Equality.--If due process is to be secured, the laws must

operate alike upon all, and not subject the individual to the arbitrary

exercise of governmental power unrestrained by established principles of

private rights and distributive justice. Where a litigant has the

benefit of a full and fair trial in the State courts, and his rights are

measured, not by laws made to affect him individually, but by general

provisions of law applicable to all those in like condition, he is not

deprived of property without due process of law, even if he can be

regarded as deprived of his property by an adverse result.[679]

Due Process and Judicial Process.--Due process of law does not

always mean a proceeding in court.[680] Proceedings to raise revenue by

levying and collecting taxes are not necessarily judicial, neither are

administrative and executive proceedings, yet their validity is not

thereby impaired.[681] Moreover, the due process clause has been

interpreted as not requiring that the judgment of an expert commission

be supplanted by the independent view of judges based on the conflicting

testimony, prophecies, and impressions of expert witnesses when

judicially reviewing a formula of a State regulatory commission for

limiting daily production in an oil field and for proration among the

several well owners.[682]

Nor does the Fourteenth Amendment prohibit a State from conferring upon

nonjudicial bodies certain functions that may be called judicial, or

from delegating to a court powers that are legislative in nature. For

example, State statutes vesting in a parole board certain judicial

functions,[683] or conferring discretionary power upon administrative

boards to grant or withhold permission to carry on a trade,[684] or

vesting in a probate court authority to appoint park commissioners and

establish park districts[685] are not in conflict with the due process

clause and present no federal question. Whether legislative, executive,

and judicial powers of a State shall be kept altogether distinct and

separate, or whether they should in some particulars be merged is for

the determination of the State.[686]

Jurisdiction

In General.--Jurisdiction may be defined as the power to create

legal interests; but if a State attempts to exercise such power with

respect to persons or things beyond its borders, its action is in

conflict with the Fourteenth Amendment and is void within as well as

without its territorial limits. The foundation of jurisdiction is

therefore physical power capable of being exerted over persons through

_in personam_ actions and over things, generally through actions _in

rem_.[687] In proceedings _in personam_ to determine liability of a

defendant, no property having been subjected by such litigation to the

control of the Court, jurisdiction over the defendant's person is a

condition prerequisite to the rendering of any effective decree.[688]

That condition is fulfilled; that is, a State is deemed capable of

exerting jurisdiction over an individual if he is physically present

within the territory of the State, if he is domiciled in the State

although temporarily absent therefrom, or if he has consented to the

exercise of jurisdiction over him. In actions _in rem_, however, a State

validly may proceed to settle controversies with regard to rights or

claims against property within its borders, notwithstanding that control

of the defendant is never obtained. Accordingly, by reason of its

inherent authority over titles to land within its territorial confines,

a State may proceed through its courts to judgment respecting the

ownership of such property, even though it lacks the constitutional

competence to reach claimants of title who reside beyond its

borders.[689] By the same token, probate[690] and garnishment or foreign

attachment[691] proceedings, being in the nature of _in rem_ actions for

the disposition of property, may be prosecuted to conclusion without

requirement of the presence of all parties in interest.[692]

How Perfected: By Voluntary Appearance or Service of

Process.--It is not enough, however, that a State be potentially

capable of exercising control over persons and property. Before a State

legitimately can exercise such power to alter private interests, its

jurisdiction must be perfected by the employment of an appropriate mode

of serving process deemed effective to acquaint all parties of the

institution of proceedings calculated to affect their rights; for the

interest of no one constitutionally may be impaired by a decree

resulting from litigation concerning which he was afforded neither

notice nor an opportunity to participate.[693] Voluntary appearance, on

the other hand, may enable a State not only to obtain jurisdiction over

a person who was otherwise beyond the reach of its process; but also, as

in the case of a person who was within the scope of its jurisdiction, to

dispense with the necessity of personal service. When a party

voluntarily appears in a cause and actively conducts his defense, he

cannot thereafter claim that he was denied due process merely because he

was not served with process when the original action was commenced.[694]

Service of Process in Actions in Personam: Individuals, Resident and

Nonresident.--The proposition being well established that no person

can be deprived of property rights by a decree in a case in which he

neither appeared, nor was served or effectively made a party, it

follows, by way of illustration that to subject property of individual

citizens of a municipality, by a summary proceeding in equity, to the

payment of an unsatisfied judgment against the municipality would be a

denial of due process of law.[695] Similarly, in a suit against a local

partnership, in which the resident partner was duly served with process

and the nonresident partner was served only with notice, a judgment thus

obtained is binding upon the firm and the resident partner, but is not a

personal judgment against the nonresident and cannot be enforced by

execution against his individual property.[696] That the nonresident

partner should have been so protected is attributable to the fact the

process of a court of one State cannot run into another and summon a

party there domiciled to respond to proceedings against him, when

neither his person nor his property is within the jurisdiction of the

Court rendering the judgment.[697] In the case of a resident, however,

absence alone will not defeat the processes of courts in the State of

his domicile; for domicile is deemed to be sufficient to keep him within

reach of the State courts for purposes of a personal judgment, whether

obtained by means of appropriate, substituted service, or by actual

personal service on the resident at a point outside the State.

Amenability to such suit even during sojourns outside is viewed as an

"incident of domicile."[698] However, if the defendant, although

technically domiciled therein, has left the State with no intention to

return, service by publication; that is, by advertisement in a local

newspaper, as compared to a summons left at his last and usual place of

abode where his family continued to reside, is inadequate inasmuch as it

is not reasonably calculated to give him actual notice of the

proceedings and opportunity to be heard.[699]

In the case of nonresident individuals who are domiciled elsewhere,

jurisdiction in certain instances may be perfected by requiring such

persons, as a condition to entering the State, to designate local agents

to accept service of process. Although a State does not have the power

to exclude individuals until such formal appointment of an agent has

been made,[700] it may, for example, declare that the use of its

highways by a nonresident is the equivalent of the appointment of the

State Registrar as agent for receipt of process in suits growing out of

motor vehicle accidents. However, a statute designating a State official

as the proper person to receive service of process in such litigation

must, to be valid, contain a provision making it reasonably probable

that a notice of such service will be communicated to the person sued.

If the statute imposed "either on the plaintiff himself, or upon the

official" designated to accept process "or some other, the duty of

communicating by mail or otherwise with the defendant" this requirement

is met; but if the act exacts no more than service of process on the

local agent, it is unconstitutional, notwithstanding that the defendant

may have been personally served in his own State. Not having been

directed by the statute, such personal service cannot supply

constitutional validity to the act or to service under it.[701]

Suits _in Personam_.--Restating the constitutional principles

currently applicable for determining whether individuals, resident and

nonresident, are suable in _in personam_ actions, the Supreme Court in

International Shoe Co. _v._ Washington,[702] recently declared that:

"Historically the jurisdiction of courts to render judgments _in

personam_ is grounded on their de facto power over the defendant's

person. Hence his presence within the territorial jurisdiction of a

court was prerequisite to its rendition of a judgment personally binding

him. * * * But now * * *, due process requires only that in order to

subject a defendant to a judgment _in personam_, if he be not present

within the territory of the forum, he have certain minimum contacts with

it such that the maintenance of the suit does not offend 'traditional

notions of fair play and substantial justice.'"

Suability of Foreign Corporations.--Until the enunciation in

1945 in International Shoe Co. _v._ Washington[703] of a "fair play and

substantial justice" doctrine, the exact scope of which cannot yet be

ascertained, the suability of foreign corporations had been determined

by utilization of the "presence" doctrine. Defined in terms no less

abstract than its alleged successor and capable therefore of acquiring

meaning only in cases of specific application, the "presence" doctrine

was stated by Justice Brandeis as follows: "In the absence of consent, a

foreign corporation is amenable to process to enforce a personal

liability only if it is doing business within the State in such manner

and to such extent as to warrant the inference that it is present

there".[704] In a variety of cases the Court has considered the measure

of "presence" sufficient to confer jurisdiction and a representative

sample of the classes thereof is set forth below.

With rare exceptions,[705] even continuous activity of some sort by a

foreign corporation within a State did not in the past suffice to render

it amenable to suits therein unrelated to that activity. Without the

protection of such a rule, it was maintained, foreign corporations would

be exposed to the manifest hardship and inconvenience of defending in

any State in which they happen to be carrying on business suits for

torts wherever committed and claims on contracts wherever made. Thus, an

Indiana insurance corporation, engaging, without formal admission, in

the business of selling life insurance in Pennsylvania, was held not to

be subject in the latter State to a suit filed by a Pennsylvania

resident upon an insurance policy executed and delivered in

Indiana.[706] Similarly, a Virginia railway corporation, doing business

in New Orleans, was declared not to be within the jurisdiction of

Louisiana for the purposes of a negligence action instituted against it

by a Louisiana citizen and based upon injuries suffered in Alabama.[707]

Also, an Iowa railway company soliciting freight and passenger business

in Philadelphia through a local agent was viewed as exempt therein from

suit brought by a Pennsylvania resident to recover damages for personal

injuries sustained on one of the carrier's trains in Colorado.[708] On

the other hand, when a Missouri statute, accepted by a foreign insurance

company and requiring it to designate the State superintendent of

insurance as its agent for service of process, was construed by Missouri

courts to apply to suits on contracts executed outside Missouri, with

the result that the company had to defend in Missouri a suit on a policy

issued in Colorado and covering property therein, the Court was unable

to discern any denial of due process. The company was deemed to have

consented to such interpretation when it complied with the statute.[709]

Moreover, even when the cause of action arose in the forum State and

suit was instituted by a corporation chartered therein, a foreign

company retailing clothing in Oklahoma was held immune from service of

process on its president when the latter visited New York on one of his

periodic trips there for the purchase of merchandise. Notwithstanding

that such business trips were made at regular intervals, the Oklahoma

corporation was considered not to be doing business in New York "in such

manner and to such extent as to warrant the inference that it was

present there," especially in view of its having never applied for a

license to do business in New York or consented to suit being brought

against it there, or established therein an office or appointed a

resident agent.[710]

Nor would the mere presence within its territorial limits of an agent,

officer, or stockholder, upon whom service might readily be had, be

effective without more to enable a State to acquire jurisdiction over a

foreign corporation. Consequently, service of process on the president

of a foreign corporation in a State where he was temporarily and

casually present and where the corporation did no business and had no

property was fruitless.[711] Likewise, service on a New York director

of a Virginia corporation was not sufficient to bring the corporation

into the New York courts when, at the time of service, the corporation

was not doing business in New York, and the director was not there

officially representing the corporation in its business.[712] On

occasion, an officer of a corporation may temporarily be in a State or

even temporarily reside therein; but if he is not there for the purpose

of transacting business for the corporation, or vested with authority by

the corporation to transact business in such State, his presence affords

no basis for the exercise of jurisdiction over such nonresident

employer, and any decree resulting from service upon such officer is

violative of due process.[713] However, a foreign insurance corporation

which had ceased to sell insurance in Tennessee but which had sent a

special agent there to adjust a loss under a policy previously issued in

that State could not, it was held, constitutionally object when a

judgment on that claim was obtained by service on that agent.[714]

Inasmuch as a State need not permit a foreign corporation to do domestic

business within its borders, it may condition entry upon acceptance by

the corporation of service of process upon its agents or upon a person

to be designated by the corporation or, failing such designation, upon a

State officer designated by law.[715] Service on a State officer,

however, is no more effective than service upon an agent in the employ

of a foreign corporation when, as has already been noted, such

corporation is not subject to the jurisdiction of the State; that is,

has not engaged in activities sufficient to render it "present" within

the State, or is subjected to a cause of action unrelated to such

activities and originating beyond the forum State. Thus, a foreign

insurance company which, after revocation of its entry license,

continued to collect premiums on policies formerly issued to citizens of

the forum State was in fact continuing to do business in that State

sufficiently to render service on it through the insurance commissioner

adequate to bind it as defendant in a suit by a citizen of said State on

a policy therein issued to him.[716] Furthermore, a foreign corporation

which, after leaving a State and subsequently dissolving, failed to obey

a statutory requirement of that State that it maintain therein a

resident agent until the period of limitations shall have run, or, in

default thereof, that it consent to service on it through the Secretary

of State, could not complain of any denial of due process because that

statute did not oblige the Secretary of State to notify it of the

pendency of an action. The burden was on the corporation to make such

arrangement for notice as was thought desirable.[717]

To what extent these aforementioned holdings have been undermined by the

recent opinion in International Shoe Co. _v._ Washington[718] cannot yet

be determined. In the latter case, a foreign corporation, which had not

been issued a license to do business in Washington, but which

systematically and continuously employed a force of salesmen, residents

thereof, to canvass for orders therein, was held suable in Washington

for unpaid unemployment compensation contributions in respect to such

salesmen. Service of the notice of assessment personally upon one of its

local sales solicitors plus the forwarding of a copy thereof by

registered mail to the corporation's principal office in Missouri was

deemed sufficient to apprize the corporation of the proceeding.

To reach this conclusion the Court not only overturned prior holdings to

the effect that mere solicitation of patronage does not constitute doing

of business in a State sufficient to subject a foreign corporation to

the jurisdiction thereof,[719] but also rejected the "presence" test as

begging "the question to be decided. * * * The terms 'present' or

'presence,'" according to Chief Justice Stone, "are used merely to

symbolize those activities of the corporation's agent within the State

which courts will deem to be sufficient to satisfy the demands of due

process. * * * Those demands may be met by such contacts of the

corporation with the State of the forum as make it reasonable, in the

context of our federal system * * *, to require the corporation to

defend the particular suit which is brought there; [and] * * * that the

maintenance of the suit does not offend 'traditional notices of fair

play and substantial justice' * * * An 'estimate of the inconveniences'

which would result to the corporation from a trial away from its 'home'

or principal place of business is relevant in this connection."[720] As

to the scope of application to be accorded this "fair play and

substantial justice" doctrine, the Court, at least verbally, conceded

that "* * * so far as * * * [corporate] obligations arise out of or are

connected with activities within the State, a procedure which requires

the corporation to respond to a suit brought to enforce them can, in

most instances, hardly be said to be undue."[721] Read literally, these

statements coupled with the terms of the new doctrine may conceivably

lead to a reversal of former decisions which: (1) nullified the exercise

of jurisdiction by the forum State over actions arising outside said

State and brought by a resident plaintiff against a foreign corporation

doing business therein without having been legally admitted and without

having consented to service of process on a resident agent; and (2)

exempted a foreign corporation, which has been licensed by the forum

State to do business therein and has consented to the appointment of a

local agent to accept process, from suit on an action not arising in the

forum State and not related to activities pursued therein.

