# United States ex rel. Toth v. Quarles/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Reed
United States Supreme Court
350 U.S. 11
United States ex rel. Toth v. Quarles
Argued: Feb. 8, 9, 1955. ---
After serving with the United States Air Force in Korea, Robert W. Toth was honorably discharged. He returned to his home in Pittsburgh and went to work in a steel plant. Five months later he was arrested by military authorities on charges of murder and conspiracy to commit murder while an airman in Korea. At the time of arrest he had no relationship of any kind with the military. He was taken to Korea to stand trial before a court-martial under authority of a 1950 Act of Congress. The Court of Appeals, 94 U.S.App.D.C. 28, 215 F.2d 22, sustained the Act, rejecting the contention that civilian ex-servicemen like Toth could not constitutionally be subjected to trial by court-martial. We granted certiorari to pass upon this important constitutional question. United States ex rel. Toth v. Talbott, 348 U.S. 809, 75 S.Ct. 39.
The 1950 Act cannot be sustained on the constitutional power of Congress 'To raise and support Armies', 'To declare War', or to punish 'Offenses against the Law of Nations.' Art. 1, § 8. And this assertion of military authority over civilians cannot rest on the President's power as commander-in-chief, or on any theory of martial law. See Ex parte Milligan, 4 Wall. 2, 124-127, 18 L.Ed. 281. The Government's contention is that the Act is a valid exercise of the power granted Congress in Article I of the Constitution 'To make Rules for the Government and Regulation of the land and naval Forces', as supplemented by the Necessary and Proper Clause.
This Court has held that the Article I clause just quoted authorizes Congress to subject persons actually in the armed service to trial by court-martial for military and naval offenses. Later it was held that court-martial jurisdiction could be exerted over a dishonorably discharged soldier then a military prisoner serving a sentence imposed by a prior court-martial. It has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its institutions. To allow this extension of military authority would require an extremely broad construction of the language used in the constitutional provision relied on. For given its natural meaning, the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals.
Article III provides for the establishment of a court system as one of the separate but coordinate branches of the National Government. It is the primary, indeed the sole business of these courts to try cases and controversies between individuals and between individuals and the Government. This includes trial of criminal cases. These courts are presided over by judges appointed for life, subject only to removal by impeachment. Their compensation cannot be diminished during their continuance in office. The provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government. But the Constitution and the Amendments in the Bill of Rights show that the Founders were not satisfied with leaving determination of guilt or innocence to judges, even though wholly independent. They further provided that no person should be held to answer in those courts for capital or other infamous crimes unless on the presentment or indictment of a grand jury drawn from the body of the people. Other safeguards designed to protect defendants against oppressive governmental practices were included. One of these was considered so important to liberty of the individual that it appears in two parts of the Constitution. Article III, § 2, commands that the 'Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.' And the Sixth Amendment provides that '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 * * *.' This right of trial by jury ranks very high in our catalogue of constitutional safeguards.
We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts. For instance, the Constitution does not provide life tenure for those performing judicial functions in military trials. They are appointed by military commanders and may be removed at will. Nor does the Constitution protect their salaries as it does judicial salaries. Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls them. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
Moreover, there is a great difference between trial by jury and trial by selected members of the military forces.
It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.
Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions and habits. Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field. On many occasions, fully known to the Founders of this country, jurors-plain people-have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices. The acquittal of William Penn is an illustrious example. Unfortunately, instances could also be cited where jurors have themselves betrayed the cause of justice by verdicts based on prejudice or pressures. In such circumstances independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.
The 1950 Act here considered deprives of jury trial and sweeps under military jurisdiction over 3,000,000 persons who have become veterans since the Act became effective. That number is bound to grow from year to year; there are now more than 3,000,000 men and women in uniform. These figures point up what would be the enormous scope of a holding that Congress could subject every ex-serviceman and woman in the land to trial by court-martial for any alleged offense committed while he or she had been a member of the armed forces. Every veteran discharged since passage of the 1950 Act is subject to military trial for any offense punishable by as much as five years' imprisonment unless the offense is now punishable in a civilian court. And one need only glance at the Military Code to see what a vast number and variety of offenses are thus brought under military jurisdiction. Included within these are crimes such as murder, conspiracy, absence without leave, contempt toward officials, disrespect toward superior officers, willful or neglectful loss, damage, or destruction of government property, making false official statements, dueling, breach of the peace, forgery, fraud, assault, and many others. It is true that with reference to some of these offenses, very minor ones, veterans cannot now be tried because of a presidential order fixing the punishment for such offenses at less than five years. But that amelioration of the Military Code may be temporary, since punishment can be raised or lowered at the will of the President. It is also true that under the present law courts-martial have jurisdiction only if no civilian court does. But that might also be changed by Congress. Thus there is no justification for treating the Act as a mere minor increase of congressional power to expand military jurisdiction. It is a great change, both actually and potentially.
