483 U.S. 435 (1987)

SOLORIO
v.
UNITED STATES

No. 85-1581.

Supreme Court of United States.

Argued February 24, 1987 Decided June 25, 1987 CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS

*436 Robert W. Bruce, Jr., argued the cause and filed briefs for petitioner.

Eugene R. Fidell argued the cause for the American Civil Liberties Union as amicus curiae urging reversal. With him on the brief were George Kannar, Burt Neuborne, Arthur B. Spitzer, and Keith M. Harrison.

Solicitor General Fried argued the cause for the United States. With him on the brief were Assistant Attorney General Weld, Deputy Solicitor General Bryson, Paul J. Larkin, Jr., John F. De Pue, and Thomas J. Donlon.^[*]

David C. Larson filed a brief for the Appellate Defense Division, United States Navy-Marine Corps Appellate Review Activity, as amicus curiae.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This case presents the question whether the jurisdiction of a court-martial convened pursuant to the Uniform Code of Military Justice (U. C. M. J.) to try a member of the Armed Forces depends on the "service connection" of the offense charged. We hold that it does not, and overrule our earlier decision in O'Callahan v. Parker, 395 U. S. 258 (1969).

While petitioner Richard Solorio was on active duty in the Seventeenth Coast Guard District in Juneau, Alaska, he sexually abused two young daughters of fellow coastguardsmen. *437 Petitioner engaged in this abuse over a 2-year period until he was transferred by the Coast Guard to Governors Island, New York. Coast Guard authorities learned of the Alaska crimes only after petitioner's transfer, and investigation revealed that he had later committed similar sexual abuse offenses while stationed in New York. The Governors Island commander convened a general court-martial to try petitioner for crimes alleged to have occurred in Alaska and New York.

There is no "base" or "post" where Coast Guard personnel live and work in Juneau. Consequently, nearly all Coast Guard military personnel reside in the civilian community. Petitioner's Alaska offenses were committed in his privately owned home, and the fathers of the 10- to 12-year-old victims in Alaska were active duty members of the Coast Guard assigned to the same command as petitioner. Petitioner's New York offenses also involved daughters of fellow coast-guardsmen, but were committed in Government quarters on the Governors Island base.

After the general court-martial was convened in New York, petitioner moved to dismiss the charges for crimes committed in Alaska on the ground that the court lacked jurisdiction under this Court's decisions in O'Callahan v. Parker, supra, and Relford v. Commandant, U. S. Disciplinary Barracks, 401 U. S. 355 (1971).^[1] Ruling that the Alaska offenses were not sufficiently "service connected" to be tried in the military criminal justice system, the court-martial judge granted the motion to dismiss. The Government appealed the dismissal of the charges to the United *438 States Coast Guard Court of Military Review, which reversed the trial judge's order and reinstated the charges. 21 M. J. 512 (1985).

The United States Court of Military Appeals affirmed the Court of Military Review, concluding that the Alaska offenses were service connected within the meaning of O'Callahan and Relford. 21 M. J. 251 (1986). Stating that "not every off-base offense against a servicemember's dependent is service-connected," the court reasoned that "sex offenses against young children . . . have a continuing effect on the victims and their families and ultimately on the morale of any military unit or organization to which the family member is assigned." Id., at 256. In reaching its holding, the court also weighed a number of other factors, including: the interest of Alaska civilian officials in prosecuting petitioner; the hardship on the victims, who had moved from Alaska, that would result if they were called to testify both at a civilian trial in Alaska and at the military proceeding in New York; and the benefits to petitioner and the Coast Guard from trying the Alaska and New York offenses together.^[2] This Court subsequently granted certiorari pursuant to 28 U. S. C. § 1259(3) (1982 ed., Supp. III) to review the decision of the Court of Military Appeals. 476 U. S. 1181 (1986). We now affirm.

