good portion of the time was used up in exhausting his administrative remedies under Uniform Code of Military Justice, his appeal to the — to higher authority and to the Court of military field and so on.

Felix Frankfurter:

But, when was the — when was the final approval of the sentence (Inaudible) was approved.

Charles Wolfe Kalp:

I can’t tell you the exact data.

It was approved, however, but he of course didn’t bring a petition for writ of habeas corpus until the second Covert decision was handed down by this Court and then I talked to him at the penitentiary and he did file his petition.

Now, the petition was actually filed October 26th, 1957.

And the opinion was filed by the District Court on April 22nd, 1958, the opinion, it was argued in the Court of Appeals, October 24, 1958 and the opinion was handed down by the Court of Appeals on November 20.

So, as far as the judicial procedure since the petition for writ of habeas corpus was filed, it has been fairly prompt.

Now, both in the Court, the District Court and in the Court of Appeals, we have argued that this case cannot be distinguished from the — this Court’s decision in the Covert case, the second decision on any supportable or substantial basis.

In the — the Government’s argument, this is supported, I should say, by the Government’s argument in the Guagliardo case and also their argument in the supplementary brief which they filed in the second Covert case in which they — they specifically stated that they were not urging — they did not feel that any valid distinction could be made between civilian dependents and civilian employees serving with the armed forces or accompanying the armed forces overseas.

I think that’s particularly true on —

Felix Frankfurter:

The argument wasn’t dependent likewise but it was in like dependents.

Charles Wolfe Kalp:

That’s very true.

I think that under the concurring opinions of Mr. Justice Harlan and Mr. Justice Frankfurter that it’s particularly difficult to distinguish this case from those — the reasoning of those opinions because, if we’re going to balance the necessity and propriety of court-martial jurisdiction against the desirability of protecting these persons under the Fifth and Sixth Amendments and giving them Article III trials, it seems to me the fact that this petitioner was charged with a capital offense where the issue actually was one of life or death should have considerable weight in weighing the scales in his favor if there should be any balancing of interest in the matter.

So far as the decision of Mr. Justice or the reasoning of Mr. Justice Black’s opinion, it doesn’t seem to me that it makes any difference whether it’s a capital offense or a non-capital offense.

Charles Wolfe Kalp:

And I don’t know if there is any fact here on which these decisions can be distinguished by Mr. Covert decision and the second Covert decision in this case.

However, the lower courts did distinguish them and the Court of Appeals gave three specific — or gave four grounds upon which the distinction was allegedly based.

One, that long established history, tradition and practice gave the military authority to court-martial civilians.

I assume in time of peace as this was.

Now, I’m not going to go into the historical background.

I don’t have the background material to do what Colonel Wiener has I think done an excellent and thorough job in that connection.

I do want to make this one observation.

However, it seems to me that if the framers of the United States Constitution had ever thought that Clause 14 was to be used to extend authority to the military to court-martial a civilian for a capital offense in peacetime in a friendly foreign country that there certainly would’ve been quite an argument at the convention and we would find some reference to that situation in the various source materials which must be studied in order to understand the Constitution and as far as I know, there are none.

And I sincerely feel that there just is not any well-established practice permitting the trial of civilians in peacetime by military court-martial.

Now, of course there is — as has been discussed here the one exception which is based on the war powers, in time of war and in the field in the face of actual hostile, the military operations there certainly is power to court-martial civilians under the laws of war.

At least, that is traditional, but here, there is no such tradition.

Secondly, Judge Goodrich stressed the fact of necessity.

Now —

Charles E. Whittaker:

Excuse me, I understand you to say (Inaudible)

Charles Wolfe Kalp:

That’s my understanding of the law, yes, Your Honor.

Charles E. Whittaker:

Not (Inaudible)

Charles Wolfe Kalp:

Well, of course the Article 2 (11) of the Uniform Code of Military Justice purports to give that authority to if it’s constitutionally does give that authority to the military in time of war and peace I assume, but that’s the question at issue here as I understand it.

It seems to me that in essence, the Government is arguing in these cases that this war power, this right to try civilians in the field in the face of actual hostile of military operations which has some historical authenticity and background that that should be extended.

In other words, the concept within the field should be extended here to cover peacetime cases where there is actually no fighting.

The only justification for it as I can see it is the argument that it is necessary.

It’s one — because of the so-called, “cold war” and the necessities of the situation and I would — I think the doctrine is false.

I — to paraphrase Justice Davis in Ex-parte Milligan, it’s a pernicious doctrine to allow any exigency or necessity to warrant a cutting down of rights which — fundamental rights which citizens are entitled to under the Constitution, in other words, in Article III trial and the right to indictment and jury trial under the Fifth and Sixth Amendments.

There were two other reasons given by Judge Goodrich.

One, that certain fringe benefits were extended to these civilians when they were overseas such as the use of the PX and travel allowances and things of that kind.

Well, of course, both Mrs. Covert and Mrs. Smith in the second Covert case had the same, if not, more of those benefits.

The same thing is true with reference to — he stated that civilian employee goes — brought of his own volition.

Well, that’s equally true as I see it of a — the wife of an officer or enlisted man in the armed forces.

Now, we send — our position as simply that there is no supportable ground to distinguish this case from the second Covert case that Mrs. Smith, Mrs. Covert and Grisham were all citizens of the United States, they were all civilians, they were all three charged with murder, killing their respective spouses, they were all tried in time of peace in a friendly foreign country.

The sole and only factual distinction here is that Grisham happened to be a civilian account and he was accompanying the armed forces overseas as well as serving with them and employed by them that he happened to be a civilian accountant and Mrs. Smith and Mrs. Covert happened to be the wives of military personnel and it’s our contention that that is simply not a substantial or sufficient factual distinction to warrant any distinction between the three cases.

Potter Stewart:

Mr. Kalp, earlier in your argument, you seem to emphasize the — the occupation of this — the specific occupation of this man that he was an accountant and emphasized the fact that that was not a traditionally military occupation.

Potter Stewart:

Would you draw a distinction that this man had been a — well there is no such thing, but a civilian who was an expert drill master and was hired on contrive — hired by the army covering guerilla troops?

Charles Wolfe Kalp:

I don’t think any logical distinction of that kind could be drawn although if we are going to say that this is analogous to a due process case, as I understood Mr. Justice Harlan and Mr. Justice Frankfurter in saying in the Covert opinion that the various factors had to be balanced as you would in the due process case and it might make a difference, yes, it seemed to me.

Felix Frankfurter:

(Inaudible)

Charles Wolfe Kalp:

I can’t answer that question Mr. Justice Frankfurter.

I believe so but I — I don’t know.

I assume that that’s possible, but I don’t —

Felix Frankfurter:

I asked this because (Inaudible)

Charles Wolfe Kalp:

That’s correct and that’s our contention —

Felix Frankfurter:

I know.

That’s (Inaudible)

Charles Wolfe Kalp:

There is one other thing I would like to say and that is to this order of the method of trial.

In this case, as I’ve pointed out from the outset, Grisham insisted that he should be tried by the French civil courts and I see no reason to say that that is not a perfectly little acceptable ultimate method of trial.

There is a crime, it’s not a military crime.

It’s murder in the French City of Orleans, not on the military base, it rose out of a purely domestic quarrel, an unfortunate one.

But, it certainly seems that it would be proper and appropriate to try that case whether to allow the France to have jurisdiction to try that case.

As a matter of fact, the French held Grisham as I’ve pointed out in the 7th until the 23rd of December and when they turned him over they did so reluctantly and said that they did in its substance if they did not want this to constitute any precedent in other cases.

Furthermore, the Government’s argument in the Singleton case that in the few capital cases involving defendants that it would not be unreasonable to insist on an Article III trial in this country which seem to apply equally well here.

Of course, I just pointed out there, Congress hasn’t seen fit to (Inaudible) substantive offense here is simply it’s an offense against the United States at all.

It’s only made so by the Uniform Code of Military Justice.

Felix Frankfurter:

(Inaudible) are we questionable?

Charles Wolfe Kalp:

They are turning over our request and as I say reluctantly and with the specific provision that is not the constituted precedence.

Felix Frankfurter:

As far as (Inaudible)

Charles Wolfe Kalp:

Well, except in the field and in time of war.

Felix Frankfurter:

(Inaudible)

Charles Wolfe Kalp:

Which is (Inaudible)

Felix Frankfurter:

(Inaudible)

Charles Wolfe Kalp:

They’re not.

No —

Felix Frankfurter:

(Inaudible)

Charles Wolfe Kalp:

Of course it would be closer to military if he — if he had killed an officer and an enlisted man who was actually in the — in the military service.

Charles Wolfe Kalp:

I don’t think it makes any difference though, but it would be (Inaudible)

Earl Warren:

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

Before beginning the burden of my argument, if I may, I would like to touch upon a number of district problems that come up in which some of the justices have asked questions or perhaps we have not given full response.