By an extended application of the logic of the last mentioned case, a

majority of the Court, in Travelers Health Assn. _v._ Virginia[722]

ruled that, notwithstanding that it solicited business in Virginia

solely through recommendations of existing members and was represented

therein by no agents whatsoever, a foreign mail order insurance company

had through its policies developed such contacts and ties with Virginia

residents that the State, by forwarding notice to the company by

registered mail only, could institute enforcement proceedings under its

Blue Sky Law leading to a decree ordering cessation of business pending

compliance with that act. The due process clause was declared not to

"forbid a State to protect its citizens from such injustice" of having

to file suits on their claims at a far distant home office of such

company, especially in view of the fact that such suits could be more

conveniently tried in Virginia where claims of loss could be

investigated.[723]

Service of Process

Actions in Rem--Proceedings Against Land.--For the purpose of

determining the extent of a nonresident's title to real estate within

its limits, a State may provide any reasonable means of imparting

notice.[724] Precluded from going beyond its boundaries and serving

nonresident owners personally, States in such cases of necessity have

had recourse to constructive notice or service by publications. This

they have been able to do because of their inherent authority over

titles to lands within their borders. Owners, nonresident as well as

resident, are charged with knowledge of laws affecting demands of the

State pertinent to property and of the manner in which such demands may

be enforced.[725] Accordingly, only so long as the property affected has

been brought under control of the Court, will a judgment obtained

thereto without personal notice to a nonresident defendant be effective.

Insofar as jurisdiction is thus required over a nonresident, it does not

extend beyond the property involved.[726] Consistently with such

principles, San Francisco, after the earthquake of 1906, had destroyed

nearly all records, permitted titles to be reestablished by parties in

possession by posting summons on the property, serving them on known

claimants, and publishing them against unknown claimants in newspapers

for two weeks.[727]

Actions in Rem--Attachment Proceedings.--In fulfillment of the

protection which a State owes to its citizens, it may exercise its

jurisdiction over real and personal property situated within its borders

belonging to a nonresident and permit an appropriation of the same in

attachment proceedings to satisfy a debt owed by the nonresident to one

of its citizens or to settle a claim for damages founded upon a wrong

inflicted on the citizen by the nonresident. Being neither present

within the State nor domiciled therein, the nonresident defendant cannot

be served personally; and consequently any judgment in money obtained

against him would be void and could not thereafter be satisfied either

by execution on the nonresident's property subsequently found within the

State or by suit and execution thereon in another State. In such

instances, the citizen-plaintiff may recover, if at all, only by an _in

rem_ proceeding involving a levy of a writ of attachment on the local

property of the defendant, of which proceeding the nonresident need be

notified merely by publication of a notice within the forum State.

However, any judgment rendered in such proceedings can have no

consequence beyond the property attached. If the attached property be

insufficient to pay the claim, the plaintiff cannot thereafter sue on

such judgment to collect an unpaid balance; and if property owned by the

defendant cannot be found within the State, the attachment proceedings

are, of course, summarily concluded.[728]

Actions in Rem--Corporations, Estates, Trusts, Etc.--Probate

administration, being in the nature of a proceeding _in rem_, is one to

which all the world is charged with notice.[729] Thus, in a proceeding

against an estate involving a suit against an administratrix to

foreclose a mortgage executed by the decedent, the heir, notwithstanding

that the suit presents an adverse claim the disposition of which may be

destructive of his title to land deriving from the decedent, may

properly be represented by the administratrix and is not entitled to

personal notification or summons.[730] For like reasons, a statutory

proceeding whereunder a special administrator, having charge of an

estate pending a contest as to the validity of the will, is empowered

to have a final settlement of his accounts without notice to the

distributees, is not violative of due process. The executor, or

administrator c.t.a., has an opportunity to contest the final settlement

of the special administrator before giving the latter an acquittance;

and since the former represents all claiming under the will, it cannot

be said the absence of notice to the distributees of the settlement

deprives them of their rights without due process of law.[731]

In litigation to determine succession to property by proceedings in

escheat, due process is afforded by personal service of summons upon all

known claimants and constructive notice by publication to all claimants

who are unknown.[732] Whether a proceeding by the State to compel a bank

to turn over to it unclaimed deposits in _quasi in rem_ or strictly _in

rem_, the essentials of jurisdiction over the deposit are that there be

a seizure of the _res_ at the commencement of the suit and reasonable

notice and opportunity to be heard. These requirements are met by

personal service on the bank and publication of summons to depositors

and of notice to all other claimants. The fact that no affidavit of

impracticability of personal service on claimants is required before

publication of such notices does not render the latter unreasonable

inasmuch as they are used only in cases where the depositor is not known

to the bank officers to be alive.[733] Similarly, a Kentucky statute

requiring banks to turn over to the State deposits long inactive is not

violative of due process where, although the deposits are taken over

upon published notice only, without any judicial decree of actual

abandonment, they are to be held by the State for the depositor until

such determination and for five years thereafter.[734] However, a

procedure is at least partly defective whereby a bank managing a common

trust fund in favor of nonresident as well as resident beneficiaries

may, by a petition, the only notice of which is by publication in a

local paper, obtain a judicial settlement of accounts which is

conclusive on all having an interest in the common fund or in any

participating trust. Such notice by publication is sufficient as to

beneficiaries whose interests or addresses are unknown to the bank,

since there are no other more practicable means of giving them notice;

but is inadequate as a basis for adjudication depriving of substantial

rights persons whose whereabouts are known, inasmuch as it is feasible

to make serious efforts to notify them at least by mail to their

addresses on record with said bank.[735] On the other hand, failure to

make any provision for notice to majority stockholders of a suit by

dissenting shareholders, under a statute which provided that, on a sale

or other disposition of all or substantially all of corporate assets, a

dissenting shareholder shall have the right, after six months, to be

paid the amount demanded, if the corporation makes no counter offer or

does not abandon the sale, does not deny due process; for the majority

stockholders are sufficiently represented by the corporation.[736]

Actions in Rem--Divorce Proceedings.--The jurisdictional

requirements for rendering a valid decree in divorce proceedings are

considered under the full faith and credit clause. _See_ pp. 662-670.

Misnomer of Defendant--False Return, Etc.--An unattainable

standard of accuracy is not imposed by the due process clause. If a

defendant within the jurisdiction is served personally with process in

which his name is misspelled, he cannot safely ignore it on account of

the misnomer. If he fails to appear and plead the misnomer in abatement,

the judgment binds him. In a published notice intended to reach absent

or nonresident defendants, where the name is a principal means of

identifying the person concerned, somewhat different considerations

obtain. The general rule, in case of constructive service of process by

publication, tends to strictness. However, published notice to "Albert

Guilfuss, Assignee," in a suit to partition land, was adequate to render

a judgment binding on "Albert B. Geilfuss, Assignee," the latter not

having appeared.[737]

Foreclosure of a mortgage made upon process duly issued but which the

sheriff falsely returned as having been duly served, and of which the

owner had no notice, does not deprive said owner of property without due

process of law. A purchaser of the land at the sheriff's sale has a

right to rely on such return; otherwise judicial proceedings could never

be relied upon. The mortgagor must seek his remedy against the sheriff

upon his bond.[738]

Notice and Hearing

Legislative Proceedings.--While due notice and a reasonable

opportunity to be heard to present one's claim or defense have been

declared to be two fundamental conditions almost universally prescribed

in all systems of law established by civilized countries,[739] there are

certain proceedings appropriate for the determination of various rights

in which the enjoyment of these two privileges has not been deemed to be

constitutionally necessary. Thus the Constitution does not require

legislative assemblies to discharge their functions in town meeting

style; and it would be manifestly impracticable to accord every one

affected by a proposed rule of conduct a voice in its adoption. Advanced

notice of legislation accordingly is not essential to due process of

law; nor need legislative bodies preface their enactment of legislation

by first holding committee hearings thereon. It follows therefore that

persons adversely affected by a specific law can never challenge its

validity on the ground that they were never heard on the wisdom or

justice of its provisions.[740]

Administrative Proceedings.--To what extent notice and hearing

are deemed essential to due process in administrative proceedings,

encompassing as they do the formulation and issuance of general

regulations, the determination of the existence of conditions which have

the effect of bringing such regulations into operation, and the issuance

of orders of specific, limited application, entails a balancing of

considerations as to the desirability of speed in law enforcement and

protection of individual interests. When an administrative agency

engages in a legislative function, as, for example, when, in pursuance

of statutory authorization, it drafts regulations of general application

affecting an unknown number of people, it need not, any more than does a

legislative assembly, afford a hearing prior to promulgation. On the

other hand, if a regulation, sometimes described as an order or action

of an administrative body, is of limited application; that is, affects

the property or interests of specific, named individuals, or a

relatively small number of people readily identifiable by their relation

to the property or interests affected, the question whether notice and

hearing is prerequisite and, if so, whether it must precede such action,

becomes a matter of greater urgency.

But while a distinction readily may be made, for example, between a

regulation establishing a schedule of rates for all carriers in a State,

and one designed to control the charges of only one or two specifically

named carriers, the cases do not consistently sustain the withholding

of advance notice and hearing in the first class of regulations and

insist upon its provision in the latter. In fact, the observation has

been made that the judicial disposition to exact the protection of

notice and hearing rises in direct proportion to the extent to which a

regulation affects the finances of business establishments covered

thereunder. Accordingly, if a regulation bears only indirectly upon

income and expenses, as for example, a regulation altering insurance

policy forms, less concern for such procedural protection is likely to

be expressed than in the case of the formulation of a minimum wage

schedule, even though the regulations involved in both illustrations are

general and not limited in operation. Moreover, if regulations, which

are general in their application, may be readily subjected to judicial

challenge after their promulgation, or if the parties to which they

apply are affected only when they endeavor to comply in the future,

advance notice and hearing is less likely to be viewed as essential to

due process.[741]

As to that portion of administrative activity pertaining to the making

of determinations or the issuance of orders of limited or individual

application, the obligation to afford notice and hearing is reasonably

clear; but controversy has been protracted on the question whether this

procedural safeguard, in every instance, must be granted in advance of

such activity. The most frequently litigated types of administrative

action embracing the latter issue have been determinations to withhold

issuance of, or to revoke, an occupational license, or to impound or

destroy property believed to be dangerous to public health, morals, or

safety. Apparently in recognition of the fact that few occupations today

can be pursued without a license, the trend of decisions is toward

sustaining a requirement of a hearing before refusal to issue a license

and away from the view that inasmuch as no one is entitled as of right

to engage in a specific profession, the issue of a practitioner's

license applicable thereto is in the nature of a gift as to the granting

or withholding of which procedural protection is unnecessary.

Revocation, or refusal to renew a license, however, has been

distinguished from issuance of a license; and where a license is

construed to confer something in the nature of a property right rather

than a mere privilege terminable at will, such property right, the

Courts have maintained, ought not to be destroyed summarily by

revocation without prior notice and hearing. Whether an occupational

license is to be treated as a privilege revocable without a hearing, or

as conferring a property right deserving of greater protection, depends

very largely on prevailing estimates of the social desirability of a

calling. Thus, if a business is susceptible of being viewed as injurious

to public health, morals, safety, and convenience, as, for example,

saloons, pool rooms, and dance halls, the licensee is deemed to have

entered upon such line of endeavor with advance knowledge of the State's

right to withdraw his license therefor summarily. Prompt protection of

the public in such instances is said to outweigh the advantages of a

slower procedure, retarded by previous notice and hearing, and to

require that the person adversely affected seek his remedy from the

Court via a petition to review or to enjoin the decision of the

licensing authorities.[742]

For like reasons, the owner of property about to be impounded or

destroyed by officers acting in furtherance of the police power may

justifiably be relegated to post mortem remedies in the form of a suit

for damages against the officer effecting the seizure or destruction,

or, if time permits, a bill in equity for an injunction. Thus, due

process of law is not denied the custodian of food in cold storage by

enforcement of a city ordinance under which such food, when unfit for

human consumption, may summarily be seized, condemned, and destroyed

without a preliminary hearing. "If a party cannot get his hearing in

advance of the seizure and destruction he has the right to have it

afterward, * * * in an action brought for the destruction of his

property, and in that action those who destroyed it can only

successfully defend if the jury shall find the fact of unwholesomeness

as claimed by them."[743] Similarly, if the owner of liquor, possession

of which has been made unlawful, can secure a hearing by instituting

injunction proceedings, he is not denied due process by the failure to

grant him a hearing before seizure and destruction of his property.[744]

Indeed, even when no emergency exists, such as is provided by a

conflagration or threatened epidemic, and the property in question is

not intrinsically harmful, mere use in violation of a valid police power

regulation has been held to justify summary destruction. Thus, in the

much criticized case of Lawton _v._ Steele,[745] the destruction,

without prior notice and hearing, of fishing nets set in violation of a

conservation law defining them to be a nuisance was sustained on the

ground that the property was not "of great value." Conceding that "it is

not easy to draw the line between cases where property illegally used

may be destroyed summarily and where judicial proceedings are necessary

for its condemnation," the Court acknowledged that "if the property were

of great value, as, for instance, if it were a vessel employed for

smuggling or other illegal purposes, it would be * * * dangerous * * *

to permit * * * [an officer] to sell or destroy it as a public nuisance,

* * * But where the property is of trifling value, * * * we think it is

within the power of the legislature to order its summary

abatement."[746]