The Constitution grants to Congress the power "[t]o make Rules for the Government and Regulation of the land and naval Forces." U. S. Const., Art. I, § 8, cl. 14. Exercising this authority, Congress has empowered courts-martial to try servicemen for the crimes proscribed by the U. C. M. J., *439 Arts. 2, 17, 10 U. S. C. §§ 802, 817. The Alaska offenses with which petitioner was charged are each described in the U. C. M. J. See n. 1, supra. Thus it is not disputed that the court-martial convened in New York possessed the statutory authority to try petitioner on the Alaska child abuse specifications.

In an unbroken line of decisions from 1866 to 1960, this Court interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused. Gosa v. Mayden, 413 U. S. 665, 673 (1973) (plurality opinion); see Kinsella v. United States ex rel. Singleton, 361 U. S. 234, 240-241, 243 (1960); Reid v. Covert, 354 U. S. 1, 22-23 (1957) (plurality opinion); Grafton v. United States, 206 U. S. 333, 348 (1907); Johnson v. Sayre, 158 U. S. 109, 114 (1895); Smith v. Whitney, 116 U. S. 167, 183-185 (1886); Coleman v. Tennessee, 97 U. S. 509, 513-514 (1879); Ex parte Milligan, 4 Wall. 2, 123 (1866); cf. United States ex rel. Toth v. Quarles, 350 U. S. 11, 15 (1955); Kahn v. Anderson, 255 U. S. 1, 6-9 (1921); Givens v. Zerbst, 255 U. S. 11, 20-21 (1921). This view was premised on what the Court described as the "natural meaning" of Art. I, § 8, cl. 14, as well as the Fifth Amendment's exception for "cases arising in the land or naval forces." Reid v. Covert, supra, at 19; United States ex rel. Toth v. Quarles, supra, at 15. As explained in Kinsella v. Singleton, supra:

"The test for jurisdiction . . . is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term `land and naval Forces.' . . ." Id., at 240-241 (emphasis in original).

"Without contradiction, the materials . . . show that military jurisdiction has always been based on the `status' of the accused, rather than on the nature of the offense. To say that military jurisdiction `defies definition in terms of military "status" is to defy the unambiguous *440 language of Art. I, § 8, cl. 14, as well as the historical background thereof and the precedents with reference thereto." Id., at 243.

Implicit in the military status test was the principle that determinations concerning the scope of court-martial jurisdiction over offenses committed by servicemen was a matter reserved for Congress:

"[T]he rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress." Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion) (footnote omitted).

See also Coleman v. Tennessee, supra, at 514; Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 187 (1962).^[3]

In 1969, the Court in O'Callahan v. Parker departed from the military status test and announced the "new constitutional principle" that a military tribunal may not try a serviceman charged with a crime that has no service connection. See Gosa v. Mayden, supra, at 673. Applying this principle, the O'Callahan Court held that a serviceman's off-base sexual assault on a civilian with no connection with the military could not be tried by court-martial. On reexamination of *441 O'Callahan, we have decided that the service connection test announced in that decision should be abandoned.

The constitutional grant of power to Congress to regulate the Armed Forces, Art. I, § 8, cl. 14, appears in the same section as do the provisions granting Congress authority, inter alia, to regulate commerce among the several States, to coin money, and to declare war. On its face there is no indication that the grant of power in Clause 14 was any less plenary than the grants of other authority to Congress in the same section. Whatever doubts there might be about the extent of Congress' power under Clause 14 to make rules for the "Government and Regulation of the land and naval Forces," that power surely embraces the authority to regulate the conduct of persons who are actually members of the Armed Services. As noted by Justice Harlan in his O'Callahan dissent, there is no evidence in the debates over the adoption of the Constitution that the Framers intended the language of Clause 14 to be accorded anything other than its plain meaning.^[4] Alexander Hamilton described these powers of Congress "essential to the common defense" as follows:

"These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. . . .

.....

". . . Are fleets and armies and revenues necessary for this purpose [common safety]? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them." The Federalist No. 23, pp. 152-154 (E. Bourne ed. 1947).