Mr. Justice Frankfurter, the Court of Military Appeals affirmed the conviction of Grisham in September 1954, September 1954 and the sentence was ordered into execution on October 15th, 1954.

On the subject of legislation since the Covert case, we are informed that legislation was drafted with respect to capital offenses by dependents, but that it was decided as speculated by Mr. Justice Clark that it was better to await the decision of the Court in these cases to say exactly what the problems of legislation would be so that the matter could be treated as in one package rather than in piecemeal.

The third matter on the —

(Inaudible)

Oscar H. Davis:

No.

It was not proposed into Congress.

It was drafted within the executive department.

(Inaudible)

Oscar H. Davis:

Capital crimes by dependants, the precise situation —

(Inaudible)

Oscar H. Davis:

That’s right, nothing more.

Because as I was saying yesterday, it was not — there was a constitutional adjudication to which the executive has to bow.

It was not thought that the — any of the suggested alternatives were either feasible or acceptable and so, if I may put it this way until further constitutional adjudications compel the executive to go further, it was not thought that it ought — it ought to do so.

I thought (Inaudible)

Oscar H. Davis:

No, sir, no, sir.

We — as we — we accept the — the decision in the Covert case.

We have not asked for it to be overruled and that — that hiatus still exists.

On the —

Felix Frankfurter:

Take it — I here take it (Inaudible) that’s not improving here properly but I think it concerned with the problem and what to do about it primarily that is the Pentagon rather than the Department of Justice.

Oscar H. Davis:

Well, it is primarily out of the Pentagon, but if there cannot be military trial —

Felix Frankfurter:

Yes, I understand —

Oscar H. Davis:

Then — then the Department of Justice —

Felix Frankfurter:

The problem — but the problem is that of the — of the service.

Oscar H. Davis:

That — that is right, sir.

The third separate matter is on the common law types of crimes Mr. Justice Stewart.

It is true that it wasn’t until 1863 that some of them were mentioned eo nomine in the — in the Articles of War, but for a long time before that, there was the general Article of War which provided for the punishment of offenses prejudicial to good order and military discipline and specifically including the phrase, “non-capital offenses.”

Oscar H. Davis:

And as this Court held in the Mason case which Colonel Wiener mentioned, any common law type of crime that could be attached to — to the military to show that it — it did cause discredit or prejudice to military order could be tried by courts-martial under that Article of War.

And so that, as an actual matter of the fact, common law types of crimes, homicides, larcenies, burglaries were tried by courts-martial even in times of peace.

It wasn’t until 1863 that these common law types of crime were mentioned by name in the statutes and in fact, I think as was said, not until 1916 that the other types were mentioned the — the lesser offenses.

On the matter of type of employment also Mr. Justice Stewart, Grisham was an auditor but he was a cost accountant for a military line of communications between France and Germany which was necessary not for the general civilian population but for our occupation troops there.

And he was doing a cost accounting type of work but I’m sure that they were enlisted and commissioned personnel that were also engaged in doing.

And Colonel Wiener says that — that this type of activity should be all in covered under a kind of civilian draft.

The point I’m making is that, though he was a cost accountant and an auditor, he was dealing with a very directly military function in Germany.

Earl Warren:

Does it made any difference if he had been a civilian gardener?

Oscar H. Davis:

Civilian gardener working for the military?

Earl Warren:

Yes.

Oscar H. Davis:

No, I don’t think so.

I — but since counsel made the distinction that that — his man was not engaged and what he thought was a military function, I want to meet him on his own ground and say that this man was engaged in military —

Earl Warren:

It’s your position that anybody who’s employed by the army —

Oscar H. Davis:

And stationed overseas.

Earl Warren:

— and stationed overseas is subject to court-martial the same as this man?

Oscar H. Davis:

Yes.

That’s right.

Earl Warren:

May I — while we’re on that subject, may I ask you another question?

Are his dependents subject to court-martial also?

Oscar H. Davis:

Yes, that is our position as in the — in the Singleton case.

Earl Warren:

(Voice overlap) wife would — would be subject to —

Oscar H. Davis:

Yes.

Civilian dependents are on the same category in our view as dependents of military personnel.

Felix Frankfurter:

Yes.

That’s what I’m —

Oscar H. Davis:

That’s right and the last separate matter that I have to take up Mr. Justice Frankfurter is housing.

There are separate — there are certain bases, individual housing.

Frequently they aren’t enough.

For instance, if I may go back to the Guagliardo case, the first case, I was informed that at Nouasseur Air Base in Morocco which is the base involved there, there was a trailer camp, there were 99 prefabricated houses and there were some other kinds.

They weren’t enough.

Oscar H. Davis:

Civilian personnel are — are eligible for this as well as service personnel.

Per contrary, I think this is important because it’s the issue is — the matter is really been — been — shall I say, “overshadowed.”

It is very frequent for service personnel to live off the base both in this country and abroad.

So, the fact that Grisham here or Guagliardo in the first case, lived off the base and got a quarters allowance didn’t really separate them from the — from the service anymore than — than a corporal or sergeant or a lieutenant who lives in the town nearby and gets his quarters — quarters allowance.

That’s a very common incident of military relationship both in this country and abroad.

Felix Frankfurter:

When — when there are housing facilities, are they also subject to domiciliary or base rules of hours of being in or out, things like that?

Oscar H. Davis:

I can’t really say.

I think, as to the housing which is technically on the base, I think the base commander has the right to — to make rules if I can draw on my own experience from World War II, in some places, he didn’t make rules and other places, he didn’t —

Felix Frankfurter:

And how extensively — about how many people are involved in these dependents?

Oscar H. Davis:

In the dependent, about 450,000.

Felix Frankfurter:

450 —

Oscar H. Davis:

Thousand.

Felix Frankfurter:

On the — on the —

Oscar H. Davis:

Civilians?

Felix Frankfurter:

Civilians.

Oscar H. Davis:

About 25 — 25,000.

Felix Frankfurter:

I mean, the Grisham type of —

Oscar H. Davis:

Well, I — I can’t give you the figures of this —

Felix Frankfurter:

Roughly, of what — of what magnitude?(Inaudible)

Oscar H. Davis:

It would be more — no.

The — the 25,000 includes direct employees of the Government, such as we have in these three cases.

It includes some — some employees are contractors, not a great number I think.

Felix Frankfurter:

But one — one state removed.

Oscar H. Davis:

One state removed.

But there are —

Felix Frankfurter:

Are they chosen under your rule?

Oscar H. Davis:

Yes.

Oh, yes.

They are serving with the army under the — under the historical definition.

These cases were involved but we would certainly make the same argument.

Oscar H. Davis:

There are only a few thousand of those and the third category is — certain civilians at naval — naval reservations which were also a small amount.

I think the bulk of the 25,000 are Americans who are civil service employees of the United States that you see.

Felix Frankfurter:

My — that the source of — the nature of my interest is, what — what – how close — what is the nature of the nexus, the actual nexus between these employees and the army establishment?

Oscar H. Davis:

Well I would say — you can fairly say that the bulk of them are direct employees of the armed forces?

That is the army or the air force or the navy.

The bulk of — but in our view, they would not be exclusively that.

There are some others.

Earl Warren:

Will the employees of the contractors be included?

Oscar H. Davis:

Certain employees, yes.

We think employees of contractors are included.

The 25,000 figure which I gave includes I think just a couple of thousands of those employees because there are different kinds.

There are technical representatives and there are other kinds.

Technical representatives are people working on important electronic equipment at bases and they are included in the figure of 25,000 and 26,000.

Earl Warren:

But if they were building the big bridge —

Oscar H. Davis:

Oh, yes.

Earl Warren:

Would the employees of the contractors and their dependents be subject to court-martial?

Oscar H. Davis:

In our view, yes.

Felix Frankfurter:

But it might be different if some representative of General Electric or Westinghouse assuming they’re doing something for you, for the Government that they send over their top engineer to look at the things he wouldn’t be deemed –

Oscar H. Davis:

For a temporary stay, I don’t want to give a categorical answer because the question would be whether he would be serving with the armed forces during that period, he would certainly not be employed.

Felix Frankfurter:

Alright.

Oscar H. Davis:

If it were a long enough period he would be serving.

Charles E. Whittaker:

(Inaudible)

Oscar H. Davis:

We don’t think so, Mr. Justice Whittaker.

We do not think that there is any difference as far as the constitutional power between the direct employee of the Government or the employee of the contractor.

We think that they are all included.

It so happens —

Felix Frankfurter:

The nature of the employment you would take —

Oscar H. Davis:

Pardon me?

Felix Frankfurter:

The nature of the employment.

Oscar H. Davis:

That’s right, the nature of the employment.

Oscar H. Davis:

It so happens that in these three cases, there’s a direct civil service employee of the Government involved.

We do not think that these distinctions which I have been discussing are dispositive.

I mentioned them because I’ve been asked the questions.