Statutory Proceedings.--"It is not an indispensable requirement

of due process that every procedure affecting the ownership or

disposition of property be exclusively by judicial proceeding. Statutory

proceedings affecting property rights, which, by later resort to the

courts, secure to adverse parties an opportunity to be heard, suitable

to the occasion, do not deny due process."[747] Thus, a procedure under

which a State banking superintendent, after having taken over a closed

bank and issued notices to stockholders of their assessment, may issue

execution for the amounts due, subject to the right of each stockholder,

by affidavit of illegality, to contest his liability for such an

assessment, does not in effect authorize an execution and creation of a

lien before and without any judicial proceeding. The fact that the

execution is issued in the first instance by an agent of the State and

not from a court, followed by personal notice and a right to take the

case into court, is open to no objection. The statute authorizing this

procedure is itself notice to stockholders that on becoming such they

assumed the liability on which they are to be held.[748]

Judicial Proceedings.--Consistently with the due process

clause, a State may not enforce a judgment against a party named in the

proceedings without an opportunity to be heard at sometime before final

judgment is entered.[749] As to the presentation of every available

defense, however, the requirements of due process do not entail

affording an opportunity to do so before entry of judgment. A hearing by

an appeal may suffice. Accordingly, a surety company, objecting to the

entry of a judgment against it on a supersedeas bond, without notice and

an opportunity of a hearing on the issue of liability thereon, was not

denied due process where the State practice provided the opportunity for

such hearing by an appeal from the judgment so entered. Nor could the

company found its claim of denial upon the fact that it lost this

opportunity for a hearing by inadvertently pursuing the wrong procedure

in the State courts.[750] On the other hand, where a State Supreme Court

reversed a trial court and entered a final judgment for the defendant, a

plaintiff who had never had an opportunity to introduce evidence in

rebuttal to certain testimony which the trial court deemed immaterial

but which the appellate court considered material, was held to have been

deprived of his rights without due process of law.[751]

Sufficiency of Notice and Hearing.--Although the Supreme Court

has wavered on the question whether the granting of notice in

administrative proceedings, in cases in which the authorizing statute

does not expressly provide therefor, will satisfy the requirements of

due process,[752] in judicial proceedings it has almost consistently

declared that notice must be provided as an essential part of the

statutory provision and not as a mere matter of favor or grace.[753]

Also, the notice afforded must be adequate for the purpose. Thus, a

Texas statute providing for service of process by giving five days'

notice was held to be an insufficient notice to a Virginian who would

(at that time) have required four days' traveling to reach the place

where the court was held. Nor would this insufficiency of notice on a

nonresident be cured by the fact that under local practice there would

be several additional days before the case would be called for trial or

that the court would probably set aside a default judgment and permit a

defense when the nonresident arrived.[754] On the other hand, a statute

affording ten days' notice of the time for settlement of the account of

a personal representative in probate proceedings is not wanting in due

process of law as to a nonresident.[755] Adequacy, moreover, is no less

an essential attribute of a hearing than it is of notice; and, as the

preceding discussion has shown, unless a person involved in

administrative as well as judicial proceedings has received a hearing

that is both sufficient and fair and has been subjected to rulings amply

supported by the evidence introduced thereat, he will not be considered

to have been accorded due process.[756]

POWER OF STATES TO REGULATE PROCEDURE

Generally

The due process clause of the Fourteenth Amendment does not control mere

forms of procedure in State courts or regulate practice therein.[757] A

State "is free to regulate the procedure of its courts in accordance

with its own conception of policy and fairness unless in so doing it

offends some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental."[758] Pursuant

to such plenary power, States have regulated the manner in which rights

may be enforced and wrongs remedied,[759] and, in connection therewith,

have created courts and endowed them with such jurisdiction as, in the

judgment of their legislatures, seemed appropriate.[760] Whether

legislative action in such matters is deemed to be wise or proves

efficient, whether it works a particular hardship on a particular

litigant, or perpetuates or supplants ancient forms of procedure are

issues which can give rise to no conflict with the Fourteenth Amendment;

for the latter's function is negative rather than affirmative and in no

way obligates the States to adopt specific measures of reform.[761]

Pleading and Practice

Commencement Of Actions.--A State may impose certain conditions

on the right to institute litigation. Thus, access to the courts may be

denied to persons instituting stockholders' derivative actions unless

reasonable security for the costs, and fees incurred by the corporation

is first tendered. Nor is the retroactive application of this statutory

requirement to actions pending at the time of its adoption violative of

due process as long as no new liability for expenses incurred before

enactment is imposed thereby, and the only effect thereof is to stay

such proceedings until the security is furnished.[762] Moreover, when a

nonresident files suit in a local court, the State, as the price of

opening its tribunals to such plaintiff, may exact the condition that

the former stand ready to answer all cross-actions filed and accept any

_in personam_ judgments obtained by a resident defendant through service

of process or appropriate pleading upon the plaintiff's attorney of

record.[763] For similar reasons, the requirements, without excluding

other evidence, of a chemical analysis as a condition precedent to a

suit to recover damages resulting to crops from allegedly deficient

fertilizers is not deemed to be arbitrary or unreasonable.[764]

Pleas in Abatement.--State legislation which forbids a

defendant to come into court and challenge the validity of service upon

him in a personal action without thereby surrendering himself to the

jurisdiction of the Court, but which does not restrain him from

protecting his substantive rights against enforcement of a judgment

rendered without service of process, is constitutional and does not

deprive him of property without due process of law. Such a defendant, if

he please, may ignore the proceedings as wholly ineffective, and set up

the invalidity of the judgment if and when an attempt is made to take

his property thereunder. However, if he desires to contest the validity

of the proceedings in the court in which it is instituted, so as to

avoid even semblance of a judgment against him, it is within the power

of a State to declare that he shall do this subject to the risk of being

obliged to submit to the jurisdiction of the Court to hear and determine

the merits, if the objection raised by him as to its jurisdiction over

his person shall be overruled.[765]

Defenses.--Just as the State may condition the right to

institute litigation, so may it establish its terms for the

interposition of certain defenses. Thus, by statute a State validly may

provide that one sued in a possessory action cannot bring an action to

try title until after judgment shall have been rendered in the

possessory action, and until he shall have paid the judgment, if the

decision shall have so awarded.[766] Likewise, a nonresident defendant

in a suit begun by foreign attachment, even though he has no resources

or credit other than the property attached, cannot successfully

challenge the validity of a statute which requires him to give bail or

security for the discharge of the seized property before permitting him

an opportunity to appear and defend. "The condition imposed has a

reasonable relation to the conversion of a proceeding _quasi in rem_

into an action _in personam_; [and] ordinarily * * * is not difficult to

comply with--* * *"[767]

Amendments and Continuances.--Amendment of pleadings is largely

within the discretion of the trial court, and unless a gross abuse of

discretion is shown, there is no ground for reversal; accordingly, where

the defense sought to be interposed is without merit, a claim that due

process would be denied by rendition of a foreclosure decree without

leave to file a supplementary answer is utterly without foundation.[768]

Costs, Damages, and Penalties.--What costs are allowed by law

is for the court to determine; and an erroneous judgment of what the law

allows does not deprive a party of his property without due process of

law.[769] Nor does a statute providing for the recovery of reasonable

attorney's fees in actions on small claims subject unsuccessful

defendants to any unconstitutional deprivation.[770] Equally consistent

with the requirements of due process is a statutory procedure whereby a

prosecutor of a case is adjudged liable for costs, and committed to jail

in default of payment thereof, whenever the court or jury, after

according him an opportunity to present evidence of good faith, finds

that he instituted the prosecution without probable cause and from

malicious motives.[771] Also, as a reasonable incentive for prompt

settlement without suit of just demands of a class admitting of special

legislative treatment, such as common carriers and insurance companies

together with their patrons, a State through the exercise of its police

power may permit harassed litigants to recover penalties in the form of

attorney's fees or damages.[772] Similarly, to deter careless

destruction of human life, a State by law may allow punitive damages to

be assessed in actions against employers for deaths caused by the

negligence of their employees.[773] Likewise, by virtue of its plenary

power to prescribe the character of the sentence which shall be awarded

against those found guilty of crime, a State may provide that a public

officer embezzling public money shall, notwithstanding that he has made

restitution, suffer not only imprisonment but also pay a fine equal to

double the amount embezzled, which shall operate as a judgment for the

use of persons whose money was embezzled. Whatever this fine be called,

whether it be a penalty, or punishment, or civil judgment, it comes to

the convict as the result of his crime.[774]

Statutes of Limitation

A statute of limitations does not deprive one of property without due

process of law, unless, in its application to an existing right of

action, it unreasonably limits the opportunity to enforce that right by

suit. By the same token, a State may shorten an existing period of

limitation, provided a reasonable time is allowed for bringing an action

after the passage of the statute and before the bar takes effect. What

is a reasonable period, however, is dependent on the nature of the right

and particular circumstances.[775]

Thus, an interval of only one year is not so unreasonable as to be

wanting in due process when applied to bar actions relative to the

property of an absentee in instances when the receiver for such property

has not been appointed until 13 years after the former's

disappearance.[776] Likewise, when a State, by law, suddenly prohibits,

unless brought within six months after its passage, all actions to

contest tax deeds which have been of record for two years, no

unconstitutional deprivation is effected.[777] No less valid is a

statute, applicable to wild lands, which provides that when a person has

been in possession under a recorded deed continuously for 20 years, and

had paid taxes thereon during the same, the former owner in that

interval paying nothing, no action to recover such land shall be

entertained unless commenced within 20 years, or before the expiration

of five years following enactment of said provision.[778] Similarly, an

amendment to a workmen's compensation act, limiting to three years the

time within which a case may be reopened for readjustment of

compensation on account of aggravation of a disability, does not deny

due process to one who sustained his injury at a time when the statute

contained no limitation. A limitation is deemed to affect the remedy

only, and the period of its operation in this instance was viewed as

neither arbitrary nor oppressive.[779]

Moreover, as long as no agreement of the parties is violated, a State

may extend as well as shorten the time in which suits may be brought in

its courts and may even entirely remove a statutory bar to the

commencement of litigation. As applied to actions for personal debts, a

repeal or extension of a statute of limitations effects no

unconstitutional deprivation of property of a debtor-defendant in whose

favor such statute had already become a defense. "A right to defeat a

just debt by the statute of limitation * * * [not being] a vested

right," such as is protected by the Constitution, accordingly no offense

against the Fourteenth Amendment is committed by revival, through an

extension or repeal, of an action on an implied obligation to pay a

child for the use of her property,[780] or a suit to recover the

purchase price of securities sold in violation of a Blue Sky Law,[781]

or a right of an employee to seek, on account of the aggravation of a

former injury, an additional award out of a State administered

fund.[782] However, as respects suits to recover real and personal

property, when the right of action has been barred by a statute of

limitations and title as well as real ownership have become vested in

the defendant, any later act removing or repealing the bar would be void

as attempting an arbitrary transfer of title.[783] Also unconstitutional

is the application of a local statute of limitation declaring invalid

any contractual limitation of the right to sue to a period shorter than

two years to an insurance contract made and to be performed outside the

forum State and containing a stipulation that suit thereon must be

brought within one year from the date of loss. "When the parties to a

contract have expressly agreed upon a time limit on their obligation, a

statute which invalidates * * * [said] agreement and directs enforcement

of the contract after * * * [the agreed] time has expired * * *"

unconstitutionally imposes a burden in excess of that contracted.[784]

Evidence and Presumptions

The establishment of presumptions and rules respecting the burden of

proof is clearly within the domain of State governments.[785] As long

as a presumption is not unreasonable and is not conclusive of the rights

of the person against whom raised, it does not violate the due process

clause. Legislative fiat may not take the place of fact, however, in the

determination of issues involving life, liberty, or property, and a

statute creating a presumption which is entirely arbitrary and which

operates to deny a fair opportunity to repel it or to present facts

pertinent to one's defense is void. On the other hand, if there is a

rational connection between what is proved and what is to be inferred,

legislation declaring that the proof of one fact or group of facts shall

constitute _prima facie_ evidence of a main or ultimate fact will be

sustained.[786]

On the ground that the connection between the fact proven and that

presumed was not sufficient and that reasoning did not lead from one to

the other, the following statutory presumptions have been voided. Thus,

a statute which treated a breach of a contract to labor as _prima facie_

evidence of an intent to defraud an employer of money paid by him in

advance was found to be constitutionally defective because the trial

court was permitted to disregard evidence rationally bearing upon fraud

and to decide upon evidence pertaining to an unrelated breach of

contract, with the consequence that an adequate hearing upon fraud was

not afforded.[787] Also, since "inference of crime and guilt may not

reasonably be drawn from mere inability [of a bank] to pay demand

deposits and other debts as they mature," a statute making proof of

insolvency _prima facie_ evidence of fraud on the part of bank directors

was deemed wholly arbitrary.[788] Similarly, negligence by one or all

the participants in a grade crossing collision not being inferable from

the latter occurrence, the Court voided a Georgia statute which declared

that a railroad shall be liable in damages to person or property by the

running of trains unless the company shall make it appear that its

agents exercised ordinary diligence, the presumption in all cases being

against the company, and which was construed by State courts as

permitting said presumption of evidence to be weighed against opposing

testimony and to prevail unless such testimony is found by a jury to be

preponderant.[789] On the other hand, a South Carolina statute which

raised a presumption of negligence against a railroad upon proof of

failure to give prescribed warning signals was sustained because the

presumption therein established gave rise merely to a temporary

inference which might be rebutted by contrary evidence and which is

thereafter to be excluded in determining proximate cause.[790]