Fear has been expressed that if this law is not sustained discharged soldiers may escape punishment altogether for crimes they commit while in the service. But that fear is not warranted and was not shared by the Judge Advocate General of the Army who made a strong statement against passage of the law. He asked Congress to 'confer jurisdiction upon Federal courts to try any person for an offense denounced by the (military) code if he is no longer subject thereto. This would be consistent with the fifth amendment of the Constitution.' The Judge Advocate General went on to tell Congress that 'If you expressly confer jurisdiction on the Federal courts to try such cases, you preserve the constitutional separation of military and civil courts, you save the military from a lot of unmerited grief, and you provide for a clean, constitutional method for disposing of such cases.' It is conceded that it was wholly within the constitutional power of Congress to follow this suggestion and provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. This concession is justified. U.S.Const. Art. III, § 2; and see, e.g., Jones v. United States, 137 U.S. 202, 211-212, 11 S.Ct. 80, 83, 34 L.Ed. 691; United States v. Bowman, 260 U.S. 94, 97-98, 43 S.Ct. 39, 40-41, 67 L.Ed. 149; Skiriotes v. Florida, 313 U.S. 69, 73-74, 61 S.Ct. 924, 927-928, 85 L.Ed. 1193. There can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts.
None of the other reasons suggested by the Government are sufficient to justify a broad construction of the constitutional grant of power to Congress to regulate the armed forces. That provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause. It is impossible to think that the discipline of the Army is going to be disrupted, its morale impaired, or its orderly processes disturbed, by giving exservicemen the benefit of a civilian court trial when they are actually civilians. And we are not impressed by the fact that some other countries which do not have our Bill of Rights indulge in the practice of subjecting civilians who were once soldiers to trials by courts-martial instead of trials by civilian courts.
There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. Even as late as the Seventeenth Century standing armies and courts-martial were not established institutions in England. Court-martial jurisdiction sprang from the belief that within the military ranks there is need for a prompt, ready-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades. Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal and constitutionally preferable system of trial by jury.
Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed.' We hold that Congress cannot subject civilians like Toth to trial by court-martial. They, like other civilians, are entitled to have the benefit of safeguards afforded those tried in the regular courts authorized by Article III of the Constitution.
Reversed.
Mr. Justice REED, with whom Mr. Justice BURTON and Mr. Justice MINTON join, dissenting.

## Notes

* ↑ The charges were violations of Articles 118 and 81 of the Uniform Code of Military Justice, 64 Stat. 140, 134, 50 U.S.C. §§ 712 and 675, 50 U.S.C.A. §§ 712, 675.
* ↑ Art. 3(a), Uniform Code of Military Justice, 64 Stat. 109, 50 U.S.C. § 553, 50 U.S.C.A. § 553, provides: 'Subject to the provisions of article 43, any person charged with having committed, while in a status in which he was subject to this code, an offense against this code, punishable by confinement of five years or more and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the termination of said status.'
* ↑ This habeas corpus proceeding was brought in the District Court for the District of Columbia by Toth's sister while he was held in Korea. Without passing on any constitutional question the District Court ordered Toth discharged on the ground that he should not have been carried to Korea for trial without a hearing. Toth v. Talbott, D.C., 113 F.Supp. 330, Id., D.C., 114 F.Supp. 468.
* ↑ See Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3; In re Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 L.Ed. 499.
* ↑ The Fifth Amendment provides 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, 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 * * *.' This provision does not grant court-martial power to Congress; it merely makes clear that there need be no indictment for such military offenses as Congress can authorize military tribunals to try under its Article I power to make rules to govern the armed forces.
* ↑ Dynes v. Hoover, 20 How. 65, 15 L.Ed. 838.
* ↑ Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469.
* ↑ In 1863 Congress passed a statute authorizing trial of ex-soldiers for commission of fraud against the Government while in the service; this law also authorized court-martial trial of contractors not part of the military forces. 12 Stat. 696. The latter provision of the 1863 law appears never to have been sustained by any court. Lower courts have disagreed as to the constitutional validity of the provision authorizing ex-soldiers to be tried. See, e.g., In re Bogart, 3 Fed.Cas.No.1,596, p. 796. Compare Ex parte Henderson, 11 Fed.Cas.No.6,349, p. 1067; United States ex rel. Flannery v. Commanding General, D.C., 69 F.Supp. 661, reversed by stipulation in order of the Second Circuit, No. 20235, April 18, 1946. See United States ex rel. Hirshberg v. Cooke, 336 U.S. 210, 69 S.Ct. 530, 93 L.Ed. 621.