Hugo L. Black:

So far as constitutional power is concerned, you draw a distinction between employees outside of the United States and employees inside the United States.

Oscar H. Davis:

Yes.

I think a distinction —

Hugo L. Black:

What distinction do you draw constitutionally speaking?

Oscar H. Davis:

That constitutional distinction, if I may summarize it first, it maybe the whole burden of my argument, Mr. Justice Black.

The constitution — the constitutional basis is that we think that as we stand today in 1959, court-martial jurisdiction over employees, people serving with the army is proper to use the old words of the statute of 1765 to which I referred yesterday and to which I returned where our form of civil judicature is not in force, that is where — where the American courts do not exist.

In the continental United States, our form of civil judicature does exist.

Hugo L. Black:

What statute are you referring to?

Oscar H. Davis:

I’m — I’m referring to an — the British statute of 1765 as a — as a general thread which runs throughout I think all these historical materials that — that the historical materials turn in very large part on the fact whether the civil jurisdiction of the country, our country as far as we’re concern in Great Britain, as far as its concern exists in the outlying area.

If it does not exist, then, I think that — that the Court — the material show uniformly that — that court-martial jurisdiction was thought to be valid and proper.

Now, I don’t have to argue, Mr. Justice Black, that employees in the United States should be covered on Court.

Hugo L. Black:

I understand — I understand you don’t have to at this juncture.

Oscar H. Davis:

I don’t have to —

Hugo L. Black:

I’m not so sure about the next juncture.

Oscar H. Davis:

Well, if — if I may appeal to what the Court is frequently appealed to, those are different problems and there were different historical —

Hugo L. Black:

Well, some of us — some us might think that the jurisdiction is a jurisdiction and that you can’t decide it on the basis or the exact kind of relationship that something is happening this time and hundred years ago.

Oscar H. Davis:

Well, we think that — that the — that the — the dispositive fact as far as jurisdiction is, is that there is no form of our civil judicature existing in this foreign lands.

And if I may, I would — I think I would be able to try to show that this is the thread of the history to go back where — where I was yesterday at the — at the beginning, I — I summarized four general propositions which, if I may, I’d like to summarize again and then go on try to show the Court that these propositions are historically accurate.

And the first is that there has been a consistent thread since the middle of the 18th Century for court-martial jurisdiction over employees and dependents throughout our history and for the British history before.

And that this is exhibited in the great deal of legislation and in a great deal of practice.

And the second point is, that the hostility to which Colonel Wiener and the other attorneys on the — on the other side have referred throughout the 18th Century and thereafter was not hostility to court-martial jurisdiction over service connected personnel, but hostility to court-martial jurisdiction over inhabitants generally.

The two important historical materials which Colonel Wiener mentioned today both belong to that category.

The statute of 1765 which he referred to about taking people who commit offenses in forts and garrisons to the nearest civil magistrate, that covers — inhabitants generally who committed crimes within the bounds of a fort or garrison.

It doesn’t cover service connected personnel.

It specifically says, “People who are not subject to court-martial.”

It’s inhabitants generally and similarly, it was pointed out from the bench, the northwest ordinance referred to inhabitants generally and not the service connected personnel.

And that brings me to my — my third point which I repeat again because I think nothing has been brought for to disapprove what I said.

Oscar H. Davis:

And that is that there are no affirmative rulings, no affirmative statements in the 18th Century before the Constitution was adopted at the time of the adoption of the Constitution or after the adoption of the Constitution.

And I don’t limit this merely to the debates on the adoption of the Constitution.

I sweep in the whole history.

There are no affirmative rulings or statements at that time opposing court-martial jurisdiction over service connected personnel.

All the statements as far as we’ve been able to find are statements opposing court-martial jurisdiction over inhabitants generally.

And so, we think that — that the type of jurisdiction for which we argue here does find support in the history and there are no opposing materials.

And then, the fourth general point which I’ll also try to show is that this type of jurisdiction wasn’t limited to war or actual hostilities.

It — it stood on two factors, the connection of the person with the military and the need for the exercise of court-martial jurisdiction over it.

And in the latter factor, the need for the exercise of court-martial jurisdiction, the absence of civil judicature, a phrase which I would like to repeat because I think it’s the foundation of — of the history of this case, of this matter, that’s the most important factor throughout the history.

Now, to go — I won’t detail for the Court because they are included both in our briefs and in the briefs of the other side the various British and American statutes providing for court-martial jurisdiction in the 18th Century over civilian persons.

They covered settlers, returners to a camp or persons whatsoever serving with our armies in the field though not enlisted soldiers.

There are a large numbers of British statutes, there are American Articles of War both adopted by the colonies and by the Continental Congress.

There is no doubt that these — that these persons were reviewed — viewed as civilian employees.

The Continental Congress refers to them in the civil department of the army.

They were wagoners.

There were some artillery men, there were forge masters, there were quarter masters, commissaries, pay masters.

We have set out in our brief both in the original brief — in the opening brief in 21 where the main argument was made in the Guagliardo case and in our reply brief.

Potter Stewart:

But that was the time of the war, was it not?

Oscar H. Davis:

They existed before war, Mr. Justice Stewart.

That is they existed before the colonies declared war and they existed after.

And there is — there is no indication in any of the materials, any of the materials that the Congress or anybody thought that the power rested on the existence of war.

At this point, let me go forward into history to say that during the period of 1790 that Colonel Wiener was talking about this afternoon, saw this great number of instances in which he couldn’t understand why — why they had court-martial jurisdiction.

Those court-martial papers don’t indicate that anybody thought that the time of war was existing in the 1790s either because of an Indian war out in the Northwest Territory or elsewhere.

There was no indication in the — in the history of the — in the material of those times that anyone thought that power over the — over service connected personnel rested on war.

On the contrary — and this I think is too significant that when they were trying to exercise jurisdiction over inhabitants generally, then, they thought they were resting on — on war powers.

The special result which related of the Continental Congress which gave court-martial jurisdiction over inhabitants generally for interfering with the army, Washington recognized that there is a special war power, but there is no such similar significance or recognition with respect to these service connected personnel.

The — the legislation and the practice goes off before the revolutionary war to after.

Felix Frankfurter:

Now between 1765 and the 1776, but the — was there a legislation dealing with courts-martial, not dealing with your specific question immediately, was there a legislation emanating both from Westminster instead of General Court of Massachusetts?

Oscar H. Davis:

Yes.

There —

Felix Frankfurter:

That there was — so that the colonies passed legislation.

Oscar H. Davis:

In 1775 before July 4th, Massachusetts Bay passed an Article of War which is similar to the one I’ve just mentioned about jurisdiction over settlers, returners to the camp or all persons serving with the armies in the field.

Felix Frankfurter:

Now then, between —

Oscar H. Davis:

And — if I may go back, Mr. Justice, in 1765, Department of Westminster passed the statute saying that we are British forces, we’re overseas at Minorca and Gibraltar, Annapolis Royal and other places where our troops maybe commanded, where our form of civil judicature is not enforced, then, persons subject to command or the commanding officer who would otherwise be subject to court-martial shall be tried for common law types of offenses in those areas and that — that statute was passed in 1765.

Hugo L. Black:

Now, between the — between the Treaty of Paris which ended the revolution in 1787 or 1789, did the Continental Congress —

Oscar H. Davis:

Yes.

Hugo L. Black:

— or the new states or any of them deal with this problem?

Oscar H. Davis:

I don’t know about the new state, but the Continental Congress did deal with court-martial jurisdiction in a way, I think that goes counter to the argument found in the other side because the extended court-martial jurisdiction over witnesses who appeared before courts-martial and were contemptuous or refused to answer even though they were civilians.

And they refused definitively to limit that kind of contempt jurisdiction of courts-martial only to service men.

Felix Frankfurter:

They didn’t have the benefit — it’s one of our recent decisions, did they?

Oscar H. Davis:

And then, in this whole period before the adoption of the Constitution, there was a — there was a great deal of court-martial jurisdiction over civilians.

True a large part of it was in time of war, but I say again that there was no recognition that it was war that gave the power in this case.

And, as far as we can tell, all the contrary opposing statements upon which reliance is based related to court-martial jurisdiction over inhabitants generally not over service connected personnels.

Potter Stewart:

Did the legislation use the phrase “army in the field” or “armies in the field?”

Oscar H. Davis:

Yes.

They’ve used “armies in the field.”

Potter Stewart:

Well, that doesn’t that the very phrase —

Oscar H. Davis:

Except that the 1765 statute of Great Britain which used it wherever our — our (Inaudible) or civil judicature is not in force.

Potter Stewart:

Doesn’t the very phrase “army in the field” imply a state of war instead of belligerency at least?

Oscar H. Davis:

No, Mr. Justice Stewart.

I — I think that it implies a body of troops together for a purpose such as our troops are abroad that they’re for a purpose and they are in an organized fashion.

I think that’s what — what both these statutes, these Articles of War and the later ones we’re dealing with.