Presumptions sustained as constitutionally tenable include those set out

in statutes providing that when distillery apparatus is found upon the

premises of an individual, such discovery shall be _prima facie_

evidence of actual knowledge of the presence of the same;[791] that the

flowing, release, or escape of natural gas into the air shall constitute

_prima facie_ evidence of prohibited waste,[792] and that prior

conviction of a felony shall be conclusive evidence of bad character

justifying refusal to issue a license to practice medicine.[793] Upheld,

consistently with the former, were two sections of the California alien

land law; one, which specified that the taking of title in the name of a

person eligible to hold land, where the consideration is furnished by

one ineligible to acquire agricultural land, shall raise a _prima facie_

presumption that the conveyance is made to evade the law;[794] and a

second, which cast upon a Japanese defendant the burden of proving

citizenship by birth after the State endeavored to prove that he

belonged to a race ineligible for naturalization.[795] In contrast with

the latter result, however, is a subsequent decision of the Court

holding unconstitutional another section of the same California law

providing that when an indictment alleges alienage and ineligibility to

United States citizenship of a defendant, the burden of proving

citizenship or eligibility thereto shall devolve upon the

defendant.[796] As a basis for distinguishing these last two decisions

the Court observed that while "the decisions are manifold that within

[the] limits" of fairness[797] and reason the burden of proof may be

shifted to the defendant even in criminal prosecutions, nevertheless, to

be justified, "the evidence held to be inculpatory * * * [must have had]

at least a sinister significance * * *, or if this at times be lacking,

there must be in any event a manifest disparity in convenience of proof

and opportunity for knowledge, * * *" Whereas, accordingly, under the

terms of the section previously upheld, the defendant could prove his

citizenship without trouble, and the State, if forced to disprove his

claim, could be relatively helpless, the background of the accused party

being known probably only to himself and close relatives, the alleged

Japanese defendant, in the last mentioned case, would have suffered

hardship and injustice if compelled to prove non-Japanese origin,

especially since ineligibility renders criminal conduct otherwise

lacking in "sinister significance" (occupation of land under lease from

an American codefendant).[798] On the other hand, it was held in a

recent case, that Oregon was entitled to require that one pleading

insanity as a defense against a criminal charge should prove same beyond

a reasonable doubt, and to make "morbid propensity" no defense.[799]

Jury Trials: Dispensing With Jury Trials

Trial by jury has not been considered essential to due process, and

since the Fourteenth Amendment guarantees no particular form or method

of procedure, States have been free to retain or abolish juries.[800]

Conformably to the Constitution, States, in devising their own

procedures, eliminated juries in proceedings to enforce liens,[801]

inquiries for contempt,[802] mandamus[803] and quo warranto

actions,[804] and in eminent domain[805] and equity proceedings.[806]

States are equally free to adopt innovations respecting the selection

and number of jurors. Verdicts rendered by ten out of twelve jurors may

be substituted for the requirement of a unanimous verdict,[807] and

petit juries containing eight rather than the conventional twelve

members may be established.[808]

DUE PROCESS IN CRIMINAL PROCEEDINGS

General

In the following pages the requirements of the due process clause of

Amendment XIV in criminal cases will be dealt with in approximately the

order in which questions regarding them arise in the course of a

prosecution.

Indefinite Statutes: Right of Accused to Knowledge of Offense

"A statute so vague and indefinite, in form and as interpreted, * * *

[as to fail] to give fair notice of what acts will be punished, * * *,

violates an accused's rights under procedural due process * * * [A penal

statute must set up] ascertainable standards of guilt. [So that] men of

common intelligence * * * [are not] required to guess at * * * [its]

meaning," either as to persons within the scope of the act or as to

applicable tests to ascertain guilt.[809]

Defective by these tests and therefore violative of due process is a

statute providing that any person not engaged in any lawful occupation,

known to be a member of any gang consisting of two or more persons, who

has been convicted at least three times of being a disorderly person, or

who has been convicted of any crime in this or any other State, is a

gangster and subject to fine or imprisonment. Pointing to specific

shortcomings of this act, the Supreme Court observed that "* * * neither

[at] common law, * * * nor anywhere in the language of the law is there

[to be found any] definition of the word, * * * 'gang'." The State

courts, in adopting dictionary definitions of that term, were not to be

viewed as having intended to give "gangster" a meaning broad enough to

include anyone who had not been convicted of a specified crime or of

disorderly conduct as set out in the statute, or to limit its meaning to

the field covered by the words that they found in a dictionary ("roughs,

thieves, criminals"). Application of the latter interpretation would

include some obviously not within the statute and would exclude some

plainly covered by it. Moreover, the expression, "known to be a member,"

is ambiguous; and not only permits a doubt as to whether actual or

putative association is meant, but also fails to indicate what

constitutes membership or how one may join a gang. In conclusion, the

Supreme Court declared that if on its face a challenged statute is

repugnant to the due process clause, specification of details of the

offense intended to be charged would not serve to validate it; for it is

the statute, not the accusation under it, that prescribes the rule to

govern conduct and warns against transgression.[810] In contrast, the

Court sustained as neither too vague nor indefinite a State law which

provided for commitment of a psychopathic personality by probate action

akin to a lunacy proceeding, and which was construed by the State court

as including those persons who, by habitual course of misconduct in

sexual matters, have evidenced utter lack of power to control their

sexual impulses and are likely to inflict injury. The underlying

conditions, i.e., habitual course of misconduct in sex matters and lack

of power to control impulses, and likelihood of attack on others, were

viewed as calling for evidence of past conduct pointing to probable

consequences and as being as susceptible of proof as many of the

criteria constantly applied in criminal prosecutions.[811]

Abolition of the Grand Jury

An indictment or presentment by a grand jury, as known to the common law

of England, is not essential to due process of law even when applied to

prosecutions for felonies. Substitution for a presentment or indictment

by a grand jury of the proceeding by information, after examination and

commitment by a magistrate, certifying to the probable guilt of the

defendant, with the right on his part to the aid of counsel, and to the

cross-examination of the witnesses produced for the prosecution is due

process of law.[812] Furthermore, due process does not require that the

information filed by the prosecuting attorney should have been preceded

by the arrest or preliminary examination of the accused.[813] Even when

an information is filed pending an investigation by the coroner, due

process has not been violated.[814] But when the grand jury is retained

it must be fairly constituted. Thus, in the leading case, an indictment

by a grand jury in a county of Alabama in which no member of a

considerable Negro population had ever been called for jury service, was

held void, although the Alabama statute governing the matter did not

discriminate between the two races.[815]

The Right to Counsel

Whatever previously may have been recognized as constituting the

elements of procedural due process in criminal cases, it was not until

1932[816] that the Supreme Court acknowledged that the right "to have

the assistance of counsel for * * * [one's] defense," guaranteed as

against the National Government by the Sixth Amendment, was of such

fundamental character as to be embodied in the concept of due process of

law as set forth in the Fourteenth Amendment. Later in 1937, it effected

this incorporation by way of expansion of the term, "liberty," rather

than, "due process," and conceded that the right to counsel was

"implicit in the concept of ordered liberty."[817]

For want of adequate enjoyment of the right to counsel, the Court, in

Powell _v._ Alabama,[818] overturned the conviction of Negroes who had

received sentences of death for rape, and asserted that, at least in

capital cases, where the defendant is unable to employ counsel and is

incapable adequately of making his own defense because of ignorance,

illiteracy, or the like, it is the duty of the court, whether requested

or not, to assign counsel for him as a necessary requisite of due

process of Law. The duty is not discharged by an assignment at such time

or under such circumstances as to preclude the giving of effective aid

in preparation and trial of the case. Under certain circumstances (e.g.,

ignorance and illiteracy of defendants, their youth, public hostility,

imprisonment and close surveillance by military forces, fact that

friends and families are in other States, and that they stand in deadly

peril of their lives), the necessity of counsel is so vital and

imperative that the failure of a trial court to make an effective

appointment of counsel is a denial of due process of law.[819]

By its explicit refusal in Powell _v._ Alabama to consider whether

denial of counsel in criminal prosecutions for less than capital

offenses or under other circumstances[820] was equally violative of the

due process clause, the Court left undefined the measure of the

protection available to defendants; and its first two pertinent

decisions rendered thereafter, contributed virtually nothing to correct

that deficiency. In Avery _v._ Alabama,[821] a State trial court was

sustained in its refusal to continue a murder case upon request of

defense counsel appointed by said court only three days before the

trial, who contended that they had not had sufficient time to prepare a

defense, and in its subsequent rejection of a motion for a new trial

which was grounded in part on the contention that the denial of the

continuance was a deprivation of the prisoner's rights under the

Fourteenth Amendment. Apart from an admission that "where denial of the

constitutional right to assistance of counsel is asserted, its peculiar

sacredness demands that we scrupulously review the record," a unanimous

Court proffered only the following vague appraisal of the application of

the Fourteenth Amendment: "In determining whether petitioner has been

denied his constitutional right * * *, we must remember that the

Fourteenth Amendment does not limit the power of the States to try and

deal with crimes committed within their borders, and was not intended to

bring to the test of a decision of this Court every ruling made in the

course of a State trial. Consistently with the preservation of

constitutional balance between State and federal sovereignty, this Court

must respect and is reluctant to interfere with the States'

determination of local social policy."[822] One year later, the Court

made another inconclusive observation in Smith _v._ O'Grady,[823] in

which it stated that if true, allegations in a petition for _habeas

corpus_ showing that the petitioner, although an uneducated man and

without prior experience in court, was tricked into pleading guilty to a

serious crime of burglary, and was tried without the requested aid of

counsel would void the judgment under which he was imprisoned.

Conceding that the above mentioned opinions "lend color to the

argument," though they did not actually so rule, that "in every case,

whatever the circumstances, one charged with crime, who is unable to

obtain counsel, must be furnished counsel by the State," the Court, in

Betts _v._ Brady,[824] decided in 1942, not only narrowed the scope of

the right of the accused to the "assistance of counsel," but also set at

rest any question as to the constitutional source from which the right

was derived. Offering State courts the following vague guide for

determining when provision of counsel is constitutionally required, the

Court declared that "the Fourteenth Amendment prohibits the conviction

and incarceration of one whose trial is offensive to the common and

fundamental ideas of fairness and right, and while want of counsel in a

particular case may result in a conviction lacking in such fundamental

fairness, we cannot say that the amendment embodies an inexorable

command that no trial for any offense, or in any court, can be fairly

conducted and justice accorded a defendant who is not represented by

counsel * * * Asserted denial of due process is to be tested by an

appraisal of the totality of facts in a given case. That which may, in

one setting, constitute a denial of fundamental fairness, shocking to

the universal sense of justice, may, in other circumstances, and in the

light of other considerations, fall short of such denial."[825]

Accordingly, an indigent farm laborer was deemed not to have been denied

due process of law when he was convicted of robbery by a Maryland county

court, sitting without a jury, which was not required by statute[826] to

honor his request for counsel and whose "practice," in fact was to

afford counsel only in murder and rape cases. Finally, the Court

emphatically rejected the notion, suggested, however faintly by the

older decisions, that the Fourteenth Amendment "incorporates the

specific guarantees found in the Sixth Amendment, although it

recognized that a denial of the rights stipulated in the latter

Amendment may in a given case amount to a deprivation of due

process."[827]

Having thus construed the due process clause of the Fourteenth Amendment

as not inclusive of the Sixth Amendment and as requiring no more than a

fair trial which, on occasion, may necessitate the protection of

counsel, the Court, in succeeding decisions rendered during the

interval, 1942-1946, proceeded to subject Betts _v._ Brady to the

"silent treatment." In Williams _v._ Kaiser[828] and Tomkins _v._

Missouri[829] two defendants pleaded guilty without counsel to the

commission in Missouri of capital offenses, one, to robbery with a

deadly weapon, and the second, to murder. Defendant, Williams contended

that, notwithstanding his request, the trial court did not appoint

counsel, whereas defendant, Tomkins alleged that he was ignorant of his

right to demand counsel under the Missouri statute. In ruling that the

defendants' petitions for _habeas corpus_ should not have been rejected

by Missouri courts without a hearing, the Supreme Court relied almost

entirely upon the quotations from Powell _v._ Alabama[830] previously

set forth herein; and reiterated that the right to counsel in felony

cases being protected by the Fourteenth Amendment, the failure of a

State court to appoint counsel is a denial of due process. "A layman,"

the Court added, "is usually no match for the skilled prosecutor whom he

confronts in the court room. He needs the aid of counsel lest he be the

victim of overzealous prosecutors, of the law's complexity, or of his

own ignorance or bewilderment."[831]

Nor was Betts _v._ Brady mentioned in the following pertinent decisions.

In House _v._ Mayo,[832] the Supreme Court held that the action of a

trial court in compelling a defendant to plead to an information

charging burglary without opportunity to consult with his counsel is a

denial of the constitutional right to counsel; and in Hawk _v._

Olson[833] the Court repeated this assertion, in connection with the

denial to a defendant accused of a murder of the same opportunity during

the critical period between his arraignment and the impaneling of the

jury. Both these opinions cited with approval the two previously

discussed Williams and Tomkins Cases; and in House _v._ Mayo the Court

declared without any explanation: "Compare Betts _v._ Brady with

Williams _v._ Kaiser and Tomkins _v._ Missouri."[834] A similar

performance by the Court is also discernible in Rice _v._ Olson,[835] in

which it ruled that a defendant, who pleads guilty to a charge of

burglary, is incapable adequately of making his own defense, and does

not understandingly waive counsel; he is entitled to the benefit of

legal aid, and a request therefor is not necessary. Also, on the basis

of unchallenged facts contradicting a prisoner's allegation that he had

been denied counsel; namely, that after his arraignment and plea of

guilty to a charge of robbery, counsel had noted an appearance for him

two days before the date of sentencing and had actively intervened in

his behalf on the latter date, a majority of the Court, in Canizio _v._

New York,[836] ruled that the right to counsel had not been withheld.