* ↑ A declaration of rights adopted by nine colonies in 1765 contained this statement: 'That trial by jury, is the inherent and invaluable right of every British subject in these colonies.' Harvard Classics, Volume 43, p. 148. The Declaration of Independence stated as one of the grievances of the colonies that the King of Great Britain had deprived the colonists of the benefits of trial by jury in many cases and that he had 'affected to render the Military independent of and superior to the Civil power.' Another charge was that he had transported colonials 'beyond Seas to be tried for pretended offences.'
* ↑ Chief Justice Cooley said: 'The trial of criminal cases is by a jury of the country, and not by the court. The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all casses of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice.' People v. Garbutt, 17 Mich. 9, 27.
* ↑ 'Juries undoubtedly may make mistakes: they may commit errors: they may commit gross ones. But changed as they constantly are, their errors and mistakes can never grow into a dangerous system. The native uprightness of their sentiments will not be bent under the weight of precedent and authority. The esprit du corps will not be introduced among them; nor will society experience from them those mischiefs, of which the esprit du corps, unchecked, is sometimes productive.' II Wilson's Works (Andrews ed. 1896) 222.
* ↑ An outstanding instance is the Dean of St. Asaph's Case, 21 How.St.Tr. 847, discussed in Stryker, For the Defense, 119-136.
* ↑ Penn and Mead's Case, 6 Howell's State Trials 951. After trial the jurors were fined for acquitting Penn contrary to the court's instructions. One was imprisoned for not paying the fine, but the Court of Common Pleas released him in habeas corpus proceeding, upholding the freedom of the jury to decide the case. Bushell's Case, 6 How.St.Tr. 999.
* ↑ See II Wilson's Works (Andrews ed. 1896) 222.
* ↑ Bureau of the Census, Current Population Reports, Series P-25, No. 101 (U.S. Dept. Commerce 1954).
* ↑ Arts. 77-134, Uniform Code of Military Justice, 64 Stat. 133-143, 50 U.S.C. §§ 671-728, 50 U.S.C.A. §§ 671-728.
* ↑ A particularly sweeping offense, punishable by death and not subject to any statute of limitations, is found in Article 94, which provides in part that anyone '(2) who with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person or persons, revolt, violence, or other distubance against such authority is guilty of sedition; (3) who fails to do his utmost to prevent and suppress an offense of mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior or commanding officer of an offense of mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.' (Emphasis supplied.)
* ↑ See Table of Maximum Punishments, 127 c, MCM, 1951, 16 Fed.Reg. 1364-1368.
* ↑ Hearings before Subcommittee of Senate Committee on Armed Services on S. 857 and H.R. 4080, 81st Cong., 1st Sess. 256-257. The Assistant General Counsel of the Office of Secretary of Defense, who was chairman of a committee that helped draft the Uniform Code of Military Justice, expressed doubts as to the constitutionality of Article 3(a). Hearings before Subcommittee of House Committee on Armed Services on H.R. 2498, 81st Cong., 1st Sess. 881.
* ↑ The historical background of this country's preference for civilian over military trials was impressively presented in the arguments of counsel and opinion of this Court in Ex parte Milligan, 4 Wall. 2, 121, 18 L.Ed. 281. And see Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688.
* ↑ 3 Macaulay, History of England from the Accession of James the Second (London, 1855), 45.
* ↑ Mr. Justice Sutherland writing for the Court in Dimick v. Schiedt, 293 U.S. 474, 485-486, 55 S.Ct. 296, 300-301, 79 L.Ed. 603, said, 'The right of trial by jury is of ancient origin, characterized by Blackstone as 'the glory of the English law' and 'the most transcendent privilege which any subject can enjoy' (Bk. 3, p. 379); and, as Justice Story said (2 Story on the Constitution, § 1779), '* * * the Constitution would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms.' With, perhaps, some exceptions, trial by jury has always been, and still is, generally regarded as the normal and preferable mode of disposing of issues of fact in civil cases at law as well as in criminal cases. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. Compare Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253 (263), 74 L.Ed. 854.'
* ↑ Anderson v. Dunn, 6 Wheat. 204, 230-231, 5 L.Ed. 242.
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