They were —

Potter Stewart:

Are you talking about the British or our —

Oscar H. Davis:

I’m talking to both, both.

Felix Frankfurter:

And that’s to our — as to American legislation using that comprehensively both colonial and new state for the Continental Congress.

If they used the phrase “in the field,” what would be the — that — what was that juxtaposed to?

When were they not in the field apart from war in the United States?

When were they not in the field?

Oscar H. Davis:

When they were in camp.

Oscar H. Davis:

In — in —

Felix Frankfurter:

In the “field,” you mean just to have —

Oscar H. Davis:

Whenever —

Felix Frankfurter:

— or (Voice overlap) army gains, army gains?

Oscar H. Davis:

Oh, army — army — one of the — Mr. Justice Frankfurter, one of the things that our troops abroad are doing is preparing for the possibility of war and their in the field that in — in preparing for that possibility.

Felix Frankfurter:

I’m talking about the legislation which used the phrase, “in the field.”

Oscar H. Davis:

I think that —

Felix Frankfurter:

What application did it have to pursue Justice Stewart’s question unless it would be reference to the field of war?

Oscar H. Davis:

No.

I think it was a reference to the army in camp and in training and in marching and there were lots of people who were court-martialed.

Colonel Wiener says in the 1790s, there must have been a state of war.

There were lots of people who were court-martialed in the 1790s at army camps and cantonments where there was no actual hostilities going on in that area.

I think that was true probably that we don’t have too many instances of it in the 1780s.

We have a few even after the treaty — even after the Treaty of Peace with Paris.

So, I think the reference was not to feel the meaning war, but the reference was to the army in an organized situation at a cantonment camp on the march.

And that is the way it’s been interpreted — was interpreted throughout the 19th Century until these very late 19th Century decisions of the Judge Advocate General and the statements of Colonel Wiener to which that —

Felix Frankfurter:

Well, would there have been — would there have been no service connected non-uniform persons with the army when they weren’t in the field?

Oscar H. Davis:

Oh, yes.

These —

Felix Frankfurter:

And therefore —

Oscar H. Davis:

When they were —

Felix Frankfurter:

— they would — when they were not in the field?

Oscar H. Davis:

Oh, service connected personnel in Washington I suppose as there are today.

Hugo L. Black:

Are they in the field?

Oscar H. Davis:

No, sir.

They’re not in the field.

Felix Frankfurter:

Is this phrase on which you so heavily rely and I can see why, (Inaudible) civil judicature?

Oscar H. Davis:

Where there is no form of our civil judicature is in force.

Felix Frankfurter:

And that phrase — did that phrase either in terms have echoes in any of our legislation?

Oscar H. Davis:

Yes.

Oscar H. Davis:

I think it does.

It does not in terms.

But I think it —

Felix Frankfurter:

Well, but can they go —

Oscar H. Davis:

I think it does have that because I think it’s a constant —

Felix Frankfurter:

Are you going to talk about that?

Oscar H. Davis:

I’ll talk about it right now, Mr. Justice because I think it’s important.

It begins at the 1765 statute to which I refer the British statute.

Hugo L. Black:

Who was the king of Great Britain at that time?

Oscar H. Davis:

George III.

Felix Frankfurter:

Oh, yes, George III.[Laughter]

Oscar H. Davis:

But the parliament of Great Britain Mr. Justice was the one that enacted the statute.

Hugo L. Black:

There is some controversy of that the act over here, wasn’t it?

Oscar H. Davis:

Not that I know of.

Not about that Act.

Hugo L. Black:

I thought there were some complaints as they were trying the people and deny them of the right to trial by a jury under that Act.

Oscar H. Davis:

I didn’t think — I don’t —

Hugo L. Black:

You didn’t find so?

Oscar H. Davis:

I don’t find that it was that Act Mr. Justice.

Hugo L. Black:

What was the Act in which they were making an —

Oscar H. Davis:

I think that was general martial law declared for the inhabitants generally.

Hugo L. Black:

They —

Oscar H. Davis:

It was not — not the statute which provided that those people under the command of the commanding general shall —

Hugo L. Black:

It was under a particular clause.

Oscar H. Davis:

I think it was not under that statute.

In 1802, the Congress passed a provision providing for a court-martial of persons committing murder on naval vessels outside the jurisdiction of the United States and this in our view covered not only naval personnel or military personnel but civilian seamen who existed in those days aboard the naval vessels.

And the judge — and the Attorney General of the United States was asked to rule early in the 19th Century on the question of whether that statute applied within the territorial jurisdiction of the United States within the maritime bound — waters.

And he said, “No, it doesn’t” because the reason Congress passed the statute outside was because our, he didn’t used these terms but our form of civil judicature doesn’t exist on the high seas and that’s why Congress specifically provided for the court-martial of persons committing murder on naval vessels.

In fact, throughout most of the 19th Century, it was most extraordinary for any of our service people or service connected people to be outside the jurisdiction of the United States at all unless they’re on naval vessels.

Hugo L. Black:

And how did Congress provide they should be tried if they were outside of the place?

Hugo L. Black:

Why would judicature provision required —

Oscar H. Davis:

By court-martial in that instance.

Hugo L. Black:

It is?

Oscar H. Davis:

Yes.

Hugo L. Black:

What year was that?

Oscar H. Davis:

1802, Mr. Justice.

Hugo L. Black:

What’s the law now about it?

Can they not be brought anyway into the United States?

Oscar H. Davis:

This is a board naval vessel.

Hugo L. Black:

Oh, you’re talking about aboard naval vessel?

Oscar H. Davis:

Board naval vessel, yes, this was board naval vessels.

Then, in 1866, General Holt, the (Inaudible) Judge Advocate General who was asked to give an opinion on which we quote in our — in our brief and with — on the jurisdiction over service connected personnel in the field.

And he says that it covered — he says, not only as his ruling but he’s giving a historical statement of what the general usage of the service was.

And he said in 1866 that the general use — usage of the service of the army in time of peace was that this in the field category cover units on the march or in a place remote from civil jurisdiction.

So, again, you find this reference to place remote from civil jurisdiction and then we come, I should have said this before, to Colonel Winthrop’s own comment on the 1863 murder statute which provided for the first time that murder and other important felony should be tried during the time of war by court-martial and Colonel Winthrop — Winthrop’s commentary is very significant.

He said, “The reason Congress did that is because at those times, the courts were probably closed and the civil jurisdiction wouldn’t be opened so it was important in order to furnish these offenses that they’d be tried by court-martial.”

So, again, you see the same threat where our form of civil judicature does not exist, Congress has the right to pass court-martial statutes.

And then you come to — to the late 19th Century opinions upon which Colonel Wiener and Mr. Kalp relies so heavily relate to post traitor and others, we think these are — these are explained in exactly the same way because in the late 19th Century, the civil jurisdiction of the United States had covered the entire continent, there was no place where you couldn’t get to a Federal District Court at that time and this seems to me explicitly in a few instances and implicitly the underlying basis of all those decisions.

They talk about within the United States.

They say civil jurisdiction exists.

It would be a violation of the Fifth and Sixth Amendments to try these people by court-martial.

There is no reason why you can’t take him take Mr. so and so to the District Court from Nebraska which is sitting right near Omaha in one of the opinions we printed by Colonel Wiener and I think in the appendix to his brief in the Wilson case and then, I come to General Crowder in 1912 to 1916.

Mr. Justice Frankfurter, this was not first proposed in 1916.

It was first proposed in 1912 in the revision of the Articles of War which had the approval of Secretary of War, Stimson and this appears very clearly from the reports.

And that the — the statements which were made by General Crowder were made a different hearing to those years, some in 1912 and some in 1916.

And, his — he — his statements I think are not inexplicable as Colonel Wiener said today.

I think they are perfectly explicable.

He understood that the touchstone was the absence of civil jurisdiction.

He understood that there was nothing inconsistent between what had been said by the judge advocate general in the — in the latter part of the 19th Century and what he was proposing in 1912 and 1916 because he understood, that the rule that they were applying only have — only had reference to places where our civil jurisdiction existed.

It didn’t exist in Cuba under our peaceful occupation of 1906 or 1907.

Oscar H. Davis:

It didn’t exist when our troops were going through Canada as he — another example that he mentioned.

It didn’t exist in other places.

And so, therefore, he didn’t see that there was any inconsistency and I submit that there was none between that the — the opinions that he had himself formally promulgated in the digest of 1912 opinions which had been issued in the — in the latter part of the 19th Century and — and the proposal that he was making to Congress.

Because he knew that at — in the area which was to be covered by Article 2 (d) — 2 (d) as it then was Article 2 (11) as it is today, there was no form of our civil judicature in effect.

And he also saw that unlike what had been known to the people in the end of the 19th Century, the Spanish-American War had ushered in new era to the United States.

We have had occupations in Cuba.