*442 The O'Callahan Court's historical foundation for its holding rests on the view that "[b]oth in England prior to the American Revolution and in our own national history military trial of soldiers committing civilian offenses has been viewed with suspicion." 395 U. S., at 268. According to the Court, the historical evidence demonstrates that, during the late 17th and 18th centuries in England as well as the early years of this country, courts-martial did not have authority to try soldiers for civilian offenses. The Court began with a review of the 17th-century struggle in England between Parliament and the Crown over control of the scope of court-martial jurisdiction. As stated by the Court, this conflict was resolved when William and Mary accepted the Bill of Rights in 1689, which granted Parliament exclusive authority to define the jurisdiction of military tribunals. See ibid. The Court correctly observed that Parliament, wary of abuses of military power, exercised its new authority sparingly.^[5] Indeed, a statute enacted by Parliament in 1689 provided for court-martial only for the crimes of sedition, mutiny, and desertion, and exempted members of militia from its scope. Mutiny Act of 1689, 1 Wm. & Mary, ch. 5.

The O'Callahan Court's representation of English history following the Mutiny Act of 1689, however, is less than accurate. In particular, the Court posited that "[i]t was . . . the rule in Britain at the time of the American Revolution that a soldier could not be tried for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court." 395 U. S., at 269. In making this statement, the Court was apparently referring to Section *443 XI, Article I, of the British Articles of War in effect at the time of the Revolution.^[6] This Article provided:

"Whenever any Officer or Soldier shall be accused of a Capital Crime, or of having used Violence, or committed any Offence against the Persons or Property of Our Subjects,. . . the Commanding Officer, and Officers of every Regiment, Troop, or Party to which the . . . accused shall belong, are hereby required, upon Application duly made by, or in behalf of the Party or Parties injured, to use . . . utmost Endeavors to deliver over such accused. . . to the Civil Magistrate." British Articles of War of 1774, reprinted in G. Davis, Military Law of the United States 581, 589 (3d rev. ed. 1915).

This provision, however, is not the sole statement in the Articles bearing on court-martial jurisdiction over civilian offenses. Specifically, Section XIV, Article XVI, provided that all officers and soldiers who

"shall maliciously destroy any Property whatsoever belonging to any of Our Subjects, unless by Order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of offending herein shall (besides such Penalties as they are liable to by law) be punished according to the Nature and Degree of the Offence, by the Judgment of a Regimental or General Court Martial." Id., at 593.

Under this provision, military tribunals had jurisdiction over offenses punishable under civil law. Nelson & Westbrook *444 11. Accordingly, the O'Callahan Court erred in suggesting that, at the time of the American Revolution, military tribunals in England were available "only where ordinary civil courts were unavailable." 395 U. S., at 269, and n. 11.

The history of early American practice furnishes even less support to O'Callahan's historical thesis. The American Articles of War of 1776, which were based on the British Articles, contained a provision similar to Section XI, Article I, of the British Articles, requiring commanding officers to deliver over to civil magistrates any officer or soldier accused of "a capital crime, . . . having used violence, or . . . any offence against the persons or property of the good people of any of the United American States" upon application by or on behalf of an injured party. American Articles of War of 1776, Section X, Article I, reprinted in 2 Winthrop 1494. It has been postulated that American courts-martial had jurisdiction over the crimes described in this provision where no application for a civilian trial was made by or on behalf of the injured civilian.^[7] Indeed, American military records reflect trials by court-martial during the late 18th century for offenses against civilians and punishable under civil law, such as theft and assault.^[8]

The authority to try soldiers for civilian crimes may be found in the much-disputed "general article" of the 1776 Articles of War, which allowed court-martial jurisdiction over "[a]ll crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline." American Articles of War of 1776, Section XVIII, Article 5, reprinted in 2 Winthrop 1503. *445 Some authorities, such as those cited by the O'Callahan Court, interpreted this language as limiting court-martial jurisdiction to crimes that had a direct impact on military discipline.^[9] Several others, however, have interpreted the language as encompassing all noncapital crimes proscribed by the civil law.^[10] Even W. Winthrop, the authority relied on most extensively by the majority in O'Callahan, recognized that military authorities read the general article to include crimes "committed upon or against civilians . . . at or near a military camp or post." 2 Winthrop 1124, 1126, n. 1.

