apply abroad was In re Ross, 140 U. S. 453. The Ross case is one of those cases that cannot be understood except in its peculiar setting; even then, it seems highly unlikely that a similar result would be reached today. Ross was serving as a seaman on an American ship in Japanese waters. He killed a ship's officer, was seized and tried before a consular "court" in Japan. At that time, statutes authorized American consuls to try American citizens charged with committing crimes in Japan and certain other "non-Christian" countries." These statutes provided that the laws of the United States were to govern the trial except:

14

". . . 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." 15 The consular power approved in the Ross case was about as extreme and absolute as that of the potentates of the "non-Christian" countries to which the statutes applied. Under these statutes consuls could and did make the criminal laws, initiate charges, arrest alleged offenders, try them, and after conviction take away their liberty or their life-sometimes at the American consulate. Such a blending of executive, legislative, and judicial powers in one person or even in one branch of the government is ordinarily regarded as the very acme

14 Rev. Stat. §§ 4083-4130 (1878).

15 Id., § 4086.

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of absolutism.16 Nevertheless, the Court sustained Ross' conviction by the consul. It stated that constitutional protections applied "only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad." 17 Despite the fact that it upheld Ross' conviction under United States laws passed pursuant to asserted constitutional authority, the Court went on to make a sweeping declaration that "[t]he Constitution can have no operation in another country.'

" 18

The Ross approach that the Constitution has no applicability abroad has long since been directly repudiated by numerous cases.19 That approach is obviously erroneous if the United States Government, which has no power except that granted by the Constitution, can and does try citizens for crimes committed abroad.20 Thus the Ross case rested, at least in substantial part, on a funda

16 Secretary of State Blaine referred to these consular powers as "greater than ever the Roman law conferred on the pro-consuls of the empire, to an officer who, under the terms of the commitment of this astounding trust, is practically irresponsible." S. Exec. Doc. No. 21, 47th Cong., 1st Sess. 4. Seward, at a time when he was Consul-General, declared: "[t]here is no reason, excepting the absence of appropriate legislation, why American citizens in China, charged with grave offenses, should not have the privilege of trial by jury as elsewhere throughout the world where the institution of civilization prevails." Id., at 7.

17 In re Ross, supra, at 464.

18 Ibid.

19 See cases cited in note 10, supra.

20 See, e. g., Kawakita v. United States, 343 U. S. 717; United States v. Flores, 289 U. S. 137; United States v. Bowman, 260 U. S. 94; Chandler v. United States, 171 F. 2d 921, cert. denied, 336 U. S. 918.

mental misconception and the most that can be said in support of the result reached there is that the consular court jurisdiction had a long history antedating the adoption of the Constitution. The Congress has recently buried the consular system of trying Americans.21 We are not willing to jeopardize the lives and liberties of Americans by disinterring it. At best, the Ross case should be left as a relic from a different era.

The Court's opinion last Term also relied on the "Insular Cases" to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable to the trial of Mrs. Smith and Mrs. Covert.22 We believe that reliance was misplaced. The "Insular Cases," which arose at the turn of the century, involved territories which had only recently been conquered or acquired by the United States. These territories, governed and regulated by Congress under Art. IV, § 3,23 had entirely different cultures and customs from those of this country. This Court, although closely divided,2* ruled that certain

21 70 Stat. 773.

22 Downes v. Bidwell, 182 U. S. 244; Hawaii v. Mankichi, 190 U. S. 197; Dorr v. United States, 195 U. S. 138; Balzac v. Porto Rico, 258 U. S. 298.

23 "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;

24 Downes v. Bidwell, 182 U. S. 244, the first of the "Insular Cases" was decided over vigorous dissents from Mr. Chief Justice Fuller, joined by Justices Harlan, Brewer, and Peckham, and from Mr. Justice Harlan separately. The four dissenters took the position that all the restraints of the Bill of Rights and of other parts of the Constitution were applicable to the United States Government wherever it acted. This was the position which the Court had consistently followed prior to the "Insular Cases." See, e. g., Thompson v. Utah, 170 U. S. 343; Calian v. Wilson, 127 U. S. 540.

constitutional safeguards were not applicable to these territories since they had not been "expressly or impliedly incorporated" into the Union by Congress. While conceding that "fundamental" constitutional rights applied everywhere," the majority found that it would disrupt long-established practices and would be inexpedient to require a jury trial after an indictment by a grand jury in the insular possessions.26

The "Insular Cases" can be distinguished from the present cases in that they involved the power of Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. None of these cases had anything to do with military trials and they cannot properly be used as vehicles to support an extension of military jurisdiction to civilians. Moreover, it is our judgment that neither the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government. If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it

25 As to the great significance of the right to trial by jury see text at note 13, supra, and the authorities referred to in that note. 26 Later the Court held that once a territory become "incorporated" all of the constitutional protections became "applicable." See, e. g., Rassmussen v. United States, 197 U. S. 516, 520-521.

prescribes." But we have no authority, or inclination, to read exceptions into it which are not there.28

II.

At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents.29 For its part, the United States

27 It may be said that it is difficult to amend the Constitution. To some extent that is true. Obviously the Founders wanted to guard. against hasty and ill-considered changes in the basic charter of government. But if the necessity for alteration becomes pressing, or if the public demand becomes strong enough, the Constitution can and has been promptly amended. The Eleventh Amendment was ratified within less than two years after the decision in Chisholm v. Georgia, 2 Dall. 419. And more recently the Twenty-First Amendment, repealing nationwide prohibition, became part of the Constitution within ten months after congressional action. On the average it has taken the States less than two years to ratify each of the twenty-two amendments which have been made to the Constitution. 28 In 1881, Senator Carpenter, while attacking the consular courts 'as a disgrace to this nation" because they deprived citizens of the "fundamental and essential" rights to indictment and trial by jury, declared:

"If we are too mean as a nation to pay the expense of observing the Constitution in China, then let us give up our concessions in China and come back to as much of the Constitution as we can afford to carry out." 11 Cong. Rec. 410.

29 Executive Agreement of July 27, 1942, 57 Stat. 1193. The arrangement now in effect in Great Britain and the other North Atlantic Treaty Organization nations, as well as in Japan, is the NATO Status of Forces Agreement, 4 U. S. Treaties and Other International Agreements 1792, T. I. A. S. 2846, which by its terms gives the foreign nation primary jurisdiction to try dependents accompanying American servicemen for offenses which are violations of the law of both the foreign nation and the United States. Art. VII, §§ 1 (b), 3 (a). The foreign nation has exclusive criminal jurisdiction over