tary forces shall be punished for fraud under military regulation "as the court-martial may adjudge, save the punishment of death." 12 Stat. 696-697, § 1. Under § 2, jurisdiction of the court-martial was extended to dischargees.13 The provision for charge and court-martial after discharge was ruled constitutional in 1866 by Attorney General Stanbery." The section was held constitutional in 1873. In re Bogart, 3 Fed. Cas. 796. See other cases, note 22, infra. It was apparently held unconstitutional in 1946 under Article I in the District Court for the Southern District of New York, although the problem under the Fifth Amendment was also considered. United States ex rel. Flannery v. Commanding General, 69 F. Supp. 661, 664.15

13 "That any person heretofore called or hereafter to be called into or employed in such forces or service, who shall commit any violation of this act and shall afterwards receive his discharge, or be dismissed from the service, shall, notwithstanding such discharge or dismissal, continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge or been dismissed."

This was carried into the Articles of War. Rev. Stat. (1878), Art. 60, p. 235; 10 U. S. C. (1946 ed.) § 1566, Art. 94, amended 62 Stat. 641, and in the Articles for the Government of the Navy, 34 U. S. C. (1946 ed.) § 1200, Art. 14 (Eleventh), until the enactment of the present Uniform Code, Art. 3.

14 12 Op. Atty. Gen. 4, 5: "It is simply a regulation which is to follow a dismissal, providing, in certain contingencies, for the restoration of the officer to the service, and leaving the dismissal in full force if those contingencies do not happen."

In 1848 Attorney General Toucey, in the absence of any applicable rule for the government of the Army, had ruled that a charge of murder could not be brought against an officer already mustered out. 5 Op. Atty. Gen. 55, 58. A similar conclusion was stated by Attorney General Palmer (1919), 31 Op. Atty. Gen. 521, 529. See 8 Op. Atty. Gen. 328, 332.

15 We are advised by the Government that this case was reversed by stipulation. See Kronberg v. Hale, 180 F. 2d 128, 130.

It is also to be noted that the present Uniform Code, Art. 4, 50 U. S. C. § 554, provides that an officer dismissed by the President may request trial by court-martial after such dismissal. A similar provision was first enacted by Congress in 1865, § 12, 13 Stat. 487, 489; see Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 64, 65.

The Court finds a "compelling reason" for construing the clause for Army regulation more narrowly than has been done by the Congress and the Executive for many years. This is that trial by Article III judges and juries offers safeguards to military offenders superior to those offered by courts-martial. Under our judicial system the use of juries has been found satisfactory in civil life. The argument for the adoption of civil trials for the military might appeal to Congress, if presented there. But, with due respect to the premise of the majority, the assumed superiority of the civil courts in the trial of service crimes should have no force in the construction of the constitutional power of Congress to enact Article 3 (a) of the Code. Belief that an accused has better opportunities to escape conviction in a civil court should not influence a conclusion as to constitutional power. As later appears in this opinion, the Fifth and Sixth Amendments except the land and naval forces from their commands. The advantages and disadvantages of indictment, venue and jury trial for the military have been weighed and determined adversely to the Court's conclusion by the Constitution and the Congress. Certainly the number of former members of the armed services now living is immaterial to the constitutional issue, as are the "dangers" suggested to be "lurking in military trials." The military is in position to give its personnel a fair trial. The only logical ground for declaring Article 3 (a) unconstitutional is that military crimes cannot be so punished because such procedure is beyond the reach of the con

gressional authority to make rules for government of military personnel. Subsequent punishment by military procedures will help discipline during service. Such a conclusion by Congress is not strained or unreasonable but a natural use of its power to make regulations for the armed services. The choice is for Congress, not the Court.

(b) Another constitutional problem arises, i. e., that Article 3 (a) is unlawful by reason of the limitations on prosecutions of the Fifth and Sixth Amendments to the Constitution.10

The argument upon the Sixth Amendment requires only summary treatment. The rights to a speedy and public trial, impartiality of the triers, information as to the charge, confrontation, compulsory process for witnesses and assistance of counsel are not in issue. This accused will not have for his trial a jury of the State and district of the crime, previously ascertained by our law. That is an impossibility in the circumstances of this case. Nor can it be that the Sixth Amendment requirements as

16 Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

to jury and place were intended to apply to the "cases arising in the land or naval forces" which were excepted from the protection of the grand jury by the Fifth. That would abrogate the authority of Congress to govern the military by courts-martial. It was so announced by this Court, unanimously, in Ex parte Milligan, 4 Wall. 2, 122.1

17 "Another guarantee of freedom was broken when Milligan was denied a trial by jury. The great minds of the country have differed on the correct interpretation to be given to various provisions of the Federal Constitution; and judicial decision has been often invoked to settle their true meaning; but until recently no one ever doubted that the right of trial by jury was fortified in the organic law against the power of attack. It is now assailed; but if ideas can be expressed in words, and language has any meaning, this right-one of the most valuable in a free country-is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service. The sixth amendment affirms that 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury,' language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity of an indictment, or presentment, before any one can be held to answer for high crimes, 'excepts cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger;' and the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth."

The four who concurred agreed with the majority on this point: "The Constitution itself provides for military government as well as for civil government. And we do not understand it to be claimed that the civil safeguards of the Constitution have application in cases within the proper sphere of the former.

"What, then, is that proper sphere? Congress has power to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; and to provide for governing such part of the militia as may be in the service of the United States.

"It is not denied that the power to make rules for the government of the army and navy is a power to provide for trial and punishment by military courts without a jury. It has been so understood and exercised from the adoption of the Constitution to the present time. "Nor, in our judgment, does the fifth, or any other amendment,

Defendants in cases arising in the armed forces, we think, are not entitled to demand trial by jury, whether the crime was committed on foreign soil or at a place within a State or previously ascertained district.

Turning to the Fifth Amendment, the critical words are obviously "cases arising in the land or naval forces." The events leading to the taking of Toth into custody occurred while he was enlisted. They constituted then and now a violation of the Uniform Code. Relator would limit the quoted words to cases where charges had been filed during service. She stresses the phrase "when in actual service," but this Court has held and all the history of our courts-martial shows that such phrase has reference only to "cases arising . . . in the Militia." Johnson v. Sayre, 158 U. S. 109, 114.

The Fifth, like the other early amendments, arose from the determination to protect the rights of citizens. As the Articles of Confederation, Article 9, granted authority to the central government to make rules for the government and regulation of the armed forces, the Nation was

abridge that power. 'Cases arising in the land and naval forces, or in the militia in actual service in time of war or public danger,' are expressly excepted from the fifth amendment, 'that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,' and it is admitted that the exception applies to the other amendments as well as to the fifth.

"We think, therefore, that the power of Congress, in the government of the land and naval forces and of the militia, is not at all affected by the fifth or any other amendment." 4 Wall., at 137-138.

It was so held as to Haupt, treated as an American citizen in Ex parte Quirin, 317 U. S. 1, 20, 24, 40, 44.

"We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury." Id., at 45.