Felix Frankfurter

“ Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are unknown, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unknown to them and unsuited to their needs. ”

“ United States extends, or if Congress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that, no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work injustice and provoke disturbance, rather than to aid the orderly administration of justice. ”

“ What conduct should be punished and what constitutes a capital case are matters for congressional discretion, always subject, of course, to any specific restrictions of the Constitution. These cases involve the validity of procedural conditions for determining the commission of a crime, in fact, punishable by death. The taking of life is irrevocable. It is in capital cases especially [p46] that the balance of conflicting interests must be weighted most heavily in favor of the procedural safeguards of the Bill of Rights. ”

“ The Declaration of Independence recognised the European law of nations, as practised among Christian nations, to be that by which they considered themselves bound, and of which they claimed the rights. This system is founded upon the principle that the state of nature between men and between nations is a state of peace. ”

“ If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. ”

“ The materials it has submitted seem too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution, for constitutional adjudication. What has been urged on us falls far too short of proving a well established practice — to be deemed to be infused into the Constitution — of court-martial jurisdiction, certainly not in capital cases, over such civilians in time of peace. [p65] ”

“ Governmental action abroad is performed under both the authority and the restrictions of the Constitution — for example, proceedings before American military tribunals, whether in Great Britain or in the United States, are subject to the applicable restrictions of the Constitution. ”

“ It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation, and that an expression in an opinion yields later to the impact of facts unforeseen. ”

“ But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries, and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by decrees and regulations which shall have the force of law, supply such defects and deficiencies. ”

“ When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. ”

“ It is true that the occasion for consular tribunals in Japan may hereafter be less than at present, as every year that country progresses in civilization and in the assimilation of its system of judicial procedure [p58] to that of Christian countries, as well as in the improvement of its penal statutes; but the system of consular tribunals . . . is of the highest importance, and their establishment in other than Christian countries, where our people may desire to go in pursuit of commerce, will often be essential for the protection of their persons and property. ”

“ American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. ”

“ The Government, apparently recognizing the constitutional basis for the decision in Ross, has, on rehearing, sought to show that civilians in general and civilian dependents in particular have been subject to military order and discipline ever since the colonial period. ”

“ We really are concerned about precedents chiefly when their facts differ somewhat from the facts in the case at bar. Then there is a gulf or hiatus that has to be bridged by a concern for principle and a concern for practical results and practical wisdom. ”

“ The Court sustained its action on the [p50] authority of the cases dealing with the power of Congress to "make all needful Rules and Regulations" for the Territories, reinforced by In re Ross, 140 U.S. 453, in which this Court, in 1891, sustained the criminal jurisdiction of a consular court in Japan. [5] These authorities grew out of, and related to, specific situations very different from those now here. They do not control or even embarrass the problem before us.
Legal doctrines are not self-generated abstract categories. They do not fall from the sky ”

“ Under the Treaty of 1857, 11 Stat. 723, such power was given, and later treaties, which opened up further Japanese cities for trade and residence by United States citizens, retained these rights. The treaty of 1894, effective on July 17, 1899, however, ended these extraterritorial rights, and Japan, even though a "non-Christian" nation, came to occupy the same status as Christian nations. 29 Stat. 848. The exercise of criminal jurisdiction by consuls over United States citizens was also provided for, at one time or another, in treaties with Borneo, 10 Stat. ”