It was also that — that the war which was then pending in Europe in 1916 might bring similar types of — of deployment of troops abroad.

Felix Frankfurter:

Does the record show that General Crowder drafted that which came in after which he proposed in 1916 but that was done in 1912?

Oscar H. Davis:

Yes, sir.

Felix Frankfurter:

But it wasn’t — it wasn’t enacted or submitted first place as a change of administration and second place to word of the —

Oscar H. Davis:

Article 2 (d) as far as I can determine was precisely in the same form in 1912 as it was when it was adopted in 1916.

It did not get through Congress in 1912 or in intervening years and it was finally enacted in 1916.

I won’t dwell because the Court knows it as well better than I do on the — on the situation that — that existed after World War II as far as the need for placing troops abroad, but of course, that is the need which led to the — the codification and — clarification of Article 2 (11) in the Uniform Code in 1950.

Potter Stewart:

Back in the earlier days of this century, 1906 or 1907 or whatever it was that our troops occupied Cuba, is there any others that either dependents accompanied them or a civilian — civilians were employed by them?

Oscar H. Davis:

Well, I — I know nothing about the dependents, but I do know about the employees because that was the very occasion for General Crowder’s suggestion into Congress that Article 2 (a) (b) enlarged.

There was a civilian order to accompany the troops to Cuba in 1906 and 1907 and who — embezzled some funds there.

And General Crowder said to the Congress, he could not be charged of — he embezzled federal funds, he could not be charged because this didn’t come under the old Article of War which only covered wartime.

This was a peacetime occupation of Cuba and he said there is no reason why he — this auditor of this type shouldn’t be covered by court-martial jurisdiction when we’re occupying Cuba non-hostile.

And, it’s — I think it’s important that he said this is not a new jurisdiction.

This is something we have always done in 1912 and 1916.

Potter Stewart:

In which one of your briefs does that say?

Oscar H. Davis:

In the Guagliardo brief.

Potter Stewart:

Guagliardo?

Oscar H. Davis:

Yes.

Potter Stewart:

Number 21?

Felix Frankfurter:

What was the name of that attorney in the famous case?

Oscar H. Davis:

I don’t know the name, Mr. Justice Frankfurter but —

Felix Frankfurter:

But Colonel Wiener said that was on his mind (Inaudible)

Oscar H. Davis:

But he said so in the — in the hearings before Congress, he said it’s on page 49 to 50 Mr. Justice Stewart and it — in the footnote — Footnote 32 on page — at the end of page 51, he refers to the — the non-hostile occupation of Cuba and they — a portion of his statement there which we did not reprint details the events which occurred about this auditor who — who committed embezzlement.

A word on the — the need and appropriateness for military jurisdiction over service connected personnel.

Oscar H. Davis:

As far as employees are concerned, and it — it is shown both by the record in number 21, the Guagliardo case and by this case, these service connected personnels serving overseas work in the same place, most often side-by-side with military personnel were under the same command of the commanding officer.

They frequently exercised command over enlisted personnel as well as being commanded by officer or military personnel.

They have the same military privileges and benefits.

They are accepted and treated by the local host nation and the local populace as part of the military contingent.

They view themselves as part of military contingent.

They are thought of by the receiving state, the host nation, France, in this case, Morocco in the other case as part of the military contingent.

The commander is — as responsible for them in the eye — in his own eyes and in the eyes of the host nation as he is for the military personnel.

How do they (Inaudible)

Oscar H. Davis:

If I may, Mr. Justice Harlan, I will have to come to argue in a moment the issue of capital charge here if I may delay until then because that — my — my particular case here depends on that because of course, this is the same as the Covert case except that this man is a — an employee rather than a dependent, but the reason I — I put it off is because before I can try to attempt to show you that a capital offense should be treated differently, I have to show you that employees at all shall be treated — shall be subject to court-martial jurisdiction.

As to the — up to this time, back at the early argument you’ve made and you’ve made the reference to the employees in the (Inaudible) were civilians.

Oscar H. Davis:

No.

Except that the —

Oscar H. Davis:

But our form of civil judicature does not exist.

Well, I understood that one and one mistake here —

Oscar H. Davis:

That’s a terribly significant one, Mr. Justice.

(Inaudible) valid type of a judicature that’s what you call it?

Oscar H. Davis:

Judicature.

That — (Voice overlap)

It doesn’t exist over in England I guess?

— George III’s time.

It doesn’t exist over in England?

Oscar H. Davis:

Yes, it does now and — and the reason that didn’t exist as I — as I believe, up to recently, it does exist now, the reason it didn’t — pardon?

Charles E. Whittaker:

Our system?

Oscar H. Davis:

No, no, but their system.

Perhaps — let me — let me explain what I’m driving at.

Colonel Wiener in reciting something from Samuel talked about military jurisdiction existing where a civil jurisdiction does not exist.

And he assumed sub silentio that the civil jurisdiction that Samuel was talking about that the 18th Century and 19th Century British materials were talking about was the civil jurisdiction of the other country.

That is not so.

They were talking about — I believe it is not so.

They were talking about British civil jurisdiction.

Oscar H. Davis:

Now, of course, in many cases, British civil jurisdiction did exist overseas in India for instance and other places.

I think that — that the — that the 1765 statute is the — is the — the true touchstone where our form of civil judicature does not exist.

That is for the British where their form civil jurisdiction did not exist whereas, where our form of civil jurisdiction does not exist because —

William J. Brennan, Jr.:

What we’re talking (Inaudible)

Oscar H. Davis:

Well, England recently passed a statute covering dependents.

They did not cover dependents until I think 1956.

And they did not cover all civilian —

William J. Brennan, Jr.:

(Inaudible)

Oscar H. Davis:

Yes.

And it does — so that England is — has the same jurisdiction for which we argue here now.

(Inaudible)

Oscar H. Davis:

I don’t believe it is cited in — in our brief Mr. Justice Harlan.

It’s cited in your opinion in the — in the Covert case and it’s printed in — in one of the briefs in the Covert — in our one of the Government’s briefs in the Covert case.

The — the alternatives have been discussed before the Court.

The alter — the only real alternative as I think in most cases is trial in a foreign court.

There is something to be said to trial in a foreign court, but Congress has opted against it.

Congress has very decisively decided that American service connected personnel should not be tried in foreign courts and, there are reasons — very good reasons supporting that judgment of Congress.

The first is that, foreign nations are not too interested in offenses committed by American personnel, which do not involve foreign personnel or the foreign country.

They are not too interested and this has been proved by the experience since World War II.

They’re not too interested in offenses by one American against another American or involving the American airbase even if it were — even it is a crime under the foreign law.

And then of course, many of these dealings, these offenses are not crimes under the foreign law.

All the security offenses, the violations of the base commander’s regulations, in some countries, narcotic offenses are not violations of the local law.

Safety regulations on the base, those are not — are frequently not violations of the local law.

So, if there is no method of trying Americans who commit those offenses, they cannot be tried and punished at all.

And then, Congress was aware of the disadvantages to the defendant in the trial in foreign courts.

No doubt, in many countries in the world, Congress — a defendant will receive a very fair trial, but there are other countries in which that cannot be said.

At least in trial, it was not conform to our standards of — or our views of what is a fair and just trial and Congress was aware of this, and it made its choice.

And in this connection, I think I should say that there is quite a possibility that if it’s held that any of these service connected personnel are not subject to military jurisdiction, then the argument would probably be made by some of the countries abroad that that so-called, “NATO safeguards,” the safeguards which we — which were put in to the treaty to protect the Americans tried in foreign courts do not apply to these people just as they don’t apply to tourists abroad because the NATO safeguards only apply to people subject in military jurisdiction who are turned over or whose trial is had by the foreign state.

I don’t want to say to the Court that this is necessarily a correct interpretation of that treaty but this is an argument which has been made and which I have no doubt would be brought forward, but if these people — if these people are not treated as part of the military, then, the NATO Status of Forces Agreement with its safeguards does not apply to them in any way.

Trial in the United States is also been discussed.

Oscar H. Davis:

I don’t want to say anymore on that except to point out that we have no assurance that foreign countries will allow persons — Americans committing crimes abroad to be brought to this country.

They don’t have to do it because as the Court knows from the Gerard case, they have jurisdiction — territorial jurisdiction.

They — we cannot just pick up an American and bring him to this country if he has committed an offense abroad.

We have to do it with the explicit or implicit consent of the foreign country.

We have no assurance that that will be done.

Hugo L. Black:

Have you tried to get in?

Oscar H. Davis:

There has been an obstacle about that.

That is — many people think that that —

Hugo L. Black:

I’m not talking about what many people think.

You’re making an argument here that you — you have no assurance that the countries would let you bring them over here to trail, it would demand at the time that for military tribunal.

What’s that based on, so far if it goes beyond the fact if you have no assurance?