We think the history of court-martial jurisdiction in England and in this country during the 17th and 18th centuries is far too ambiguous to justify the restriction on the plain language of Clause 14 which O'Callahan imported into it.^[11]*446 There is no doubt that the English practice during this period shows a strong desire in that country to transfer from the Crown to Parliament the control of the scope of court-martial jurisdiction. And it is equally true that Parliament was chary in granting jurisdiction to courts-martial, although not as chary as the O'Callahan opinion suggests. But reading Clause 14 consistently with its plain language does not disserve that concern; Congress, and not the Executive, was given the authority to make rules for the regulation of the Armed Forces.

The O'Callahan Court cryptically stated: "The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes." 395 U. S., at 268. But such disapproval in England at the time of William and Mary hardly proves that the Framers of the Constitution, contrary to the plenary language in which they conferred the power on Congress, meant to freeze court-martial usage at a particular time in such a way that Congress might not change it. The unqualified language of Clause 14 suggests that whatever these concerns, they were met by vesting in Congress, rather than the Executive, authority to make rules for the government of the military.^[12]

*447 Given the dearth of historical support for the O'Callahan holding, there is overwhelming force to Justice Harlan's reasoning that the plain language of the Constitution, as interpreted by numerous decisions of this Court preceding O'Callahan, should be controlling on the subject of court-martial jurisdiction. 395 U. S., at 275-278 (dissenting); cf. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 696 (1978) ("[W]e ought not `disregard the implications of an exercise of judicial authority assumed to be proper for [100] years' "), quoting Brown Shoe Co. v. United States, 370 U. S. 294, 307 (1962).

Decisions of this Court after O'Callahan have also emphasized that Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. As we recently reiterated, "[j]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.' " Goldman v. Weinberger, 475 U. S. 503, 508 (1986), quoting Rostker v. Goldberg, 453 U. S. 57, 70 (1981). *448 Since O'Callahan, we have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated. See, e. g., Goldman v. Weinberger, supra, at 509-510 (free exercise of religion); Chappell v. Wallace, 462 U. S. 296, 300-305 (1983) (racial discrimination); Rostker v. Goldberg, supra, at 64-66, 70-71 (sex discrimination); Brown v. Glines, 444 U. S. 348, 357, 360 (1980) (free expression); Middendorf v. Henry, 425 U. S. 25, 43 (1976) (right to counsel in summary court-martial proceedings); Schlesinger v. Councilman, 420 U. S. 738, 753 (1975) (availability of injunctive relief from an impending court-martial); Parker v. Levy, 417 U. S. 733, 756 (1974) (due process rights and freedom of expression).

The notion that civil courts are "ill equipped" to establish policies regarding matters of military concern is substantiated by experience under the service connection approach. Chappell v. Wallace, supra, at 305. In his O'Callahan dissent, Justice Harlan forecasted that "the infinite permutations of possibly relevant factors are bound to create confusion and proliferate litigation over the [court-martial] jurisdiction issue." 395 U. S., at 284. In fact, within two years after O'Callahan, this Court found it necessary to expound on the meaning of the decision, enumerating a myriad of factors for courts to weigh in determining whether an offense is service connected. Relford v. Commandant, U. S. Disciplinary Barracks, 401 U. S. 355 (1971). Yet the service connection approach, even as elucidated in Relford, has proved confusing and difficult for military courts to apply.^[13]

*449 Since O'Callahan and Relford, military courts have identified numerous categories of offenses requiring specialized analysis of the service connection requirement. For example, the courts have highlighted subtle distinctions among offenses committed on a military base, offenses committed off-base, offenses arising from events occurring both on and off a base, and offenses committed on or near the boundaries of a base.^[14] Much time and energy has also been expended in litigation over other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile.^[15] The confusion created by the complexity of the service connection requirement, however, is perhaps best illustrated in the area of off-base drug offenses.^[16] Soon after O'Callahan, the Court of Military Appeals held that drug offenses were of such "special military significance" that their trial by court-martial was unaffected by the decision. United States v. Beeker, 18 U. S. C. M. A. 563, 565, 40 C. M. R. 275, 277 (1969). Nevertheless, the court has changed its position on *450 the issue no less than two times since Beeker, each time basing its decision on O'Callahan and Relford.^[17]

