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technicalities manipulated
ad hoc,
the latter are logical, clear, and
solidly based on the Constitution. Justice Murphy's dissent, which in
my opinion may be ranked with the great liberal dissenting opinions of
Harlan, Brandeis and Holmes, rests squarely on the issue of human, as
against national, rights. "No exception," he writes, apropos the Fifth
Amendment, "is made as to those who are accused of war crimes
or to those who possess the status of an enemy belligerent. Indeed, such
an exception would be contrary to the whole philosophy of human
rights which makes the Constitution the great living document that it is.
The immutable rights of the individual, including those secured by the
due process clause of the Fifth Amendment, belong not alone to the
members of those nations that excel on the battlefield or that sub–
scribe to the democratic ideology. They belong to every person in the
world, victor or vanquished, whatever may be his race, color or be–
liefs." Justice Rutledge appeals primarily to our legal tradition : "More
is at stake than General Yamashita's fate. There could be no possible
sympathy for him if he is guilty of the atrocities for which his death
is sought. But there can be and should be justice administered according
to law.... This long-held attachment marks the great divide between
our enemies and ourselves. Theirs was a philosophy of universal force.
Ours is one of universal law, albeit imperfectly made flesh of our
system and so dwelling among us." With a severe logic and a historical
richness of allusion which admirably complements Murphy's more
general reasoning, Rutledge shows that Yamashita was unfairly tried
by any recognized standard: the Fifth Amendment, the Geneva Con–
vention of 1929, and our own Articles of War. He concludes with a
quotation from Tom Paine: "He that would make his own liberty
secure must guard even his enemy from oppression; for if he violates
this duty, he establishes a precedent that will reach to himself."
Yamashita was hung
a
La Russe:
his crime was in the realm of
being
not of
doing,
his guilt was not that he committed a crime but
that he existed in the wrong political category. His execution violated
what Mr. Reel calls "that touchstone of our criminal law: the element
of personal culpability." The recent deaths of both Justices Murphy and
Rutledge, and their replacement by judges much their inferior both as
to ability and conscience, these are important, and ominous, events in
the history of the republic.
In conclusion, briefly, two disparate points: (1) the history of Mr.
Reel's book; (2) the light thrown by the Yamashita case on American
racial prejudice.
(1) Mr. Reel's book, as I have noted, is extremely readable: its
