conclusion the majority found it unnecessary to consider the power of Congress "To make Rules for the Government and Regulation of the land and naval Forces" under Article I of the Constitution.

Subsequently, the Court granted a petition for rehearing, 352 U. S. 901. Now, after further argument and consideration, we conclude that the previous decisions cannot be permitted to stand. We hold that Mrs. Smith and Mrs. Covert could not constitutionally be tried by military authorities.

I.

3

At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government. It was recognized long before Paul successfully invoked his right as a Roman citizen to be tried in strict accordance with Roman law. And many centuries later an English historian wrote:

"In a settled Colony the inhabitants have all the rights of Englishmen. They take with them, in the

3 Martin v. Hunter's Lessee, 1 Wheat. 304, 326; Ex parte Milligan, 4 Wall. 2, 119, 136-137; Graves v. New York ex rel. O'Keefe, 306 U. S. 466, 477; Ex parte Quirin, 317 U. S. 1, 25.

4 Marbury v. Madison, 1 Cranch 137, 176-180; Hawaii v. Mankichi, 190 U. S. 197, 236-239 (Harlan, J., dissenting).

first place, that which no Englishman can by expatriation put off, namely, allegiance to the Crown, the duty of obedience to the lawful commands of the Sovereign, and obedience to the Laws which Parliament may think proper to make with reference to such a Colony. But, on the other hand, they take with them all the rights and liberties of British Subjects; all the rights and liberties as against the Prerogative of the Crown, which they would enjoy in this county.'

The rights and liberties which citizens of our country enjoy are not protected by custom and tradition alone, they have been jealously preserved from the encroachments of Government by express provisions of our written Constitution."

Among those provisions, Art. III, § 2, and the Fifth and Sixth Amendments are directly relevant to these cases. Article III, § 2 lays down the rule that:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

The Fifth Amendment declares:

"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;

52 Clode, Military Forces of the Crown, 175. 6 Cf. Barron v. Baltimore, 7 Pet. 243, 250.

"In all criminal prosecutions, the enjoy the right to a speedy and publ impartial jury of the State and distri 03 crime shall have been committed.d.

The language of Art. III, § 2 manifest tutional protections for the individual to restrict the United States Government outside of this country, as well as here at declaring that all criminal trials must be section states that when a crime is "n within any State, the Trial shall be at Places as the Congress may by Law have this language is permitted to have its obvi § 2 is applicable to criminal trials outside as a group without regard to where the of mitted or the trial held. From the very f federal statutes have implemented the pro by providing for trial of murder and other mitted outside the jurisdiction of any S district where the offender is apprehended,

This Court has constantly reiterated that the the 1 Constitution where clear and unambiguous must be evident meaning. See, e. g., Ogden v. Saunders, 12 W 303; Lake County v. Rollins, 130 U. S. 662, 670-6 States v. Sprague, 282 U. S. 716, 731-732, the Court

"The Constitution was written to be understood its words and phrases were used in their normal a distinguished from technical meaning; where the in there is no room for construction and no excuse for i addition. The fact that an instrument drawn wi lous care and by men who so well understood how to fit their thought does not contain any such limiting persuasive evidence that no qualification was intended

8 According to Madison, the section was intended " trial by jury of offenses committed out of any State Papers (Gilpin ed. 1841) 1441.

9

he may first be brought." The Fifth and Sixth Amendments, like Art. III, § 2, are also all inclusive with their sweeping references to "no person" and to "all criminal prosecutions."

This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States.10 While it has been suggested that only those constitutional rights which are "fundamental" protect Americans abroad,11 we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of "Thou shalt nots" which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments. Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before à civilian judge and by an independent jury picked from the common citizenry are not fundamental rights.12 As Blackstone wrote in his Commentaries:

"... the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English

91 Stat. 113-114. With slight modifications this provision is now 18 U.S. C. § 3238.

10 See, e. g., Balzac v. Porto Rico, 258 U. S. 298, 312-313 (Due Process of Law); Downes v. Bidwell, 182 U. S. 244, 277 (First Amendment, Prohibition against Ex Post Facto Laws or Bills of Attainder); Mitchell v. Harmony, 13 How. 115, 134 (Just Compensation Clause of the Fifth Amendment); Best v. United States, 184 F. 2d 131, 138 (Fourth Amendment); Eisentrager v. Forrestal, 84 U. S. App. D. C. 396, 174 F. 2d 961 (Right to Habeas Corpus), rev'd on other grounds sub nom. Johnson v. Eisentrager, 339 U. S. 763; Turney v. United States, 115 F. Supp. 457, 464 (Just Compensation Clause of the Fifth Amendment).

11 See Dorr v. United States, 195 U. S. 138, 144-148.

12 The right to trial by jury in a criminal case is twice guaranteed by the Constitution. It is common knowledge that the fear that

99 13

law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied to criminal cases! .. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.' Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency or convenience.

The keystone of supporting authorities mustered by the Court's opinion last June to justify its holding that Art. III, § 2 and the Fifth and Sixth Amendments did not

jury trial might be abolished was one of the principal sources of objection to the Federal Constitution and was an important reason for the adoption of the Bill of Rights. The Sixth Amendment reaffirmed the right to trial by jury in criminal cases and the Seventh Amendment insured such trial in civil controversies. See 2 Elliot's Debates (2d ed. 1836) passim, 3 id. passim.

13 3 Blackstone Commentaries 379. As to the importance of trial by jury, see also Ex parte Milligan, 4 Wall. 2, 122-123; Thompson v. Utah, 170 U. S. 343, 349–350; United States ex rel. Toth v. Quarles, 350 U. S. 11, 16, 18-19; 2 Kent, Commentaries, 3-10; The Federalist No. 83 (Hamilton); 2 Wilson's Works (Andrews ed. 1896) 222. De Tocqueville observed:

"The institution of the jury

places the real direction of society in the hands of the governed, or of a portion of the governed, and

not in that of the government.

He who punishes the criminal is . . . the real master of society. . . . All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury." 1 De Tocqueville, Democracy in America (Reeve transl. 1948 ed.), 282–283.