When considered together with the doubtful foundations of O'Callahan, the confusion wrought by the decision leads us to conclude that we should read Clause 14 in accord with the plain meaning of its language as we did in the many years before O'Callahan was decided. That case's novel approach to court-martial jurisdiction must bow "to the lessons of experience and the force of better reasoning." Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-408 (1932) (Brandeis, J., dissenting). We therefore hold that the requirements of the Constitution are not violated where, as here, a court-martial *451 is convened to try a serviceman who was a member of the Armed Services at the time of the offense charged.^[18] The judgment of the Court of Military Appeals is

Affirmed.

JUSTICE STEVENS, concurring in the judgment.

Today's unnecessary overruling of precedent is most unwise. The opinion of the United States Court of Military Appeals demonstrates that petitioner's offenses were sufficiently "service connected" to confer jurisdiction on the military tribunal. Unless this Court disagrees with that determination — and I would be most surprised to be told that it does — it has no business reaching out to reexamine the decisions in O'Callahan v. Parker, 395 U. S. 258 (1969), and Relford v. Commandant, U. S. Disciplinary Barracks, 401 U. S. 355 (1971). While there might be some dispute about the exact standard to be applied in deciding whether to overrule prior decisions, I had thought that we all could agree that such drastic action is only appropriate when essential to *452 the disposition of a case or controversy before the Court.^[*] The fact that any five Members of the Court have the power to reconsider settled precedents at random, does not make that practice legitimate.

For the reasons stated by the Court of Military Appeals, I agree that its judgment should be affirmed.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, and with whom JUSTICE BLACKMUN joins in all but the last paragraph, dissenting.

Less than 20 years ago, this Court held in O'Callahan v. Parker, 395 U. S. 258 (1969), that, to be subject to trial by court-martial, a criminal offense charged against a member of the Armed Forces had to be "service connected," lest the phrase "cases arising in the land or naval forces" in the Fifth Amendment "be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers." Id., at 273. Today the Court overrules O'Callahan. In doing so, it disregards constitutional language and principles of stare decisis in its singleminded determination to subject members of our Armed Forces to the unrestrained control of the military in the area of criminal justice. I dissent.

I

The majority begins by assuming that the limitation on court-martial jurisdiction enunciated in O'Callahan was based on the power of Congress, contained in Art. I, § 8, cl. 14, "[t]o make Rules for the Government and Regulation of the land and naval Forces." It then rejects this asserted limitation of congressional power on the ground that the Framers intended to give Congress plenary authority over the *453 government of the military. But the Court in O'Callahan did not simply address whether Art. I, § 8, cl. 14, granted Congress the authority to create court-martial jurisdiction over all crimes committed by members of the Armed Forces. Congress' Article I power to regulate the Armed Forces is limited by the Fifth Amendment right to indictment or presentment by a grand jury and the Sixth Amendment right to trial by jury.^[1] "[T]he constitutional grant of power to Congress to regulate the armed forces," this Court has previously stated, "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." United States ex rel. Toth v. Quarles, 350 U. S. 11, 21-22 (1955). The majority simply disregards the limitations the Bill of Rights imposes on the reach of Art. I, § 8, cl. 14.

The rights to grand jury process and to trial by jury are, of course, of restricted application in military cases. The Fifth Amendment excepts from the grand jury requirement "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,"^[2] and the *454 Court has held this exception applicable to the Sixth Amendment right to trial by jury as well. Ex parte Milligan, 4 Wall. 2, 123 (1867). But the text of the exception is inconsistent with the majority's conclusion that the only relevant factor in determining whether a court-martial has jurisdiction over a case is the status of the defendant as a member of the Armed Services.^[3]