Without mentioning Betts _v._ Brady by name, the Court, in 1946,

returned to the fair trial principle enunciated therein when it held

that no deprivation of the constitutional right to the aid of counsel

was disclosed by the record in Carter _v._ Illinois.[837] That record

included only the indictment, the judgment on the plea of guilty to a

charge of murder, the minute entry bearing on the sentence, and the

sentence, together with a lengthy recital in the judgment to the effect

that when the defendant expressed a desire to plead guilty the Court

explained to him the consequence of such plea, his rights in the

premises, especially, his rights to have a lawyer appointed to defend

him and to be tried before a jury, and the degree of proof required for

an acquittal under a not guilty plea, but that the defendant persisted

in his plea of guilty. Emphasizing that this record was entirely wanting

in facts bearing upon the maturity or capacity of comprehension of the

prisoner, or upon the circumstances under which the plea of guilty was

tendered and accepted, the Supreme Court concluded that no inference of

lack of understanding, or ability to make an intelligent waiver of

counsel, could be drawn from the fact that the trial court did assign

counsel when it came to sentencing.[838] Applying the same doctrine, and

on this occasion at least citing Betts _v._ Brady, the Court, in De

Meerleer _v._ Michigan,[839] unanimously declared that the arraignment,

trial, conviction of murder, and sentence to life imprisonment, all on

the same day, of a seventeen-year old boy who was without legal

assistance, and was never advised of his right to counsel, who received

from the trial court no explanation of the consequences of his plea of

guilty, and who never subjected the State's witnesses to

cross-examination, effected a denial of constitutional "rights essential

to a fair hearing."

Even more conclusive evidence of the revival of the fair trial doctrine

of Betts _v._ Brady is to be found in the majority opinions contained in

Foster _v._ Illinois[840] and Gayes _v._ New York.[841] In the former

the Court ruled that where it appears that the trial court, before

accepting pleas of guilty to charges of burglary and larceny by

defendants, aged 34 and 58 respectively, advised each of his rights of

trial and of the consequences of such a plea, the fact that the record

reveals no express offer of counsel would not suffice to show that the

accused were deprived of rights essential to the fair hearing required

by the due process clause. Reiterating that the absolute right to

counsel accorded by the Sixth Amendment does not apply in prosecutions

in State courts, five of the Justices declared that all the due process

clause of the Fourteenth Amendment "exacts from the States is a

conception of fundamental justice" which is neither "satisfied by merely

formal procedural correctness, nor * * * confined by any absolute rule

such as that which the Sixth Amendment contains in securing to an

accused [in the federal courts] 'the Assistance of Counsel for his

defense.'"[842] On the same day, four Justices, with Justice Burton

concurring only in the result, held in Gayes _v._ New York,[843] that

one sentenced in 1941 as a second offender under a charge of burglary

was not entitled to vacation of a judgment rendered against him in

1938, when charged with the first offense, on the ground that when

answering in the negative the trial court's inquiry as to whether he

desired the aid of counsel, he did not understand his constitutional

rights. On his subsequent conviction in 1941, which took into account

his earlier sentence of 1938, the defendant was deemed to have had full

opportunity to contest the constitutionality of his earlier sentence.

Consistently with these two cases, the Court in Marino _v._ Ragen,[844]

decided later in the same year, held that the absence of counsel, in

conjunction with the following set of facts, operated to deprive a

defendant of due process. In this latter decision, the accused, an

18-year-old Italian immigrant, unable to understand the English

language, was convicted of murder and sentenced to life imprisonment on

a plea of guilty when, notwithstanding a recital in the record that he

was arraigned in open court and advised through interpreters, one of

whom was the arresting officer, of the meaning and effect of a "guilty"

plea, and that he signed a statement waiving a jury trial and pleading

guilty, the waiver was not in fact signed by him and no plea of guilty

actually had been entered.

In disposing of more recent cases embracing right to counsel as an

issue, the Court, either with or without citation of Betts _v._ Brady,

has consistently applied the fair trial doctrine. Thus, the absence of

counsel competent to advise a 15-year-old Negro boy of his rights was

one of several factors operating in Haley _v._ Ohio[845] to negative the

propriety of admitting in evidence a confession to murder and

contributing to the conclusion that the boy's conviction had resulted

from proceedings that were unfair. Dividing again on the same issues in

which they were in disagreement in Foster _v._ Illinois;[846] namely,

the applicability of Amendment Six to State criminal prosecutions and

the merits of the fair trial doctrine as expounded in Betts _v._ Brady,

five Justices in Bute _v._ Illinois[847] ruled that the due process

clause of the Fourteenth Amendment does not require a State court to

tender assistance of counsel, before accepting a plea of guilty to a

charge of indecent liberties with female children, the maximum penalty

for which is 20 years, from a 57-year-old man who was not a lawyer and

who received from the Court an explanation of the consequences and

penalties resulting from such plea. Unanimity was subsequently regained

in Wade _v._ Mayo[848] in which the Justices had before them the plight

of an 18-year-old boy, convicted on the charge of breaking and entering,

who was described by a federal district court as not a stranger in

court, having been convicted of prior offenses, but as still unfamiliar

with court procedure and not capable of representing himself adequately.

On the strength of these and other findings, the Supreme Court held that

where one charged with crime is by reason of age, ignorance, or mental

incapacity incapable of defending himself, even in a prosecution of a

relatively simple nature, the refusal of a State trial court to appoint

counsel at his request is a denial of due process, even though the law

of the State does not require such appointment.

Dissents were again registered in the following brace of decision which

a minority of the Justices declared their inability to reconcile. In the

first, Gryger _v._ Burke,[849] the Court held that when one, sentenced

to life imprisonment as a fourth offender under a State habitual

criminal act, had been arrested eight times for crimes of violence,

followed by pleas of guilty or conviction, and in two of such former

trials had been represented by counsel, the State's failure to offer or

to provide counsel for him on his plea to a charge of being a fourth

offender does not render his conviction and sentence as such invalid,

even though the Court may have misconstrued the statute as making a life

sentence mandatory rather than discretionary. Emphasizing that there

were "no exceptional circumstances * * * present," the majority asserted

that "it rather overstrains our credulity to believe that [such a

defendant would be ignorant] of his right [to request and] to engage

counsel." In the second, Townsend _v._ Burke,[850] the Supreme Court

declared that although failure of a State court to offer or to assign

counsel to one charged with the noncapital offenses of burglary and

robbery, or to advise him of his right to counsel before accepting a

plea of guilty may not render his conviction invalid for lack of due

process, the requirement is violated when, while disadvantaged by lack

of counsel who might have corrected the court's errors, defendant is

sentenced on the basis of materially untrue assumptions concerning his

criminal record.[851]

Concordant as to the results reached, if not always as to the reasoning

supporting them, are the Court's latest rulings. In Uveges _v._

Pennsylvania,[852] it was held that inasmuch as the record showed that a

State court did not attempt to make a 17-year-old youth understand the

consequences of his plea of guilty to four separate indictments

charging burglary, for which he could be given sentences aggregating 80

years, and that the youth was neither advised of his right to counsel

nor offered counsel at any time between arrest and conviction, due

process was denied him. Likewise, in Gibbs _v._ Burke[853] was

overturned, as contrary to due process, the conviction for larceny of a

man in his thirties who conducted his own defense, having neither

requested, nor having been offered counsel. On the authority of the

Uveges Case, accused's failure to request counsel, since it could be

attributed to ignorance of his right thereto, was held not to constitute

a waiver. Moreover, had the accused been granted the protection of

counsel, the latter might have been able to prevent certain prejudicial

rulings; namely, the introduction without objection of considerable

hearsay testimony, the error of the trial judge in converting a

prosecution witness into a defense witness, and finally, the injection

of biased statements into the judge's comments to the jury. And of the

same general pattern is the holding in Palmer _v._ Ashe,[854] another

Pennsylvania case, involving a petitioner who alleged that, as a youth

and former inmate at a mental institution, he was railroaded into prison

for armed robbery without benefit of counsel, on the representation that

he was charged only with breaking and entering. Reversing the State

court's denial of petitioner's application for a writ of habeas corpus,

the Court remanded the case, asserting that if petitioner's allegations

were proven, he was entitled to counsel. On the other hand, it was held

in Quicksall _v._ Michigan,[855] a State in which capital punishment

does not exist, that a defendant who had received a life sentence on a

plea of guilty entered without benefit of counsel, had "failed to

sustain the burden of proving such disregard of fundamental fairness

* * * as alone would * * * invalidate his sentence," not having

convinced the State court that he was ignorant of his right to counsel,

or that he had requested same, or that the consequences of his plea had

been misrepresented to him. Also, in Gallegos _v._ Nebraska,[856] in

which the petitioner had been convicted of manslaughter on a homicide

charge, a similar conclusion was reached in the face of the petitioner's

claim that the confession on the strength of which he was convicted had

been obtained from him by mistreatment, prior to the assignment of

counsel to him. Said the Court: "The Federal Constitution does not

command a State to furnish defendants counsel as a matter of course.

* * * Lack of counsel at State noncapital trials denies federal

constitutional protection only when the absence results in a denial to

accused of the essentials of justice."[857]

By way of summation, the Court in Uveges _v._ Pennsylvania[858] offered

the following comment on the conflicting views advanced by its members

on this issue of right to counsel. "Some members [minority] of the Court

think that where serious offenses are charged, failure of a court to

offer counsel in State criminal trials deprives an accused of rights

under the Fourteenth Amendment. They are convinced that the services of

counsel to protect the accused are guaranteed by the Constitution in

every such instance. _See_ Bute _v._ Illinois, 333 U.S. 640, dissent,

677-679. Only when the accused refuses counsel with an understanding of

his rights can the Court dispense with counsel.[859] Others of us

[majority] think that when a crime subject to capital punishment is not

involved, each case depends on its own facts. _See_ Betts _v._ Brady,

316 U.S. 455, 462. Where the gravity of the crime and other

factors--such as the age and education of the defendant,[860] the

conduct of the court or the prosecuting officials,[861] and the

complicated nature of the offense charged and the possible defenses

thereto[862]--render criminal proceedings without counsel so apt to

result in injustice as to be fundamentally unfair, the latter group

[majority] holds that the accused must have legal assistance under the

amendment whether he pleads guilty or elects to stand trial, whether he

requests counsel or not. Only a waiver of counsel, understandingly made,

justifies trial without counsel. The philosophy behind both of these

views is that the due process clause of the Fourteenth Amendment * * *

requires counsel for all persons charged with serious crimes, when

necessary for their adequate defense, in order that such persons may be

advised how to conduct their trials. The application of the rule varies

* * *" It would appear nevertheless that the statement quoted in the

previous paragraph from the Gallegos Case weakens this doctrine

somewhat. Nor is the Court's reply to the contention that such variation

in application "leaves the State prosecuting authorities uncertain as to

whether to offer counsel to all accused who are without adequate funds

and under serious charges," very reassuring: "We cannot offer a panacea

for the difficulty. * * * The due process clause is not susceptible of

reduction to a mathematical formula."[863]

Right to Trial by Jury

The contention that a right to trial by a common law jury of twelve men

in criminal cases was guaranteed by Amendment XIV was first rejected in

Maxwell _v._ Dow[864] on the basis of Hurtado _v._ California,[865]

where it was denied that the due process clause itself incorporated all

the rules of procedural protection having their origin in English legal

history. Accordingly, so long as all persons are made liable to be

proceeded against in the same manner, a state statute dispensing with

unanimity,[866] or providing for a jury of eight instead of twelve, in

noncapital criminal cases[867] is not unconstitutional; nor is one

eliminating employment of a jury when the defendant pleads guilty to no

less than a capital offense;[868] or permitting a defendant generally to

waive trial by jury.[869] In short, jury trials are no longer viewed as

essential to due process, even in criminal cases, and may be abolished

altogether.[870]

Inasmuch as "the purpose of criminal procedure is not to enable the

defendant to select jurors, but to secure an impartial jury," a trial of

a murder charge by a "struck" jury, chosen in conformity with a statute

providing that the court may select from the persons qualified to serve

as jurors 96 names, from which the prosecutor and defendant may each

strike 24, and that the remainder of which shall be put in the jury box,

out of which the trial jury shall be drawn in the usual way, is not

violative of due process. Such a method "is certainly a fair and

reasonable way of securing an impartial jury," which is all that the

defendant constitutionally may demand.[871] Likewise, the right to

challenge being the right to reject, not to select, a juror, a defendant

who is subjected at a single trial to two indictments, each charging

murder, cannot complain when the State limits the number of his

peremptory challenges to ten on each indictment instead of the twenty

customarily allowed at a trial founded upon a single indictment.[872]

Also, a defendant who has been convicted by a special, or "blue ribbon,"

jury cannot validly contend that he was thereby denied due process of

law.[873] In ruling that the defendant had failed to sustain his

contention that such a jury was defective as to its composition, the

Court conceded that "a system of exclusions could be so manipulated as

to call a jury before which defendants would have so little chance of a

decision on the evidence that it would constitute a denial of due

process" and would result in a trial which was a "sham or pretense." A

defendant is deemed entitled, however, to no more than "a neutral jury"

and "has no constitutional right to friends on the jury."[874] In fact,

the due process clause does not prohibit a State from excluding from the

jury certain occupational groups such as lawyers, preachers, doctors,

dentists, and enginemen and firemen of railroad trains. Such exclusions

may be justified on the ground that the continued attention to duty by

members of such occupations is beneficial to the community.[875]

Self-Incrimination--Forced Confessions

In 1908, in Twining _v._ New Jersey,[876] the Court ruled that neither

the historical meaning nor the current definition of the due process

clause of the Fourteenth Amendment included protection against

self-incrimination, which was viewed as unworthy of being rated "an

immutable principle of justice" or as a "fundamental right." The Fifth

Amendment embodying this privilege was held to operate to restrain only

the Federal Government; whereas the due process clause of the Fourteenth

Amendment was deemed to permit a State even to go so far as to

substitute the criminal procedure of the Civil Law, in which the

privilege against self-incrimination is unknown, for that of the Common

Law. Accordingly, New Jersey was within her rights in permitting a trial

judge, in a criminal proceeding, to instruct a jury that they might draw

an unfavorable inference from the failure of a defendant to comment on

the prosecutor's evidence.

