Ours is a government of divided authority on the assumption that in division there is not only strength but freedom from tyranny. And under our Constitution courts of law alone are given power to try civilians for their offenses against the United States. The philosophy expressed by Lord Coke, speaking long ago from a wealth of experience, is still timely:

"God send me never to live under the Law of Conveniency or Discretion. Shall the Souldier and Justice Sit on one Bench, the Trumpet will not let the Cryer speak in Westminster-Hall." 75

In No. 701, Reid v. Covert, the judgment of the District Court directing that Mrs. Covert be released from custody is

Affirmed.

In No. 713, Kinsella v. Krueger, the judgment of the District Court is reversed and the case is remanded with instructions to order Mrs. Smith released from custody.

Reversed and remanded.

MR. JUSTICE WHITTAKER took no part in the consideration or decision of these cases.

75 3 Rushworth, Historical Collections, App. 81.

Nos. 701 AND 713.-OCTOBER TERM, 1955.

MR. JUSTICE FRANKFURTER, concurring in the result. These cases involve the constitutional power of Congress to provide for trial of civilian dependents accompanying members of the armed forces abroad by court-martial in capital cases. The normal method of trial of federal offenses under the Constitution is in a civilian tribunal. Trial of offenses by way of courtmartial, with all the characteristics of its procedure so different from the forms and safeguards of procedure in the conventional courts, is an exercise of exceptional jurisdiction, arising from the power granted to Congress in Art. I, § 8, cl. 14, of the Constitution of the United States "To make Rules for the Government and Regulation of the land and naval Forces." Dynes v. Hoover, 20 How. 65; see Toth v. Quarles, 350 U. S. 11; Winthrop, Military Law and Precedents (2d ed. 1896), 52. Article 2 (11) of the Uniform Code of Military Justice, 64

Stat. 107, 109, 50 U. S. C. § 552, and its predecessors were passed as an exercise of that power, and the agreements with England and Japan recognized that the jurisdiction to be exercised under those agreements was based on the relation of the persons involved to the military forces. See the agreement with Great Britain, 57 Stat. 1193, E. A. S. No. 355, and the United States of America (Visiting Forces) Act, 1942, 5 & 6 Geo. 6, c. 31; and the 1952 administrative agreement with Japan, 3 U. S. Treaties and Other International Agreements 3341, T. I. A.. S. No. 2492.

Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the "land and naval Forces," and who therefore are not protected by specific provisions of Article III and the Fifth and Sixth Amendments. It is of course true that, at least regarding the right to a grand jury indictment, the Fifth Amendment is not unmindful of the demands of military discipline.1 Within the scope of appropriate construction, the phrase "except in cases arising in the land and naval Forces" has been assumed also to modify the guaranties of speedy and public trial by jury. And so, the problem before us is not to be answered by recourse to the literal words of this exception. The cases cannot be decided simply by saying that since these women were not in uniform, they were not "in

1"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 . . . ."

Article 2 of the Uniform Code of Military Justice provides: "The following persons are subject to this code: . . . (11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States

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the land and naval Forces." The Court's function in constitutional adjudications is not exhausted by a literal reading of words. It may be tiresome, but it is nonetheless vital, to keep our judicial minds fixed on the injunction that "it is a constitution we are expounding." M'Culloch v. Maryland, 4 Wheat. 316, 407. Although Winthrop in his treatise states that the Constitution "clearly distinguishes the military from the civil class as separate communities" and "recognizes no third class which is part civil and part military-military for a particular purpose or in a particular situation, and civil for all other purposes and in all other situations Winthrop, Military Law and Precedents (2d ed. 1896), 145, this Court, applying appropriate methods of constitutional interpretation, has long held, and in a variety of situations, that in the exercise of a power specifically granted to it, Congress may sweep in what may be necessary to make effective the explicitly worded power. See Jacob Ruppert v. Caffey, 251 U. S. 264, especially 289 et seq.; Purity Extract Co. v. Lynch, 226 U. S. 192, 201; Railroad Commission v. Chicago, Burlington & Quincy R. Co., 257 U. S. 563, 588. This is the significance of the Necessary and Proper Clause, which is not to be considered so much a separate clause in Art. I, § 8, as an integral part of each of the preceding 17 clauses. Only thus may be avoided a strangling literalness in construing a document that is not an enumeration of static rules but the living framework of government designed for an undefined future. M'Culloch v. Maryland, 4 Wheat. 316; Hurtado v. California, 110 U. S. 516, 530–531.

Everything that may be deemed, as the exercise of an allowable judgment by Congress, to fall fairly within the conception conveyed by the power given to Congress "To make Rules for the Government and Regulation of the land and naval Forces" is constitutionally within that legislative grant and not subject to revision by the inde

pendent judgment of the Court. To be sure, every event or transaction that bears some relation to "the land and naval Forces" does not ipso facto come within the tolerant conception of that legislative grant. The issue in these cases involves regard for considerations not dissimilar to those involved in a determination under the Due Process Clause. Obviously, the practical situations before us bear some relation to the military. Yet the question for this Court is not merely whether the relation of these women to the "land and naval Forces" is sufficiently close to preclude the necessity of finding that Congress has been arbitrary in its selection of a particular method of trial. For although we must look to Art. I, § 8, cl. 14, as the immediate justifying power, it is not the only the clause of the Constitution to be taken into account. The Constitution is an organic scheme of government to be dealt with as an entirety. A particular provision cannot be dissevered from the rest of the Constitution. Our conclusion in these cases therefore must take due account of Article III and the Fifth and Sixth Amendments. We must weigh all the factors involved in these cases in order to decide whether these women dependents are so closely related to what Congress may allowably deem essential for the effective "Government and Regulation of the land and naval Forces" that they may be subjected to court-martial jurisdiction in these capital cases, when the consequence is loss of the protections afforded by Article III and the Fifth and Sixth Amendments.

We are not concerned here even with the possibility of some alternative non-military type of trial that does not contain all the safeguards of Article III and the Fifth and Sixth Amendments. We must judge only what has been enacted and what is at issue. It is the power actually asserted by Congress under Art. I, § 8, cl. 14, that must now be adjudged in the light of Article III and the