The Fifth Amendment's exception covers only "cases arising in the land and naval forces" (emphasis added). It makes no reference to the status of the individual committing the crime. Had that been the Framers' intent, it would have been easy to have said so, given that the grand jury provision of the Amendment, which states that "[n]o Person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," speaks not in terms of "crimes" or "cases," but of individual defendants. Nonetheless, the exception contained in the Fifth Amendment is expressed — and applies by its terms — only to cases arising in the Armed Forces. O'Callahan addressed not whether Art. I, § 8, cl. 14, empowered Congress to create court-martial jurisdiction over all crimes committed by service members, but rather whether Congress, in exercising that power, had encroached upon the rights of members of Armed Forces whose cases did not "arise in" the Armed Forces. This is clear from the Court's statement of its holding in O'Callahan:

"We have concluded that the crime to be under military jurisdiction must be service connected, lest `cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every *455 member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers." 395 U. S., at 272-273 (footnote omitted).^[4]

*456 The protections afforded individuals by the Fifth and Sixth Amendments are central to our constitutional scheme of justice. The right to trial by jury, in particular, "ranks very high in our catalogue of constitutional safeguards." United States ex rel. Toth v. Quarles, 350 U. S., at 16. These protections should not be lightly abrogated. Consequently, the exception in the Fifth Amendment for cases arising in the Armed Forces must be strictly construed. This was the basis for the Court's conclusion, in Toth, that the power to authorize trial by court-martial should be limited to " `the least possible power adequate to the end proposed.' " Id., at 23 (emphasis omitted), quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821).

The historical evidence considered by the Court in O'Callahan is therefore relevant, not to what the Framers intended to include in the scope of the congressional power to regulate the Armed Forces in Art. I, § 8, cl. 14, but to what the Framers, wary of military jurisdiction and familiar with strong restrictions on the scope of that jurisdiction, considered "cases arising in the armed forces." Even assuming that they intended to assign control over the scope of the Article I power to the Legislature, this does not imply that the meaning of the Fifth Amendment's "arising in" exception can be interpreted without reference to the practices of that time.

In that respect it is significant that the British political and legal writing of the 17th and 18th centuries demonstrates a longstanding suspicion of broad court-martial jurisdiction. This suspicion was well known in colonial America, and was based on familiar history.^[5] British writers and legislators *457 took a narrow view of the appropriate scope of court-martial jurisdiction, which manifested itself in a very limited grant of authority to try offenses by court-martial during the period of which the Framers would have been most acutely aware. See, e. g., M. Hale, The History of the Common Law of England 42-43 (6th ed. 1820). Not only was that jurisdiction narrow, it was expressly limited to cases having some connection with the military. The test was not one of status, but one of military relationship. See S. Adye, A Treatise on Courts Martial 60 (1786) ("The crimes that are cognizable by a court martial, as repugnant to military discipline, are pointed out by the mutiny act and articles of war . . . and as to other crimes which officers and soldiers being guilty of, are to be tried for by the ordinary course of law, in like manner with other subjects"); see also 1 C. Clode, Military Forces of the Crown; Their Administration and Government 158 *458 (1869) ("It has been a subject of controversy to distinguish the offences that are purely Military (and therefore properly within the cognizance of a Court-martial), from others that are Civil or Political (and therefore properly within the cognizance of the civil tribunals of the community)"); Grant v. Gould, 2 H. Bl. 69, 99-100, 126 Eng. Rep. 434, 450 (C. P. 1792) ("In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace they are tried by the common law courts. . . . The object of the mutiny act . . . is to create a court invested with authority to try those who are a part of the army . . . and the object of the trial is limited to breaches of military duty") (emphasis omitted). The reach of military law in Britain at the time of the Revolution thus permitted courts-martial only for offenses committed by members of the Armed Forces that had some connection with their military service.

The majority disputes the O'Callahan Court's suggestion that the British Articles of War forbade the trial of civil offenses by court-martial. The Court points to Section XIV, Article XVI, of the British Articles of War of 1774, reprinted in G. Davis, Military Law of the United States 581, 593 (3d rev. ed. 1915), which provided:

"All Officers and Soldiers are to behave themselves orderly in Quarters, and on their March; and whosoever shall commit any Waste or Spoil either in Walks of Trees, Parks, Warrens, Fish Ponds, Houses or Gardens, Corn Fields, Inclosures or Meadows, or shall maliciously destroy any Property whatsoever belonging to any of Our Subjects, unless by order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of