Apart from a recent ineffectual effort of a minority of the Justices to

challenge the interpretation thus placed upon the due process clause of

the Fourteenth Amendment, the Court has yet to register any departure

from its ruling in Twining _v._ New Jersey.[877] In two subsequent

opinions the Court reasserted _obiter_ that "the privilege against

self-incrimination may be withdrawn and the accused put upon the stand

as a witness for the State." No "principle of justice so rooted in the

traditions and conscience of our people as to be ranked as

fundamental"[878] is violated by abolition of such privilege; nor is its

complete destruction likely to outrage students of our penal system,

many of whom "look upon * * * [this] immunity as a mischief rather than

a benefit, * * *"[879]

In subsequently disposing of similarly challenged State criminal

proceedings, the Court has applied almost exclusively the Fair Trial

doctrine. With only casual consideration of the intention of the framers

of the Fourteenth Amendment, or of the rejected proposition that the due

process clause thereof had imposed upon the States all the restraints

which the Bill of Rights had imposed upon the Federal Government, the

Court has simply endeavored to ascertain whether the accused enjoyed all

the privileges essential to a fair trial. Thus, without even admitting

that the privilege against self-incrimination was involved, all the

Justices agreed, in Brown _v._ Mississippi,[880] that the use of a

confession extorted by brutality and violence (undenied strangulation

and whipping by the sheriff aided by a mob) was a denial of due process,

even though coercion was not established until after the confession had

been admitted in evidence and defense counsel did not thereafter move

for its exclusion. Although compulsory processes of justice may be used

to call the accused as a witness and to require him to testify,

"compulsion by torture to extort a confession is a different matter.

* * * The rack and torture chamber may not be substituted for the

witness stand."[881] Again, in Chambers _v._ Florida[882] the Court,

with no mention of the privilege against self-incrimination, proclaimed

that due process is denied when convictions of murder are obtained in

State courts by the use of confessions extorted under the following

conditions: dragnet methods of arrest on suspicion without warrant and

protracted questioning (on the last day, from noon until sunset) in a

fourth floor jail where the prisoners were without friends or

counselors, and under circumstances calculated to break the strongest

nerves and stoutest resistance. Affirming that the Supreme Court is not

concluded by the finding of a jury in a State court that a confession in

a murder trial was voluntary, but determines that question for itself

from the evidence, the Justices unanimously declared that the

Constitution proscribes lawless means irrespective of the end, and

rejected the argument that the thumbscrew, the wheel, solitary

confinement, protracted questioning, and other ingenious means of

entrapment are necessary to uphold our laws.[883] Procuring a conviction

for a capital crime by use of a confession extracted by protracted

interrogation conducted in a similar manner was, on the authority of

Chambers _v._ Florida, condemned in White _v._ Texas;[884] and in

Lisenba _v._ California,[885] a case rendered inconclusive by

conflicting testimony, the Court remarked, by way of dictum, that "the

concept of due process would void a trial in which, by threats or

promises in the presence of court and jury, a defendant was induced to

testify against himself," or in which a confession is used which is

"procured * * * by fraud, collusion, trickery and subornation or

perjury."

In conformity with these rulings, the Court, in Ward _v._ Texas,[886]

set aside a conviction based upon a confession obtained, by methods of

coercion and duress, from a defendant who had been arrested illegally,

without warrant, by the sheriff of another county, and removed to a

county more than a hundred miles away, and who for three days, while

being driven from county to county, was questioned continuously by

various officers and falsely informed by them of threats of mob

violence. Similarly, in Ashcraft _v._ Tennessee,[887] the use in a State

court of a confession obtained near the end of a 36-hour period of

practically continuous questioning, under powerful electric lights, by

relays of officers, experienced investigators, and highly trained

lawyers was held to be violative of constitutional right by reason of

the inherently coercive character of such interrogation. Justice

Jackson, joined by Justices Frankfurter and Roberts, dissented on the

ground that the accused not only denied that the protracted questioning

"had the effect of forcing an involuntary confession from him" but that

he had ever confessed at all, a contention which reputable witnesses

contradicted. Referring to Justice Holmes's warning against "the ever

increasing scope given to the Fourteenth Amendment in cutting down * * *

the constitutional rights of the States."[888] Justice Jackson protested

that "interrogation _per se_ is not, * * *, an outlaw"; and that

inasmuch as all questioning is "'inherently coercive' * * *, the

ultimate question * * * [must be] whether the confessor was in

possession of his own will and self-control at the time of [his]

confession."[889]

This dissent was not without effect. In June 1944, in Lyons _v._

Oklahoma,[890] the Court finally handed down a ruling calculated

definitely to arrest the suspicion that had been developing that the use

of any confession made after arrest would render a trial

constitutionally defective. Here, six Justices refused to overturn a

holding of the Oklahoma Criminal Court of Appeals which labelled as

voluntary and usable a second confession obtained by other than coercive

means within twelve hours after the defendant had made a confession

admittedly under duress. The vice of coerced confessions, these Justices

asserted, was that they offended "basic standards of justice, not

because the victim had a legal grievance against the police, but because

declarations procured by torture are not premises from which a civilized

forum will infer guilt."[891] In Malinski _v._ New York,[892] however,

although in the opinion of four Justices there was conflicting evidence

as to the involuntary character of the confessions used, the Court

nevertheless overturned a conviction sustained by New York

tribunals.[893] Without finding it necessary to determine whether

succeeding oral and written confessions were the product of the coercion

"admittedly" applied in extracting an initial oral confession,[894] the

Court held that, even though other evidence might have sufficed to

convict the accused and notwithstanding the fact that the initial oral

confession was never put in evidence, the repeated indirect reference to

its content at the trial plus the failure to warn the jury not to

consider it as evidence[895] invalidated the proceeding giving rise to

the verdict.[896]

Of the remaining cases involving the issue of self-incrimination,

Adamson _v._ California[897] is especially significant because it

represents the high water mark of dissent in support of the contention

that the Bill of Rights, originally operative only against the Federal

Government, became limitations on State action by virtue of their

inclusion within the due process clause of the Fourteenth Amendment.

Here, the Court, speaking through Justice Reed, declared that the

California law which provides that if an accused elects to take the

witness stand and testify, he must then be prepared to undergo

impeachment of his testimony, through disclosure of his previous

convictions, and which also permits him to avoid such disclosure by

remaining silent, subject to comment on his failure to testify by the

Court and prosecuting counsel, does not involve such a denial of due

process as to invalidate a conviction in a State court. Inasmuch as

California law "does not involve any presumption, rebuttable or

irrebuttable, either of guilt or of the truth of any fact," and does not

alter the burden of proof, which rests upon the State, nor the

presumption of innocence in favor of the accused, it does not prevent

the accused from enjoying a fair trial, which is all that the due

process clause of the Fourteenth Amendment guarantees. Relying upon

Twining _v._ New Jersey[898] and Palko _v._ Connecticut,[899] the Court

reiterated that the "due process clause of the Fourteenth Amendment,

however, does not draw all the rights of the federal Bill of Rights

under its protection."[900]

In a concurring opinion concerning the scope of the protection afforded

by this clause of the Fourteenth Amendment, Justice Frankfurter

contended that further argument thereon is foreclosed by Twining _v._

New Jersey, a precedent, on which he commented as follows: "Decisions of

this Court do not have equal intrinsic authority. The _Twining_ Case

shows the judicial process at its best--comprehensive briefs and

powerful arguments on both sides, followed by long deliberation,

resulting in an opinion by Mr. Justice Moody which at once gained and

has ever since retained recognition as one of the outstanding opinions

in the history of the Court. After enjoying unquestioned prestige for

forty years, the _Twining_ Case should not now be diluted, even

unwittingly, either in its judicial philosophy or in its particulars. As

the surest way of keeping the _Twining_ Case intact, I would affirm this

case on its authority."

In dismissing as historically untenable the position adopted by Justice

Black, Justice Frankfurter further declared that: "The notion that the

Fourteenth Amendment was a covert way of imposing upon the States all

the rules which it seemed important to Eighteenth Century statesmen to

write into the Federal Amendments, was rejected by judges who were

themselves witnesses of the process by which the Fourteenth Amendment

became part of the Constitution. Arguments that may now be adduced to

prove that the first eight Amendments were concealed within the historic

phrasing of the Fourteenth Amendment were not unknown at the time of its

adoption. A surer estimate of their bearing was possible for judges at

the time than distorting distance is likely to vouchsafe. Any evidence

of design or purpose not contemporaneously known could hardly have

influenced those who ratified the Amendment. Remarks of a particular

proponent of the Amendment, no matter how influential, are not to be

deemed part of the Amendment. What was submitted for ratification was

his proposal, not his speech. * * * The Due Process Clause of the

Fourteenth Amendment has an independent potency, precisely as does the

Due Process Clause of the Fifth Amendment in relation to the Federal

Government. It ought not to require argument to reject the notion that

due process of law meant one thing in the Fifth Amendment and another in

the Fourteenth. The Fifth Amendment specifically prohibits prosecution

of an 'infamous crime' except upon indictment; it forbids double

jeopardy; it bars compelling a person to be a witness against himself in

any criminal case; it precludes deprivation of 'life, liberty, or

property, without due process of law * * *' Are Madison and his

contemporaries in the framing of the Bill of Rights to be charged with

writing into it a meaningless clause? To consider 'due process of law'

as merely a shorthand statement of other specific clauses in the same

amendment is to attribute to the authors and proponents of this

Amendment ignorance of, or indifference to, a historic conception which

was one of the great instruments in the arsenal of constitutional

freedom which the Bill of Rights was to protect and strengthen." Warning

that "a construction which * * * makes of" the due process clause of the

Fourteenth Amendment "a summary of specific provisions of the Bill of

Rights would, * * *, tear up by the roots much of the fabric of the law

in the several States," Justice Frankfurter, in conclusion, offers his

own appraisal of this clause. To him, the due process clause "expresses

a demand for civilized standards of law, [and] it is thus not a stagnant

formulation of what has been achieved in the past but a standard for

judgment in the progressive evolution of the institutions of a free

society." Accordingly "judicial judgment in applying the Due Process

Clause must move within the limits of accepted notions of justice and

* * * [should] not be based upon the idiosyncrasies of a merely personal

judgment. * * * An important safeguard against such merely individual

judgment is an alert deference to the judgment of the State court under

review."[901]

In dissenting Justice Black, who was supported by Justice Douglas,

attached to his opinion "an appendix which contains * * * [his] resume,

* * *, of the Amendment's history." It is his judgment "that history

conclusively demonstrates that the language of the first section of the

Fourteenth Amendment, taken as a whole, was thought by those responsible

for its submission to the people, and by those who opposed its

submission, sufficiently explicit to guarantee that thereafter no State

could deprive its citizens of the privileges and protections of the Bill

of Rights." A majority of the Court, he acknowledges resignedly, has

declined, however, "to appraise the relevant historical evidence of the

intended scope of the first section of the Amendment." In the instant

case, the majority opinion, according to Justice Black, "reasserts a

constitutional theory spelled out in Twining _v._ New Jersey, * * * that

this Court is endowed by the Constitution with boundless power under

'natural law' periodically to expand and contract constitutional

standards to conform to the Court's conception of what at a particular

time constitutes 'civilized decency' and 'fundamental liberty and

justice.' * * * [This] 'natural law' formula, [he further contends]

* * * should be abandoned as an incongruous excrescence on our

Constitution. * * * [The] formula [is] itself a violation of our

Constitution, in that it subtly conveys to courts, at the expense of

legislatures, ultimate power over public policies in fields where no

specific provision of the Constitution limits legislative power." In

conclusion, Justice Black expresses his fears as to "the consequences of

the Court's practice of substituting its own concepts of decency and

fundamental justice for the language of the Bill of Rights * * *"[902]

In all but one of the remaining cases, the Court sided with the accused

and supported his contention that the confession on which his conviction

was based had been procured by methods contrary to the requirements of

due process. The conviction of murder of a Negro boy of fifteen was

reversed by five Justices in Haley _v._ Ohio[903] on the ground that his

confession, which contributed to the verdict, was involuntary, having

been obtained by the police after several hours of questioning

immediately after the boy was arrested, during which interval the youth

was without friends or legal counsel. After having had his confession

reduced to writing, the boy continued to be held _incommunicado_ for

three days before being arraigned. "The age of petitioner, the

[midnight] hours when he was grilled, the duration of his quizzing, the

fact that he had no friend or counsel to advise him, the callous

attitude of the police towards his rights combine to convince us," the

Court declared, "that this was a confession wrung from a child by means

which the law should not sanction."[904] The application of duress being

indisputed, a unanimous Court, in Lee _v._ Mississippi,[905] citing as

authority all the preceding cases beginning with Brown _v._ Mississippi,

held that "a conviction resulting from such use of a coerced confession,

however, is no less void because the accused testified at some point in

the proceeding that he had never in fact confessed, voluntarily or

involuntarily. * * *, inconsistent testimony as to the confession * * *

cannot preclude the accused from raising * * * the issue * * * [that]

the Fourteenth Amendment * * * [voids a] conviction grounded * * * upon

a confession which is the product of other than reasoned and voluntary

choice." In Taylor _v._ Alabama,[906] however, a majority of the

Justices sustained the denial by a State appellate court, in which a

conviction had been affirmed, of leave to file in a trial court a

petition for a writ of error _coram nobis_ grounded upon the contention

that confessions and admissions introduced into evidence at the trial

had been obtained by coercion.[907] Five Justices declared that such

denial was not such arbitrary action as in itself to amount to a

deprivation of due process of law where the circumstances tended to show

that the petitioner's allegations of mistreatment, none of which were

submitted during the trial or the appeal,[908] were highly

improbable.[909]

Finally, in three decisions rendered on June 27, 1949, the Court

reversed three convictions of murder on the ground that they had been

founded entirely upon coerced confessions. The defendant in the first

case, Watts _v._ Indiana,[910] was held without arraignment, without the

aid of counsel or friends, and without advice as to his constitutional

rights from Wednesday until the following Friday, when he confessed.