Oscar H. Davis:

Mr. Justice Black, I cannot say to you that formal requests have been made and turned down, but the — what I say is based upon the general feeling of the executive branch of the Government that that this, a request to foreign countries particularly to certain foreign countries to allow us to bring people back to the United States for trial will not be graded with receptivity because of the general rule which we have for ourselves that the territorial sovereign has jurisdiction.

And we have extradition treaties don’t apply because extradition treaties apply where the offense is committed in one sovereign in one state and the offender then goes to the other State.

That’s not true here.

The offense is committed in France and Grisham has not fled to the United States or he didn’t commit the crime in United States and then flee to France.

So, extradition treaties don’t apply.

The other types of — of civil courts abroad run into the difficulties of the capitulations, the canceling of tribunals and so forth, and other difficulties which were pointed out by members of the Court in the opinions in the Covert case.

I should like to say, Mr. Chief Justice that I’m not quite sure it was made clear in the Guagliardo case that the 160,000 Defense Department civilians who are not subject to court-martial are not American citizens.

There are a large number of — of local nationals who were employed abroad by the Defense Department of various bases throughout the country.

They are not subject to court-martial jurisdiction because they are not American nationals and are subject to the jurisdiction of the local country.

As far as I know, there are no American employees of the Defense Department in this category who are not subject to — to court-martial jurisdiction.

Now, I come Mr. Justice —

William J. Brennan, Jr.:

What happens to the foreign nationals employed by our military who may commit an offense against the — our military code but which is not an offense against the laws of that nation?

Oscar H. Davis:

They can’t commit an offense Mr. Justice Brennan against our military code because they are not subject to it.

They may commit an offense which would be con — con — yes.

William J. Brennan, Jr.:

Whatever it is?

Oscar H. Davis:

Yes.

Nothing can happen except that they have to be dismissed and excluded from the base.

Attempt sir — I think on the whole, this can be handled administratively because they are not ordinarily given a classifying information.

They’re not put in — in — ordinarily put in positions where they can commit offenses of this type.

Oscar H. Davis:

They do commit larcenies as was indicated in the — I’m not even certain that the —

William J. Brennan, Jr.:

Well, now take narcotics?

Oscar H. Davis:

Narcotics?

William J. Brennan, Jr.:

In a nation where —

Oscar H. Davis:

All they can be done is they would be excluded from the base, that’s all.

Dismissed from employment and excluded from the base.

There is nothing else that can be done.

Hugo L. Black:

Just because those employees are not members of the land and naval forces, isn’t it?

Oscar H. Davis:

That’s right.

And in some countries, in some countries Mr. Justice Black, the treaty — the NATO Status of Forces Agreement itself provides that nationals of that country shall not be subject to our jurisdiction.

So, in those countries, it’s not only because they are not covered by the — the military code.

William J. Brennan, Jr.:

But we don’t have such treaties.

What — what is it that brings them outside the land of naval forces if their American counterpart civilians are within our land of naval forces?

Oscar H. Davis:

I — I want it —

William J. Brennan, Jr.:

(Inaudible)

Oscar H. Davis:

I want to qualify on what you’ve said in this mean to qualify my answer.

I do not think that they are outside the land of naval forces necessarily if they are not brought outside — brought outside that provision by a treaty or an agreement or with the local state as they are in most cases.

Well now let’s see then —

Oscar H. Davis:

They are not subject —

They are not – if they are not when I gather this qualification in your answer to the Chief Justice that as to 160,000, there maybe some foreign nationals there employed by our military who would be subject to court-marshal jurisdiction.

Oscar H. Davis:

Very few because as you see, Article 2 (11) itself says, “Subject to international arrangements and so on,” so it incorporates this.

Most agreements, the NATO and I think most of the others do not make local nationals subject to our court-martial jurisdiction.

It maybe that in Morocco, an Englishman is working for the American airbase there and it maybe that he is subject to — to a court-martial jurisdiction but by and large, the answer that I gave to the Chief Justice is — is accurate.

That is that the great — the bulk of the local employees who are hired from the area are not subject to court-martial jurisdiction because of the treaty and arrangements that are made with the local states.

I come, Mr. Justice Harlan to the — the nub of this particular case which is that — the capital punishment aspect of it.

I cannot argue of course that — that it is harder to try civilians — civilian employees accused of capital crimes in the United States than it is to try dependents.

That factor is the same in both cases.

The difference that I think that does exists between the Covert case and this case, the differences are two or shall I say, two and a half.

The first, I think is that the — the history of jurisdiction over civilian employees, though we think the history supports the jurisdiction over dependents as well in its specific instances, is greater with respect to employees and more consistent throughout the two centuries since the 18th Century.

There is a consistent line.

Oscar H. Davis:

Colonel Wiener could not say in this case that there were only two persons, court-martialed by — court-martial — of civilian employees court-martialed as he said in the other case.

There is a — a much greater bulk of history and though we think that that doesn’t mean that employees are different from dependents, we do think that it’s one of the factors that has to be thrown into the balance in weighing the power and jurisdiction of the Congress with respect to capital offenses and the second factor — and in that connection — and this is the half argument that I’ve mentioned before, in that connection, we think that there is a — a law — a history of subjection of employees to capital offenses.

The naval murder statute of 1802 that I’ve mentioned which covers civilian seamen is — is a prime example which doesn’t exist in the case of employee — of dependent but which does exist in the case of employees.

So that adds we think to the — of the factors which throw the balance the other way in this case, that is the — the more consistent, the more specific history.

The second factor is that the — if — before I go to the second factor, I do want to say that I think there are times when history is the crucial balance weight and this is I think one of them.

This is a case where I think history is a crucial balance weight.

The balance went the other way in the Covert case.

The history here which was not before Court in this — in extent in Covert because Covert dealt with dependents and not with employees, swings the balance the other way for employees.

But, aside from the history which I think is the crucial factor, you do have a relationship with these employees to the armed forces.

They are more functionally related to the armed forces.

They do the work of the armed forces.

They do the same work in many instances as enlisted and officer personnel.

Their work is necessary for the — for the completion of the — of the program projects of the armed forces.

In many instances, they can harm by their offenses.

They can harm the armed forces more than a dependent could do because dependents are ordinarily don’t have access to — to equipment which today is very complicated and very important electronic equipment and dependents ordinarily don’t have access to classified information, things like that.

So that, an offense by a civilian employee can have a more direct impact on the actual operation of the armed forces than — than possibly a — by enlarged in defense by a dependent.

And so —

(Inaudible)

Oscar H. Davis:

I think many of these people still do.

Well, perhaps (Inaudible)

Oscar H. Davis:

No.

I’m not certain and I say somewhat tentatively that I think that probably most of these civilian employees have an assimilated rank.

William J. Brennan, Jr.:

Well, I thought that was assuming in the event of capture by an enemy so that they —

Oscar H. Davis:

Well, if —

William J. Brennan, Jr.:

— enjoy the status of one of that right in as a prisoner.

Oscar H. Davis:

That’s the important factor, Mr. Justice but, a rank has its privileges and other than —

William J. Brennan, Jr.:

And I just wonder, do we still have assimilated ranks in these days where —

Oscar H. Davis:

I think that — I don’t know — I think what — Guagliardo had access to the officer’s club.

William J. Brennan, Jr.:

Well that maybe but do they have assimilated rank?

Oscar H. Davis:

Well, I think that — I don’t know.

Oscar H. Davis:

I think that he — that he — well it’s called as — I don’t even think thing is called assimilated rank, I think it probably assimilated rank.

I may not be using —

William J. Brennan, Jr.:

Well, then, perhaps I have forgotten maybe it’s too long back but my recollection of assimilated ranks was assimilated rank, but civilian had assimilated right of the Colonel or Lieutenant Colonel (Inaudible) as we look at it.

Oscar H. Davis:

— I think many of them still do that —

Felix Frankfurter:

Was he treated — was he treated – (Inaudible)

Oscar H. Davis:

Well, he was treated as a member of the military forces of the country.

Felix Frankfurter:

So that sheds some light on what his function is significant?

Oscar H. Davis:

I think it sheds a great deal of light.

And so it’s — it’s these two factors, the history and the close and direct connection, the impact on the military that we think makes a difference between this case and the Covert case.

I don’t want to argue to the Court because I — I don’t think I can that it’s harder to try civilians — civilian employees for murder in the United States than its hard — than to try Mrs. Covert or Dorothy Krueger Smith.

The armed forces thinks — think it’s hard enough in both cases, but the — but the crucial differences are the history and the — and the difference in the relationship.

Hugo L. Black:

(Inaudible) dependent upon whether they are capital crimes or not (Inaudible)

Oscar H. Davis:

Well, I think that distinction was first articulated in the — in the concurring opinions in the Covert case.

Hugo L. Black:

(Inaudible)

Oscar H. Davis:

Well, there certainly was a distinction that Congress made between capital crimes and non-capital —

Hugo L. Black:

I wasn’t talking about that, I’m talking about the constitutional distinction with reference to the members of the land and naval forces.

