LOCATION: Circuit Court of Mobile County
DOCKET NO.: 646
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 395 US 258 (1969)
ARGUED: Jan 23, 1969
DECIDED: Jun 02, 1969
Facts of the case
Media for O'Callahan v. Parker
Audio Transcription for Oral Argument - January 23, 1969 in O'Callahan v. Parker
Number 646, James F. O'Callahan, petitioner, versus J. J. Parker, warden.
May it please the Court.
This case is before the Court on a writ of certiorari to the Court of Appeals from the Third Circuit and is limited to a single legal issue which we think is of profound importance to several million young Americans now in the Armed Forces of the United States in relating to the balance between civil and military jurisdiction over them.
Question is a simple one.
Does a Court-martial have jurisdiction in peace time to try a member of the Armed Forces charged with a civilian crime and by that, I mean, a crime which is normally cognizable in the civil courts alleged to have been committed by him off post and off duty.
In this case, the crime is attempted rape but if the Government is right, it could try a member of the Armed Forces for any crime at all including securities violation, violation of the anti-trust laws or anything else.
Unless the Court think that this is a far-fetched example, I learned this morning that a technical sergeant at Myrtle Airbase in South Carolina was convicted just a few days ago of the crime of income tax evasion by a Court-Martial.
The relative role of the military in civilian government has been of considerable concern throughout our history and for that matter throughout the history of England.
Under one hand, the Constitution provides that Congress may make rules for the Government in regulation of the land and naval forces.
On the other hand, it provides for jury trial in an Article 3 Court for grand jury indictment.
In federal cases and most states also have similar provisions, some variation on the grand jury but all of them provide for a trial before a civilian court and for a jury trial.
In this kind of situation, this Court has always taken the position that in order to determine the relationship of these two apparently conflicting provisions or provisions that may conflict in our Constitution, that's it's appropriate to look into the historical context, to look at the probable intent of the framers of the Constitution and to determine on the basis of that what rule shall apply.
Now, we differ somewhat with the Government on our view of the history which is not particularly surprising but as we see the history, for over a hundred years of both before and after the adoption of the Constitution, Court-martial jurisdiction was limited both in this country and in England to offenses such as decision, mutiny, striking or scorning a superior officer, tardiness for parade, failure to salute, theft from military stores and a host of other offenses daring and obvious immediate relationship to the army, many of which are not punishable in the civilian courts at all.
These are the kind of offenses and the only kind of offenses listed in the Articles of War adopted by the Continental Congress in 1775, renewed in 1776 and in essence, they are the offenses for which Court-martial jurisdiction was provided in the United States in peace time up until 1916.
It was in the articles of 1916, perhaps an anticipation of another war, but in any event, in 1916, for the first time, Congress provided Court-martial jurisdiction and the Articles of War for the first time defined crimes other than military crimes going to offenses such as rape, murder, assault and similar ordinary, conventional civilian offenses.
Now, the framers of the Constitution obviously did not act in a vacuum as this Court has pointed out on numerous occasions both in handling jury cases such as Patton and particularly in handling military law cases such as Covert against Reid and the many cases that followed that.
The people who framed the constitution were quite aware of the English Revolution.
They were aware of the abuses that they themselves suffered in this very field and it may reasonably be assumed that they wrote the Constitution with this in mind.
English history is I think fairly clear.
In 1627, the petitioner of right addressed to Charles I, complained of the institution of Court-martial for any offense even an offense trying a soldier if that happened in the Courts of England where the civil courts were open and the petition was addressed to the king because the king had directed commissions to go forth and to try members of the Armed Forces although the civilian courts according to the petitioner were perfectly capable of trying these forces, these offenses.
As a result to the petition of right, King Charles withdrew his military commissions but the subject was a matter of considerable conflict between parliament and the stewards for a good while after.
In 1689, after the revolution of 1688, parliament passed the Mutiny Act which for the first time provided by act of parliament at least, trial by Court-Martial, of people in the Armed Forces and the only three offenses that were listed in the Mutiny Act were desertion, sedition and mutiny.
Now, the Act was a very limited duration.
The first act was passed for a single period, for over a period of one single year and Congress and the parliament did over the next century renewed the statute annually.
Each time confining Court-martial jurisdiction for crimes committed within England to crimes that were clearly military in nature of the type mentioned in the Mutiny Act of 1689, the desertion, sedition and disrespect to the superior officer, that sort of thing.
Now, it is true that as the English empire expanded and England took up commitments in foreign countries that Court-martial jurisdiction was exercised over crimes committed by members of the Armed Forces on civilians in foreign countries but only in foreign countries, never in England.
There is some discussion in the authorities indicating and there's a case in England in about the middle of the 18th century holding that whereas Court-martial jurisdiction within England came under the Mutiny Act and therefore within the area of Congresses, of the parliament's jurisdiction, Court-martial jurisdiction oversees was within the king's prerogative and I think that by analogy, we might very well say that whereas Court-martial jurisdiction in the United States in time of peace is quite a different thing from Court-martial jurisdiction in times of war.
And in time of war, Court-martial -- an extended Court-martial jurisdiction may perhaps be argued forth as coming within the war power of Congress.
This particular offense and the issue presented before us was committed in time of peace.