United States v. Spelar/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring.

In some aspects, no doubt, every statute presents a unique problem for interpretation. But the presupppositions of the judicial process in construing legislation should be neither capricious nor ad hoc. While normally, therefore, it is not very fruitful to express disagreement either with the rendering of a particular statute or the mode by which that is reached, where this involves implications touching the very process of judicial construction silence may carry significance beyond the immediate case.

I agree that the Federal Tort Claims Act does not afford a right of action for the negligent conduct of the Government, through its employees, at one of the bases held by the United States under the longterm arrangements made with Great Britain. But the road traveled by the Court's opinion in reaching this result does not seem to me the way to get there.

The Court's opinion finds the phrase 'foreign country,' in that Act's restriction against 'claims arising in a foreign country,' to be as compelling in excluding the Newfoundland air base, under the kind of control that the United States exercises at these bases, as less than a year ago it found the term 'possessions' in the Fair Labor Standars Act to be compelling in including these bases. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140. To assume that terms like 'foreign country' and 'possessions' are self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence at its best. These terms do not have fixed and inclusive meanings, as is true of mathematical and other scientific terms. Both 'possessions' an 'foreign country' have penumbral meanings, which is not true, for instance, of the verbal designations for weights and measures. It is this precision of content which differentiates scientific from most political, legislative and legal language.

A 'foreign country' in which the United States has no territorial control does not bear the same relation to the United States as a 'foreign country' in which the United States does have the territorial control that it has in the air base in Newfoundland. In the entangling relationships between such nations as Great Britian and this country, it is not compelling that 'foreign country' means today what it may have meant in the days of Chief Justice Marshall, or even in those of Mr. Justice Brown. The very concept of 'sovereignty' is in a state of more or less solution these days. To find a single and undeviating content for 'foreign country' necessarily excluding these bases, while 'POSSESSIONS' OF THE UNITED STATES IS To be deemed as necessarily incLuding them, despite the momentum of historic meaning and experience leading to a contrary significance of 'possessions,' is to give the appearance of logically compulsive force to decisions. It fails to recognize the scope of supple words that are the raw materials of legislation and adjudication and is unmindful of those considerations of policy which underlie, consciously or unconsciously, seemingly variant decisions. When so many able judges can so misconceive the implications of our decision in Vermilya-Brown Co. v. Connell, supra, as they have been found to misconceive them, the source of difficulty cannot be wholly with these able lawyer court judges.

The considerations that led me to join in the dissent in Vermilya-Brown Co. v. Connell, supra, lead me to concur with the Court's construction of the Tort Claims Act in this case.