Oscar H. Davis:

I haven’t found any —

Hugo L. Black:

How is constitutional balance? What have you done anything (Inaudible)

Oscar H. Davis:

The only thing —

Hugo L. Black:

– this has been made to that effect prior to that time?

Oscar H. Davis:

The only matters Mr. Justice Black of the inference of that one can draw from the difference in treatment Congress has made between capital offenses in the Articles of War and non-capital offenses.

Hugo L. Black:

You draw a constitutional difference there?

Oscar H. Davis:

Perhaps, I would not Mr. Justice.

But since the Court has held in the Covert case that on — on what is certainly a reasonable basis —

Hugo L. Black:

(Inaudible)

Oscar H. Davis:

That’s right.

It has been done.

It has been done in the due process field.

Hugo L. Black:

Well, do you think the Due Process Clause limits or quantifies (Inaudible).

Do you think that the Due Process Clause is limiting thing?

Hugo L. Black:

Does it (Inaudible) the right to trial by jury?

Oscar H. Davis:

No.

But I think it’s — it’s a clause which indicates that the courts when the issue comes before them have to weigh the various relevant factors in determining whether a certain action by Congress is valid or is not valid in the circumstances and the factor of capital — capitality has been mentioned.

Hugo L. Black:

I really asked about this because I was curious to know in your brief do you assign any reference to that distinction in this field before the Covert.

Oscar H. Davis:

No, no explicit reference, Mr. Justice Black.

Felix Frankfurter:

What do you say to – (Inaudible) the argument if I understood you correctly that you can (Inaudible) draw the, what I mean the, (Inaudible) both are necessary clause, that man can drawn on before 19 — what was it — 1793.

It couldn’t (Inaudible) because that puts a limitation for Proper and Necessary Clause.

Oscar H. Davis:

Mr. Justice, I — I think the short answer is that, there has never been any indication to that effect.

The selective draft of our cases in 1917 and this is in our reply brief, refer to the Necessary and Proper Clause, the sweeping clause has qualifying and modifying the court-martial clause as well as the other clauses.

There is a part of the opinion in the Court in that case which refers to the power that raised on this and the court-martial clause and say, of course, each of these powers is subject and qualified by the Necessary and Proper Clause and I think that’s been the historical accepted view supporting the army by what Hamilton said before the — the Fifth and Sixth Amendments were adopted, but it’s also supported by the fact that there’s nothing in the history that Fifth and Sixth Amendment insofar as we’ve been able to find which indicates any hostility to court-martial jurisdiction.

There was hostility to — in some places to a standing army and there was hostility to — to large military forces, but the court-martial jurisdiction is known.

In fact, the very same — many of the same states which have proposed limitation on a standing army as part of the Bill of Rights which was not adopted but they proposed it, also proposed the exception in the Fifth Amendment for cases arising in the land and naval forces.

So, we think that shows that there wasn’t any necessary connection between on the one hand hostility to a standing army and on the other hand, hostility to court-martial jurisdictions.

Felix Frankfurter:

Your argument is that land and naval forces gave the qualification of the Fifth and Sixth Amendment plainly enough, these are not — these are not literally part of the land and naval forces in our community and just stated and since that — since they’re not individual reading and the naval forces, the qualification to the just the Sixth Amendment give you no comfort unless you can go on to some Proper and Necessary Clause.

Oscar H. Davis:

Well, we think that even without the Proper and Necessary Clause, the history shows that these people were part of the land and naval forces and we think that’s one of the — the significant operative points of the history to show that land and naval forces was not limited to — to people who are enlisted on that.

Hugo L. Black:

Well, that’s been — your number of reading of that phrase isn’t just word, it’s a sweep of this committee, that’s your problem?

Oscar H. Davis:

Yes.

Hugo L. Black:

(Inaudible) read the history of it there were rights that we look at it, I thought that the number of the states and I am convinced here that there would be too much power exercised by Congress and certain people that they thought so specifically because it’s the Necessary and Proper Clause might be use to accomplish that reference.

I thought that Mr. Madison referred to that in connection with his (Inaudible) of the Bill of Rights in his discussion of the Bill of Rights.

It was to come this case and to put these things beyond the reach of Congress that the particular provision of the bill of right were adopted specifically referring to the Necessary and Proper Clause.

Oscar H. Davis:

Certainly, there were some fears that jury trial might be abolished for the country as a whole.

Felix Frankfurter:

Mr. Madison didn’t think so.

He —

Oscar H. Davis:

No.

Felix Frankfurter:

He was there for the Bill of Rights.

Oscar H. Davis:

Yes.

But —

Felix Frankfurter:

And we hope Mr. Justice —

Oscar H. Davis:

We find nothing in the history which indicates any specific or even the number of fears about the court-martial clause with which we’re dealing here.

Hugo L. Black:

I understood, Mr. Wiener – Colonel Wiener’s if we go a little further than that.

Hugo L. Black:

It was — as I understood it if that is wrong, that you couldn’t draw on the Necessary and Proper Clause to take away from the — to add any power to Congress contrary to the expressed provision that were provided in the Bill of Rights which were introduced later.

That’s what I thought.

Oscar H. Davis:

Well, the Bill of Rights has an exception for cases arising in land and naval forces.

So, any — anything that falls within Clause 14 would necessarily accept it —

Hugo L. Black:

That’s the fact — that’s the fact that’s the point if you’re correct on that, of course if they fall within the land and naval forces, then, that argument would have no relevance.

Oscar H. Davis:

But we think also Mr. Justice Black that the sweeping clause, to use that term, does help to determine what’s within the land and naval — naval forces.

We don’t think it’s necessary to rely on it in any of these cases but we do wish to rely upon it if any of the members of the Court should think it necessarily.

Mr. Chief Justice, I know my time has expired but I would like to explain what may appear to the Court as the most extraordinary discrepancy in statistics if — when — when they come to read the brief.

In the appendix in the Guagliardo case, there is a listing of various civilian employees and civilian dependents.

It’s page 110 and 111.

At the very end of the whole listing, you will find the phrase location unknown and you will find 34,472 dependents.

Well, the armed forces do lose people but it doesn’t lose that enormous number of people and so, I would like to explain how that — that occurred.

The total number of dependents was gathered by adding up what the various sponsors — the sponsors are the servicemen who — who go abroad what reports they send in.

But that the listing by individual countries comes from the base and stations overseas, the base commander sending that I have so many dependents.

There are a large number of sponsors, servicemen who do not report to their local base commander, the civilian dependents within there because they’re not entitled to quarters or something other like that and so, this figure of 34,000 doesn’t really represent people are actually lost.

It represents number of civilian dependents who have not been reported to — to the local bases and stations and therefore, don’t come within the country — country by country distribution in this table.

Earl Warren:

I see.

Colonel Wiener.

Frederick Bernays Wiener:

If the Court please, Mr. Kalp has asked me to reply on behalf of the petitioner and I have entered my appearance (Inaudible).

Does Your Honor propose to adjourn promptly at 4:30 because I will have to do modified —

Earl Warren:

We will finish, we will finish.

Frederick Bernays Wiener:

Very well.

I agree with Mr. Davis that history is very important in this connection, but, it’s got to be history in the words of the old German Professor (Inaudible) as it actually was not some imaginary picture that we reconstruct like — Now, Mr. Davis has built his argument where no form of civil judicature is enforced on what he calls the statute of the British parliament in 1765.

That’s the 1765 Articles of War which began at page 91 of Winthrop’s reprint.

That wasn’t the statute.

Those were the prerogative Articles of War.

Those where the prerogative Articles of War made by the Kings and it wasn’t until 1803 for some periods and 1813 for all time that parliament undertook to limit the King’s power to make prerogative articles outside the realm.

So, this is a simply a royal regulation.

That is the origin of it, not an act of parliament.

And then, we get to the omitted paragraph from Mr. Samuel and there is nothing there about our form of judicature.

Frederick Bernays Wiener:

He says so forth at home or in similar establishments which are of a permanent and domestic nature abroad where the ordinary laws have their force and are administered through the medium of the civil courts, There is not a word in there about our form of judicature, not a word.

So that, what is this historical basis — this involves employees generally, I don’t think there has been a — a great distinction shown between this case and Covert if the capital distinction or capital — non-capital means anything because it’s the same status, the distinction isn’t there in two and a half years ago we couldn’t point.

What is the history of subjecting civilian dependents to trial by court-martial in time of peace?

Time of war, there is no question.

We go back to the 1790s.

I did not say if the Court please that the 1790s were a time of war because they’ve tried civilians, no.

I — I thought it was a time of peace when I originally wrote my brief and they are long because I gathered all the materials.

What I said was this.

The commanding general could order a death sentence into execution only in time of war.

He couldn’t do it in time of peace, in time of peace until 1796, he had to refer to the Secretary for Transmission to Congress and yet Wayne executed in numerous death sentence as they also executed dismissal sentences and I started researching what did this was “Mad” Anthony Wayne, that mad?

