(concurring):
While in a few instances the principal opinion uses somewhat broader language than I would have selected, I ■concur generally in its terms, and warmly approve the result it reaches. Specifically, I agree with Judge Lati-mer that there was no error in the use of the deposition in this case.
II
The Chief Judge has assumed the power to hold an act of Congress unconstitutional — at least in part. I say he has “assumed” this power, because he has not undertaken to demonstrate that we possess it. Perhaps he believes the existence of such authority in the judges of this Court to be so evident ■as to dispense with exposition. For my part, however, I do not believe the matter to be quite so clean-cut as he. In any event, I find no necessity to determine this delicate and difficult question here and now, for I perceive no fatal infirmity in the portion of the Uniform Code of Military Justice under attack here.
III
The roots of my opinion are found In the decision of the Supreme Court ■of the United States cited — and thereafter ignored — by the dissenting judge. I have reference to Mattox v. United States, 156 US 237, 243-244, 39 L ed 409, 15 S Ct 337, where it was said that:
“We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as" securing to every individual such as he already possessed as a British subject, — such as his ancestors had inherited and defended since the days of Magna Charta. Many.of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried further than is necessary to the just protection of the accused, and further than the safety of the public will warrant. For instance, there could be nothing more directly contrary, to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination, nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted, not in conformity with any general rule regarding the admission of testimony, ■but as an exception to such rules,, simply -from the necessities of the case, and to prevent a manifest failure to justice. . . [Emphasis supplied] .
I need no clearer direction than this that an exception to the principle of confrontation may be compelled by necessity. I am sure that the other two members of this Court are as unwilling as Judge Quinn to “disregard a.constitutional [or, for that matter, any other] safeguard for reasons of expediency.” (Emphasis supplied). This is not to say, however, that we are not entirely willing in eoncededly critical areas, to weigh — thoughtfully, and with a full sense of judicial responsibility — certain protections surrounding the individual against the practical demands of law ad*228ministration in the military scene. In doing this we are. supported both by ancient usage and the very highest authority. Indeed, the fabric of the common law is shot through with examples of this very process. That the safeguard with which we are concerned is enshrined in the Federal Constitution seems to have little to do with the case. Certainly any phrasing accorded it. there must be the. subject of interpretation. Moreover, the concept of' confrontation was a tenet of the common law long before it became a constitutional principle. It has often yielded to the balanced claims of necessity in its earlier garb, and it should in a proper case — and has — in its later one as well.
It seems to me that the dissenter is viewing the present problem with an eye single to one pan of the scales. Rather, I would urge a binocular approach here, as I have done in a number of other situations which have come before this Court. I find it genuinely difficult to understand why he will allow no place whatever to the claims of necessity, however pressing and however respectable. Judge Latimer has adequately pointed out the obvious and crucial needs which dictate the use of the sort of. deposition met here. Their reiteration by me would be superfluous.