During this interval, he was held much of the time in solitary

confinement in a cell with no place to sit or sleep except the floor,

and was subjected to interrogation daily, Sunday excepted, by relays of

police officers for periods ranging in duration from three to nine and

one-half hours. His incarceration without a prompt preliminary hearing

also was a violation of Indiana law. Similarly in conflict with State

law was the arrest without warrant and detention without arraignment for

five days of the accused in Turner _v._ Pennsylvania,[911] the second

case. During this period, Turner was not permitted to see friends,

relatives, or counsel, was never informed of his right to remain silent,

and was interrogated daily, though for briefer intervals than in the

preceding case. At his trial, the prosecuting attorney "admitted that a

hearing was withheld until interrogation had produced a confession." In

the third and last case of this group, Harris _v._ South Carolina,[912]

the defendant, an illiterate Negro, was apprehended in Tennessee on a

Friday on a warrant alleging no more than a theft of a pistol, and taken

to South Carolina on a Sunday. Without being informed of the contents of

the warrant or of the charge of murder on which he was being held,

without arraignment or advice as to his rights and without access to

family or counsel, the defendant was questioned daily by officers for

periods as long as 12 hours. In addition, he was warned that his mother

also might be arrested for handling stolen property.

In each of these cases there was dissent, and in none was the majority

able to record its views in a single opinion. Justice Murphy and Justice

Rutledge joined Justice Frankfurter, who filed a separate opinion in all

three cases, in declaring that "a confession by which life becomes

forfeit must be the expression of free choice. * * * When a suspect

speaks because he is overborne, it is immaterial whether he has been

subjected to a physical or a mental ordeal. * * * if * * * [his

confession] is the product of sustained pressure by the police it does

not issue from a free choice."[913] On the authority of Chambers _v._

Florida[914] and Ashcraft _v._ Tennessee,[915] Justice Black supported

the judgments reached in all three cases; but Justice Douglas, in

concurring, advocated the disposition of these cases in conformity with

a broader rule; namely that, "any confession obtained during * * * [a]

period of * * * unlawful detention"; that is during a period of custody

between arrest and arraignment, should be outlawed.[916] Justice

Jackson, who wrote an opinion applicable to all three cases, concurred

in the result in Watts _v._ Indiana, presumably on the basis of that

part of Justice Frankfurter's opinion therein which was founded "on the

State's admissions as to the treatment of Watts."[917] Emphasizing the

merit of deferring to the findings of trial court and jury on the issue

of the "voluntariness" of confessions on the ground that they have "the

great advantage of hearing and seeing the confessor and also the

officers whose conduct and bearing toward him is in question," Justice

Jackson dissented in Turner _v._ Pennsylvania[918] and Harris _v._ South

Carolina.[919] "If the right of interrogation be admitted," he declared,

"then * * * we must leave it to trial judges and juries and State

appellate courts to decide individual cases, unless they show some want

of proper standards of decision."[920] Without explanatory opinion,

Chief Justice Vinson and Justices Burton and Reed dissented in all three

cases.

Unreasonable Searches and Seizures

In National Safe Deposit Co. _v._ Stead,[921] decided in 1914, the Court

unequivocally declared that an unreasonable search and seizure committed

by State and local officers presented no federal question, inasmuch as

the Fourth Amendment does not apply to the States. Prior to that date,

the Court has passed upon this question obliquely in only a few

decisions,[922] in one of which it conceded for the sake of argument,

but without so deciding, that the due process clause of the Fourteenth

Amendment embraces in its generic terms a prohibition against

unreasonable searches. In two of these earlier cases the Court sustained

as consistent with due process the power of a State, in investigating

the conduct of corporations doing business within its limits, to demand

the production of corporate books and papers. The call for such papers

was deemed not to have been rendered unreasonable because, at the time

of the demand therefor, the corporation affected either temporarily or

permanently kept such documents in another jurisdiction. Nor was the

validity of the order to produce such materials viewed as having been

impaired by the fact that it sought to elicit proof not only as to the

liability of the corporation but also, evidence in its possession

relevant to its defense.

In its most recent opportunity to review the question whether the due

process clause of the Fourteenth Amendment precludes admission in a

State court of relevant evidence obtained by an unreasonable search and

seizure,[923] the Court apparently ruled in the negative; but Justice

Frankfurter, speaking for the majority, did not limit himself to a

repetition of the conclusions stated by him in Adamson _v._

California;[924] namely, that the due process clause of the Fourteenth

Amendment did not incorporate the first eight Amendments of the

Constitution, and, conformably to Palko _v._ Connecticut,[925] exacts no

more from a State than is "implicit in 'the concept of ordered

liberty.'" He also proclaimed that: "The security of one's privacy

against arbitrary intrusion by the police--which is at the core of the

Fourth Amendment--is basic to a free society. It is therefore implicit

in 'the concept of ordered liberty' and as such enforceable against the

States through the due process clause."[926] Such language appears to

effect the very absorption into the Fourteenth Amendment which Justice

Frankfurter rejects in the Adamson case; but he concluded by adding that

as long as "a State [does not] affirmatively * * * sanction * * *

[arbitrary] police incursion into privacy"; that is, as long as its

police are deterred from making searches without authority of law by

virtue of such internal discipline as an alert public opinion may induce

and by reason of the statutory or common law remedies which the victims

of such illegal searches may invoke, a State, without running counter to

the due process clause, may employ at a trial incriminating evidence

obtained by unlawful search and seizure. The fact that most of the

English-speaking world, including 30 States and the British Commonwealth

of Nations, does not regard the exclusion of evidence thus obtained, as

vital to the protection of the right of privacy is interpreted by the

Justice as lending abundant support to the merit of his position.[927]

Without departing from his previously adopted position which he

restated in his dissenting opinion in Adamson _v._ California;[928]

namely, that the due process clause of the Fourteenth Amendment embraces

the Fourth Amendment's prohibition of unreasonable searches and

seizures, Justice Black concurred in the result on the ground that the

exclusionary rule, whereby evidence procured in an illegal search and

seizure is not admissible in a federal court, is "not a command of the

Fourth Amendment but is a judicially created rule of evidence which

Congress might negate."[929] Justices Douglas, Murphy, and Rutledge, in

separate dissenting opinions, all declared that the Fourth Amendment was

applicable to the States and that "evidence obtained in violation of it

must be excluded in State prosecutions as well as in federal

prosecutions, * * *."[930] Attacking Justice Frankfurter's method of

approach, Justice Murphy declared that the Court should not "decide due

process questions by simply taking a poll of the rules in various

jurisdictions, * * *" and agreed with Justice Rutledge that unless

illegally obtained evidence is excluded, no effective sanction "exists

to deter violations of the search and seizure clause."

In two recent cases, both argued the same day, a nearly unanimous Court

reached opposite results.[931] In the first the outcome of the Wolf case

was repeated. The Court, speaking by Justice Frankfurter, refused to

enjoin the use, in State criminal proceedings against them in New Jersey

of evidences claimed to have been obtained by unlawful search by State

police. Said Justice Frankfurter, "If we were to sanction this

intervention, we would expose every State criminal prosecution to

insupportable disruption. Every question of procedural due process of

law--with its far flung and undefined range--would invite a flanking

movement against the system of State courts by resort to the federal

forum * * *"[932] The facts in the second case were as follows: state

officers, on the basis of "some information" that petitioner was selling

narcotics, entered his home and forced their way into his wife's

bedroom. When asked about two capsules lying on a bedroom table,

petitioner put them into his mouth and swallowed them. He was then taken

to a hospital, where an emetic was forced into his stomach with the

result that he vomited them up. Later they were offered in evidence

against him. Again Justice Frankfurter spoke for the Court, while

reiterating his preachments regarding the tolerance claimable by the

States under the Fourteenth Amendment[933] he held that methods

offensive to human dignity were ruled out by the due process

clause.[934] Justices Black and Douglas concurred in opinions in which

they seized the opportunity to reiterate once more their position in

Adamson _v._ California.[935]

Conviction Based on Perjured Testimony

When a conviction is obtained by the presentation of testimony known to

the prosecuting authorities to have been perjured, the constitutional

requirement of due process is not satisfied. That requirement "cannot be

deemed to be satisfied by mere notice and hearing if a State has

contrived a conviction through the pretense of a trial which in truth is

but used as a means of depriving a defendant of liberty through a

deliberate deception of court and jury by the presentation of testimony

known to be perjured. Such a contrivance * * * is as inconsistent with

the rudimentary demands of justice as is the obtaining of a like result

by intimidation."[936] This principle, as originally announced, was no

more than a dictum uttered by the Court in disposing of Tom Mooney's

application for a writ of _habeas corpus_, filed almost eighteen years

after his conviction, and founded upon the contention that the verdict

of his guilt was made possible solely by perjured testimony knowingly

employed by the prosecutor who "deliberately suppressed evidence which

would have impeached and refuted the testimony thus given against

him."[937]

On the authority of the preceding case, and without qualification, the

Court subsequently applied this principle in Hysler _v._ Florida,[938]

Pyle _v._ Kansas[939] and White _v._ Ragen.[940] In the first case, the

Supreme Court concurred in the judgment of the Florida appellate court

denying a petition for leave to apply to a trial court for a writ of

_coram nobis_. Supporting the petition filed by Hysler, the accused,

were affidavits signed by one of two codefendants on the eve of his

execution for participation in the same crime and stating that the two

codefendants had testified falsely against Hysler because they had been

"'coerced, intimidated, beaten, threatened with violence and otherwise

abused and mistreated' by the police and were 'promised immunity from

the electric chair' by the district attorney." Having made "an

independent examination of the affidavits upon which * * * [Hysler's]

claim was based," a majority of the Justices concluded that the Florida

appellate court's finding that Hysler's proof was insubstantial and did

not make out a _prima facie_ case was justified. "That in the course of

* * * years witnesses die or disappear, that memories fade, that a sense

of responsibility may become attenuated, that [recantation] * * * on the

eve of execution * * * [is] not unfamiliar as a means of relieving

others or as an irrational hope for self * * * are relevant" to the

determination by the Florida court that "such a belated disclosure" did

not spring "from the impulse for truth-telling" and was "the product of

self-delusion * * * [and] artifice prompted by the instinct of

self-preservation."[941]

Relying largely on the failure of the State to answer allegations in a

prisoner's application for a write of _habeas corpus_, which application

recited that persons named in supporting affidavits and documents were

coerced to testify falsely, and that testimony of certain other persons

material to the prisoner's defense was suppressed under threat and

coercion by the State, the Court, in Pyle _v._ Kansas[942] reversed the

Kansas court's refusal to issue the writ. Inasmuch as the record of the

prisoner's conviction did "not controvert the charges that perjured

evidence was used, and that favorable evidence was suppressed with the

knowledge" of the authorities, the case was remanded in order that the

prisoner might enjoy that to which he was entitled; namely, a

determination of the verity of his allegations. Similarly, in White _v._

Ragen,[943] the Court declared that since a prisoner's petition to a

State court for release on _habeas corpus_ had been dismissed without

requiring the State to answer allegations supporting the petition;

namely, that the conviction was obtained by the use of false testimony

procured by bribery of two witnesses by the prosecutor, must be assumed

to be true. Accordingly, the petitioner's contentions were deemed

sufficient to make out a _prima facie_ case of violation of

constitutional rights and adequate to entitle him to invoke corrective

process in a State court.

Confrontation; Presence of the Accused; Public Trial

On the issue whether the privileges of presence, confrontation and

cross-examination face to face, assured to a defendant in a federal

trial by the Sixth Amendment, are also guaranteed in State criminal

proceedings, the Court thus far has been unable to formulate an enduring

and unequivocal answer. At times it has intimated, as in the following

utterance, that the enjoyment of all these privileges is essential to

due process. "The personal presence of the accused, from the beginning

to the end of a trial for felony, involving life or liberty, as well as

at the time final judgment is rendered against him, may be, and must be

assumed to be, vital to the proper conduct of his defence, and cannot be

dispensed with."[944] Notwithstanding this early assumption, the

Supreme Court, fourteen years later, sustained a Kentucky court which

approved the questioning, in the absence of the accused and his counsel,

of a juror whose discharge before he was sworn had been demanded.[945]

Inasmuch as no injury to substantial rights of the defendant was deemed

to have been inflicted by his occasional absence during a trial, no

denial of due process was declared to have resulted from the acceptance

by the State court of the defendant's waiver of his right to be present.

In harmony with the latter case is Felts _v._ Murphy,[946] which

contains additional evidence of an increasing inclination on the part of

the Court to treat as not fundamental the rights of presence,

confrontation, and cross-examination face to face. The defendant in

Felts _v._ Murphy proved to be so deaf that he was unable to hear any of

the testimony of witnesses, and had never had the evidence repeated to

him. While regretting that the trial court has not had the testimony

read or repeated to the accused, the Supreme Court held that a deaf

person is not deprived of due process of law because he had not heard a

word of the evidence. It also did not overlook the fact the defendant

"made no objection, asked for nothing, and permitted his counsel to take

his own course."

