tried by the courts of the country in which the offense is committed. Foreign courts have exclusive jurisdiction under the principles of international law and many nations enjoy concurrent jurisdiction with the American military authorities pursuant to Article VII of the Agreement Regarding Status of Forces of Parties to the North Atlantic Treaty. Where the American military authorities do have jurisdiction, it is only by mutual agreement with the foreign sovereign concerned and pursuant to carefully drawn agreements conditioned on trial by the American military authorities. Typical of these agreements was the one concluded between the United States and Japan on February 28, 1952, and in force at the time one of these cases arose. Under this and like agreements, the jurisdiction so ceded to the United States military courts will surely be withdrawn if the services are impotent to exercise it. It is clear that trial before an American court-martial in which the fundamentals of due process are observed is preferable to leaving American servicemen and their dependents to the widely varying standards of justice in foreign courts throughout the world. Under these circumstances it is untenable to say that Congress could have exercised a lesser power adequate to the end proposed.

II.

My brothers who are concurring in the result seem to find some comfort in that for the present they void an Act of Congress only as to capital cases. I find no distinction in the Constitution between capital and other cases. In fact, at argument all parties admitted there could be no valid difference. My brothers are careful not to say that they would uphold the Act as to offenses less

4 NATO Status of Forces Agreement, T. I. A. S. 2846 (signed in London on July 19, 1951), 4 U. S. Treaties 1792.

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than capital. They unfortunately leave that decision for another day. This is disastrous to proper judicial administration as well as to law enforcement. The Congress and the Executive Department are entitled to know whether a court-martial may be constitutionally utilized to try an offense less than capital. If so, then all that is necessary is to eliminate capital punishment insofar as Article 2 (11) offenses are concerned. I deeply regret that the former minority does not, now that it has become the majority, perform the high duty that circumstance requires. Both the Congress and the Executive are left only to conjecture as to whether they should "sack' Article 2 (11) and require all dependents to return and remain within this country or simply eliminate capital punishment from all offenses under the Article. The morale of our troops may prevent the former and certainly the abstention of this Court prohibits the latter. All that remains is for the dependents of our soldiers to be prosecuted in foreign courts, an unhappy prospect not only for them but for all of us.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 13652

POWER AUTHORITY OF THE STATE OF NEW YORK,

PETITIONER

V.

FEDERAL POWER COMMISSION, RESPONDENT

ONEIDA MADISON ELECTRIC COOPERATIVE, et al., (Rural Electric Distribution Cooperatives), PEOPLE OF THE STATE OF NEW YORK, ROCHESTER GAS AND ELECTRIC CORPORATION, AMERICAN PUBLIC POWER ASSOCIATION, and the CITY OF JAMESTOWN, NEW YORK, INTERVENORS

On Petition to review an order of the

Federal Power Commission

Decided June 20, 1957

Mr. Philip C Jessup, with whom Mr. Thomas F. Moore, Jr., was on the brief, for petitioner.

Mr. Willard W. Gatchell, General Counsel, Federal Power Commission, with whom Messrs. John C. Mason, Deputy General Counsel, Federal Power Commission, and Joseph B. Hobbs, Attorney, Federal Power Commission, were on the brief, for respondent. Mr. Howard E. Wahrenbrock, Assistant General Counsel, Federal Power Commission, also entered an appearance for respondent.

Mr. John Davison, a member of the bar of the Court of Appeals of New York, pro hac vice, by special leave

175

of Court, for intervenor, People of the State of New York. Mr. Henry H. Fowler also entered an appearance for intervenor, People of the State of New York.

Mr. Lawrence Potamkin was on the brief for intervenor, Oneida Madison Electric Cooperative, Inc., and certain other intervenors.

Mr. T. Carl Nixon was on the brief for intervenor, Rochester Gas and Electric Corporation.

Messrs. Northcutt Ely, Robert L. McCarty, C. 'Emerson Duncan II, and Charles F. Wheatley, Jr., were on the brief for intervenors, American Public Power Association, and the City of Jamestown, New York.

Before EDGERTON, Chief Judge, and BAZELON and BASTIAN, Circuit Judges.

BAZELON, Circuit Judge: Petitioner, an agency of the State of New York, applied to the Federal Power Commission for a license to construct a power project to utilize all of the Niagara River water which, under the 1950 treaty between the United States and Canada,1 is available for American exploitation.

In consenting to the treaty, the Senate had attached the following "reservation":

The United States on its part expressly reserves the right to provide by Act of Congress for redevelopment, for the public use and benefit, of the United States share of the waters of the Niagara River made available by the provisions of the treaty, and no project for redevelopment of the United States share of such waters shall be undertaken until it be specifically authorized by Act of Congress. [1 U.S.T. 694, 699.]

The Commission dismissed petitioner's application on November 30, 1956, in an opinion and order declaring:

1 Treaty Between the United States and Canada Concerning Uses of the Waters of the Niagara River, Feb. 27, 1950, 1 U.S.T. 694.

In the absence of the treaty reservation we would act on the Power Authority's application in accordance with the provisions of the Federal Power Act. But if we are to accept the injunction of the reservation as it stands, we would have no authority to consider the application of the Power Authority on its merits.

Since the reservation here was intended by the Senate as part of the treaty and was intended to prevent our jurisdiction attaching to the water made available by the treaty, it is entirely authoritative with us as the Supreme Law of the Land under Article VI of the Constitution.

We are without authority to issue a license for the redevelopment (Project No. 2216) proposed by the Power Authority of the State of New York.

An application for rehearing was denied on January 2, 1957, and petitioner brought this review proceeding.

The parties agree that, if the reservation to the 1950 treaty is not "Law of the Land," the order should be set aside. Since the reservation did not have the concurrence of the House of Representatives, it is not "Law of the Land" by way of legislation.2 The question is whether it became "Law of the Land" as part of the treaty.

The Commission argues that the reservation is an effective part of the treaty because: (1) it was a condition of the Senate's consent to the ratification of the treaty; (2) the condition was sanctioned by the President, was "accepted" by Canada, and was included in the exchange of ratifications; and (3) it "thus became a part of the Treaty." Simple as this argument seems, we cannot agree with it.

2 New York Indians v. United States, 170 U.S. 1, 23 (1898); Fourteen Diamond Rings v. United States, 183 U.S. 176, 184 (1901), concurring opinion of Mr. Justice Brown.