And the only way those executions and some of them took place at Pittsburgh in 1792.

The only way those could’ve been legal would’ve been in time of war.

And then I saw that excerpt in the orderly book at West Point where Mr. Pickering says, this excludes the notion of its being at time of peace and the like don’t — they thought, not we think, not Your Honors has held (I v. Mary, but they thought that it was the time of war because otherwise, those executions for desertion in time of peace without reference to Congress would’ve been acts of murder.

And they thought they were legal and Secretary Knox was to stick where a man who went by the book.

He thought they were legal.

So, they thought that was time of war.

Alright, so, what have we left for this solid basis of history which says that civilian employees can be tried by court-martial in time of peace?

Well, following the peace of Greenville which I agree marks the end of what they thought was time of war, there are about 10 cases in the 1790s from 1796 to 1798 about 10 cases of civilians tried by court-martial about half of whom haven’t any connection with the armed-services, just citizens of Detroit, a citizen of — of Mississippi territory (Inaudible) and some of these trials take place in a place where there is a form of our civil judicature in force namely in Pittsburgh, in Detroit.

10 cases of which five don’t have any connection and number of the others, they were civil courts.

Then, in between 1825 and 1858, there are seven trials, five of which took place where there were civil courts and then one of them, the Ringsmer case, something was made at the court-martial proceedings saying, let’s adjourn this and have it tried by the District Court of Green County in territory of Utah which is within reach.

And they went ahead so that in five of those seven cases between 1825 and 1858, the civil judicature was present.

One of the others was a trial by regimental court-martial out in the Indian Territory and then the other one, the Court get so discussed that they said where this man is settler’s clerk, he’s got nothing to do with this, we won’t proceed further in the prosecution.

So that, what does this solid basis of history evaporate into?

Episodic instances, many of them flagrantly illegal and most of them beyond the bounds that the Government now claims for.

Now, again, here is the problem of history.

Mr. Davis of course wouldn’t cite an overrule case to Your Honors, but he is relying here on an overruled opinion of the Judge Advocate General because that opinion of General Holt in — in 1866 just a few weeks before the Milligan case came out which was in the 1868 digestive opinions was dropped like a very hot potato from the 1880 edition which in lieu thereof inserted these digested — these opinions in 1877 and the post traitor ruling that we’ve said forth here.

Well, now, where you have — and in 1877, the Judge Advocate General said, this has been the consistent view of the Bureau.

Now, I don’t think that the totality — I mean, I’m not trying to argued by — I’m trying to look through this mass of historical materials to come up with the — with the correct answer.

This doesn’t establish a solid basis of history because the first time that they came to consider it was in 1877, Attorney General Taft that not to open opinion and the Judge Advocate General wanted it reconsidered.

And it was reconsidered and it was reconsidered by Attorney General Devons who had been a division commander in the civil war and he laid down what was the touchtone of — of the boundaries of military jurisdiction from 1877 certainly through the 1912 digest.

Frederick Bernays Wiener:

Then, in 1916, there wasn’t any constitutional articulation.

I’ve had that — read that testimony of General Crowder’s many times.

He — he wanted to catch receiving clerk whose name Mr. Justice Frankfurter does not appear in the — in the hearings just simply the fact that there was such a case.

Felix Frankfurter:

I’m just going to refresh my recollection.

Frederick Bernays Wiener:

Yes.

So, that you don’t any — I mean, when — when you get away from the flagrant illegalities of Anthony Wayne, establishing a military OPA in Western Pennsylvania in 1792, when he get away from Wilkinson taking a citizen out of Detroit because his counsel advised the soldier to desert and tried in by court-martials for a violation of a military order when the magistrates were present, remove those illegal instances and — and you have simply a few unconnected episodes.

You have a history which is a record of — of abuses, of overreaching but you don’t have a settled administrative practice and as a matter of fact, none of these instances were brought to the attention of higher civil authority.

And then, for a minute, the alternatives, we thought we were dealing with the military dependents, perhaps Mrs. Dial in the Singleton case.

And civilian employees and now we are told that it includes also contractor’s employee and the dependents of the civilian employees and the dependents of the contractor’s employees.

In other words, anyone who was — who was livelihood is somehow dependent ultimately on the military or the Department of Defense Appropriation Bill is subject to court-martial jurisdiction.

We have a case in the Singleton brief, Mrs. Heath.

She was the wife of a — of a contractor’s employee on (Inaudible), she was charged with premeditated murder though she got a habeas corpus and was turned over to the civil administration of the Ryuko Island where she should’ve been tried in the first place.

Of course, there are alternatives.

There are alternatives in all of these instances and the obvious alternative where you have the kind of offenses involved here is in the local courts.

And, as Mr. Justice Whittaker indicated, how can you make jurisdiction, the power of the tribunal to act in the premises, how can you make that depend on the length of the person’s stay?

There is a — there is a very amusing — that it’s to me, it’s amusing — colloquy in the legislative history of the code where somebody asked, what about the — the — when they’ve — they have no constitutional doubts about 211, what about the criminal amenability to the code of a visiting mother-in-law?

And, the discussion indicates well if she stays a long time, well then, she’s subject to it, but if she’s only there for a short visit, that’s alright.

Well, there is certainly is a wonderful way of dealing with the mother-in-law problem because you said on that hate to see you go but if you stay any longer, you might be subject to trial by court-martial.[Laughter]

Now, not to close on that kind of note in the matter that’s intensely serious, let me go back to the Necessary and Proper Clause just briefly.

Three times in the last few years, this Court has said in its opinions, we do not write upon a clean slate.

Now, between — between 1787, when the Constitution was submitted for application, over 180 years to 1957, when the Government filed its briefs in the Covert rehearing — when officers phrase nobody but nobody but nobody ever suggested that the Necessary and Proper Clause could be drawn off to enlarge the scope of land and naval forces in Clause 14.

It is significant in this connection that the exception in the Fifth Amendment except for cases arising in the land and naval — or naval forces and in earlier drafts which I think make its meaning more plain except in cases arising in the Government of the land and or naval forces.

There is no suggestion except in cases arising in the land or in naval forces or among such per number accompanying civilians entitled to these whom the Government might prefer to try by court-martial or something like that.

I mean, that there is no — there is no suggestion.

To me that the — the strongest argument against the — against the Necessary and Proper Clause argument is the fact that for 180 years, no, it never occurred to anyone.

We don’t write on a clean slate.

(Inaudible)

Frederick Bernays Wiener:

Well, I think before the Bill of Rights was adopted, there would be more ground for saying that we construe the Clause 14 with Clause 18, with Article III Section 2 even though Hamilton and number 83 of the Federalist issue (Inaudible) that the thing — or that it remained invalid.

But when the amendments were then adopted, it was doubled — it was voted down doubly, it’s the only double guarantee —

But the forces have a different conduct well it has prior to the Bill of Rights (Inaudible)

Frederick Bernays Wiener:

No.

I would say there would be a room for argument.

I don’t think it had any scope but when — when the amend — when the Bill of Rights was adopted with the double guarantee of jury trial, the only double guarantee in — in the Constitution, then it was like the General Forrest to tell the lieutenant, no, I told you twice.

The exception (Inaudible)

Frederick Bernays Wiener:

Well, I think land and naval forces, if we’re dealing with that, if we’re dealing with the history, I don’t think land and naval forces had any context beyond the persons with a military status.

There has been too much — decided and too much said about what a military status is and what it’s consequences are and how it is obtained for me to believe that that is susceptible of — of widening.

Now, one of the points I think that — that in the — in the course of studies on this — in this subject than in the looking into the military law, it was 1790s.

I think I’ve — I’ve — on the basis of the materials, I’ve changed my evaluation of the material — in two respects.

First, when I started the Covert proceeding by petition in the District Court, I thought that there might be a distinction between employees and dependents.

I began convinced on the course of that litigation and the Government then didn’t disagree that it is only a difference of degree and not a difference of time, that it was a question of States.

Other point, what about the undoubted wartime jurisdiction in the field?

My view as to the scope of that haven’t changed because it’s so clearly and specifically expressly set forth.

I do feel however that that jurisdiction rests not on Clause 14 but on the war power because otherwise, there wouldn’t be any basis for bringing all these civilians into the(Inaudible) of military tribunals.

And closing with what I suppose is one of the central constitutional questions, are we to expand Clause 14?

Let us go back to the original exposition, John Marshall, the great Chief Justice.

That the end would be legitimate whether it would be within the scope of the Constitution and all means which are appropriate, which are plainly adopted to that end which are not prohibited but consist with the letter and spirit of the Constitution are constitutional.

I think that to try civilians by court-martial in time of peace is not a legitimate end.

It’s not within the scope of the Constitution, it’s twice prohibited by the Constitution and it’s wholly inconsistent with the spirit of the Constitution and with the spirit of our institutions.