That the presence of the accused may be dispensed with at various stages

of criminal proceedings was further conceded by the Court in Frank _v._

Mangum,[947] wherein it held that the presence of the defendant when the

verdict is rendered is not essential, and, accordingly, that a rule of

practice allowing the accused to waive it and which bound him by that

waiver did not effect any unconstitutional deprivation. Enumerating many

departures from common law procedure respecting jury trials, including

provisions waiving the presence of an accused during portions of a

trial, the Court emphasized that none of these changes had been

construed as conflicting with the Fourteenth Amendment. More recently,

the Court, sustained, by only a five-to-four vote, however, a conviction

for murder where the trial court rejected the defendant's request that

he be present at a view of the scene of the murder to which the jury had

been taken.[948] Acknowledging that it had never squarely held, though

it now assumed, that "the privilege to confront one's accusers and

cross-examine them face to face" in State court prosecutions "is

reinforced by the Fourteenth Amendment," the majority devised the

following standard for disposing of similar cases in the future. "In a

prosecution for a felony," five Justices declared, "the defendant has

the privilege under the Fourteenth Amendment to be present in his own

person whenever his presence has a relation, reasonably substantial, to

the fulness of his opportunity to defend against the charge. * * * The

Fourteenth Amendment does not assume to a defendant the privilege to be

present [when] * * * presence would be useless, or the benefit but a

shadow. * * * The presence of a defendant is a condition of due process

to the extent that a fair and just hearing would be thwarted by his

absence, and to that extent only." Employing this standard of appraisal,

the majority therefore concluded that no harm or damage had been done to

the accused by reason of his failure to be present when the jury viewed

the site of the murder.[949]

To what extent, consistently with due process, States may authorize the

conduct, after conviction and sentence, of nonadversary proceedings from

which the accused has been excluded and denied the privilege of

confrontation and cross-examination, has been examined by the Court in

two recent cases. In Williams _v._ New York,[950] the Supreme Court

rejected the contention that the due process clause requires that a

person convicted of murder be permitted to cross-examine probation

officers as to his prior criminal record when the trial judge, in the

exercise of discretion vested in him by law, considers such information,

obtained outside the courtroom, in determining whether to abide by a

jury's recommendation of life imprisonment or to impose a death

sentence. Emphasizing the distinction between evidentiary rules

applicable to the conduct of criminal trials, which are confined to the

narrow issue of guilt, and sentencing procedures which pertain to the

determination of the type and extent of punishment after the issue of

guilt has been decided, the Court disposed of the petitioner's appeal by

declaring that, "modern concepts individualizing punishment have made it

all the more necessary that a sentencing judge not be denied an

opportunity to obtain pertinent information by a requirement of rigid

adherence to restrictive rules of evidence properly applicable to the

trial."[951] By a similar process of reasoning, in Solesbee _v._

Balkcom,[952] the Court sustained a Georgia statutory procedure granting

the governor discretionary authority, with the aid of physicians

appointed by himself, to determine, without opportunity for an adversary

hearing or for judicial review, whether a condemned convict has become

insane and, if so, whether he should be committed to an insane asylum.

Likening the function thus vested in the governor to the power of

executive clemency, the Supreme Court reiterated that "trial procedure

safeguards are not applicable to the process of sentencing," and

concluded with the observation that the Georgia procedure is amply

supported by "the universal common-law principle that upon a suggestion

of insanity after sentence, the tribunal charged with responsibility

must be vested with broad discretion in deciding whether evidence shall

be heard. * * * The heart of the common-law doctrine has been that a

suggestion of insanity after sentence is an appeal to the conscience and

sound wisdom of the particular tribunal which is asked to postpone

sentence."[953]

When employed in the conduct of the trial, however, summary procedures

such as those examined in the preceding two decisions invariably elicit

judicial condemnation. Thus, when a Michigan judge proceeding as a

one-man grand jury concluded that a witness had given false and evasive

testimony, not on the basis of anything inherent in the testimony

itself, but at least in part upon its inconsistency with other testimony

given by a preceding witness, and immediately thereupon suspended his

investigation, and committed the witness to jail for contempt, such

summary commitment, in the absence of a showing that it was necessary to

prevent demoralization of the judge's authority, was held to constitute

a denial of due process. The guaranty of that clause forbids the

sentencing of an accused person to prison without a public trial; that

is, without a day in court, reasonable notice of the charges, and an

opportunity to be heard in one's defense by cross-examining other

witnesses, or by summoning witnesses to refute the charges against

him.[954]

On the other hand, when the alleged contempt is committed, not within

the confines of a secret grand jury proceeding, but in open court, is

readily observable by the presiding judge, and constitutes an open and

immediate threat to orderly judicial procedure and to the court's

authority, the offended tribunal is constitutionally empowered summarily

to punish without notice, testimony, or hearing. Thus in Fisher _v._

Pace,[955] albeit with the concurrence of only five Justices, the Court

sustained a Texas court's conviction for contempt, with progressive

increase of penalty from a $25 to $50 to $100 fine plus three days in

jail, of a trial attorney who, despite judicial admonition, persisted in

conveying to the jury, in a workmen's compensation case, information not

for their consideration. Conceding that "there must be adequate facts to

support an order for contempt," the majority declared that the Texas

appellate court's finding in the affirmative, after evaluation of the

facts, should not be overturned inasmuch as the Supreme Court, in

examining the transcript of the record, could not derive therefrom an

adequate picture of the courtroom scene nor discern therein "such

elements of misbehavior as expression, manner of speaking, bearing, and

attitude of * * * [the attorney]." The fact that the bench was guilty of

"mildly provocative language" was deemed insufficient to excuse the

conduct of the attorney.[956]

Trial by Impartial Tribunal

Inasmuch as due process implies a tribunal both impartial and mentally

competent to afford a hearing, it follows that the subjection of a

defendant's liberty or property to the decision of a court, the judge of

which has a direct, personal, substantial pecuniary interest in

rendering a verdict against him, is violative of the Fourteenth

Amendment.[957] Compensating an inferior judge for his services only

when he convicts a defendant may have been a practice of long-standing,

but such a system of remuneration, the Court declared, never became "so

embedded by custom in the general practice either at common law or in

this country that it can be regarded as due process of law. * * *"[958]

However, a conviction before a mayor's court does not become

constitutionally defective by reason of the fact that the fixed salary

of the mayor is paid out of the fund to which the fines imposed by him

contribute.[959]

Obviously, the attribute of impartiality is lacking whenever the judge

and jury are dominated by a mob. "If the jury is intimidated and the

trial judge yields, and so that there is an actual interference with the

course of justice, there is, in that court, a departure from due process

of law. * * *"[960] But "if * * * the whole proceeding is a mask--* * *

[if the] counsel, jury and judge * * * [are] swept to the fatal end by

an irresistible wave of public passion, and * * * [if] the State Courts

failed to correct the wrong, neither perfection in the machinery for

correction nor the possibility that the trial court and counsel saw no

other way of avoiding an immediate outbreak of the mob can prevent"

intervention by the Supreme Court to secure the constitutional rights of

the defendant.[961]

Insofar as a criminal trial proceeds with a jury, it is part of the

American tradition to contemplate not only an impartial jury but one

drawn from a cross-section of the community. This has been construed as

requiring that prospective jurors be selected by court officials without

systematic and intentional exclusion of any group, even though it is not

necessary that every jury contain representatives of all the economic,

social, religious, racial, political, and geographical groups of the

community.[962]

Other Attributes of a Fair Trial

"Due process of law," the Supreme Court has observed, "requires that the

proceedings shall be fair, but fairness is a relative, not an absolute

concept. * * * What is fair in one set of circumstances may be an act of

tyranny in others."[963] Conversely, "as applied to a criminal trial,

denial of due process is the failure to observe that fundamental

fairness essential to the very concept of justice. In order to declare a

denial of it * * * [the Court] must find that the absence of that

fairness fatally infected the trial; the acts complained of must be of

such quality as necessarily prevents a fair trial."[964] And on another

occasion the Court remarked that "the due process clause," as applied in

criminal trials "requires that action by a State through any of its

agencies must be consistent with the fundamental principles of liberty

and justice which lie at the base of our civil and political

institutions, [and] which not infrequently are designated as 'the law of

the land.'"[965]

Basic to the very idea of free government and among the immutable

principles of justice which no State of the Union may disregard is the

necessity of due "notice of the charge and an adequate opportunity to be

heard in defense of it."[966] Consequently, when a State appellate court

affirms a conviction on the ground that the information charged, and the

evidence showed a violation of Sec. 1 of a penal law of the State,

notwithstanding that the language of the information and the

construction placed upon it at the trial clearly show that an offense

under Sec. 2 of such law was charged, that the trial judge's

instructions to the jury were based on Sec. 2, and that on the whole

case it was clear that the trial and conviction in the lower court were

for the violation of Sec. 2, not Sec. 1, such appellate court in effect

is convicting the accused of a charge on which he was never tried, which

is as much a violation of due process as a conviction upon a charge that

was never made.[967] On the other hand, a prisoner who, after having

been indicted on a charge of receiving stolen goods, abides by the

prosecutor's suggestion and pleads guilty to the lesser offense of

attempted second degree grand larceny, cannot later contend that a

judgment of guilty of the latter offense was lacking in due process in

that it amounted to a conviction of a crime for which he had never been

indicted. In view of the "close kinship between the offense of larceny

and that of receiving stolen property * * *, when related to the same

stolen goods, the two crimes may fairly be said 'to be connected with

the same transaction.'" It would be therefore, the Court concluded, "an

exaltation of technical precision to an unwarranted degree to say that

the indictment here did not inform the petitioner that he was charged

with the substantial elements of the crime of larceny." Under these

circumstances he must be deemed to have been given "reasonable notice

and information of the specific charge against him and a fair hearing in

open court."[968]

Excessive Bail, Cruel and Unusual Punishment, Sentence

The commitment to prison of a person convicted of crime, without giving

him an opportunity pending an appeal, to furnish bail, does not violate

the due process clause of the Fourteenth Amendment.[969] Likewise, a

State, notwithstanding the limitations of that clause, retains a wide

discretion in prescribing penalties for violation of its laws.

Accordingly, a sentence of fourteen years' imprisonment for the crime of

perjury has not been viewed as excessive nor as effecting any

unconstitutional deprivation of the defendant's liberty;[970] nor has

the imposition of successively heavier penalties upon "repeaters" been

considered as partaking of a "cruel and unusual punishment."[971]

In an older decision, Ex parte Kemmler,[972] rendered in 1890, the

Supreme Court rejected the suggestion that the substance of the Eighth

Amendment had been incorporated into the due process clause of the

Fourteenth Amendment, but did intimate that the latter clause would

invalidate punishments which would involve "torture or a lingering

death," such "as burning at the stake, crucifixion, breaking on the

wheel, and the like." Holding that the infliction of the death penalty

by electrocution was comparable to none of the latter, the Court refused

to interfere with the judgment of the State legislature that such a

method of executing the judgment of a court was humane. More recently,

in Louisiana ex rel. Francis _v._ Resweber,[973] five members of the

Court reached a similar conclusion as to the restraining effect of the

due process clause of the Fourteenth Amendment when, assuming, "but

without so deciding" that violations of the Eighth Amendment as to cruel

and unusual punishments would also be violative of that clause, they

upheld a subsequent proceeding to execute a sentence of death by

electrocution after an accidental failure of equipment had rendered an

initial attempt unsuccessful.[974]

Double Jeopardy

In none of the pertinent cases considered prior to 1937 was the Supreme

Court able to discern the existence of any factual situation amounting

to double jeopardy, and accordingly it was never confronted with the

necessity of determining whether the guarantee that no person be put

twice in jeopardy of life or limb, expressed in the Fifth Amendment as a

limitation against the Federal Government, had been absorbed in the due

process clause of the Fourteenth Amendment. Thus, in Dreyer _v._

Illinois,[975] after declaring that a retrial after discharge of a hung

jury did not subject a defendant to double jeopardy, the Court concluded

as follows: If "* * * what was said in United States _v._ Perez [(9

Wheat. 579 (1824)) embracing a similar set of facts], * * * is adverse

to the contention of the accused that he was put twice in jeopardy,"

then "we need not now express an opinion" as to whether the Fourteenth

Amendment embraces the guarantee against double jeopardy. Similarly, in

Murphy _v._ Massachusetts[976] and Shoener _v._ Pennsylvania[977] the

Court held that where the original conviction of the prisoner was, on

appeal, construed by the State tribunal to be legally defective and

therefore a nullity, a subsequent trial, conviction, and sentence of the

accused deprived him of no constitutional right, notwithstanding the

fact that under the invalidated original conviction, the defendant had

spent time in prison. In both instances the Court found it unnecessary

to discuss "any question of a federal nature." With like dispatch, "the

propriety of inflicting severer punishment upon old offenders" was

sustained on the ground that they were not being "punished * * * [a]

second time for the earlier offense, but [that] the repetition of

criminal conduct aggravates their guilt and justifies heavier penalties

when they are again convicted."[978]

In Palko _v._ Connecticut,[979] however, the Court appeared to have

been presented with issues, the disposition of which would preclude

further avoidance of a decision as to whether the double jeopardy

provision of the Fifth Amendment had become operable as a restraint upon

the States by reason of its incorporation into the due process clause of

the Fourteenth Amendment. By the terms of the Connecticut statute at

issue, the State was privileged to appeal any question of law arising

out of a criminal prosecution, and did appeal a conviction of second

degree murder and sentence to life imprisonment of one Palko, who had

been charged with first degree murder. Obtaining a reversal, the State

prosecuted Palko a second time and won a conviction of first degree

murder and sentence to death. In response to the petitioner's

contentions that a retrial under one indictment would subject him to

double jeopardy in violation of the Fifth Amendment, if the prosecution

were one on behalf of the United States and "that whatever is forbidden

by the Fifth Amendment is forbidden by the Fourteenth also,"[980] eight

Justices[981] replied that the State statute did not subject him to

double jeopardy "so acute and shocking that our polity will not endure

it"; nor did "it violate those 'fundamental principles of liberty and

justice which lie at the base of all our civil and political'

institutions.'" Consistently with past behavior, the Court thus refused

to assert that the defendant had been subjected to treatment of the type

prohibited by the double jeopardy clause of the Fifth Amendment; nor did

it, on the other hand, repudiate the possibility of situations in which

the Fourteenth Amendment would prevent the States from inflicting double

jeopardy. Whether a State is prohibited by the latter amendment, after a

trial free from error, from trying the accused over again or from

wearing out the accused "by a multitude of cases with accumulated

trials" were questions which the Court reserved for future disposition.

Subsequently, in Louisiana ex rel. Francis _v._ Resweber,[982] a

majority of the Court assumed, "but without so deciding, that violation

of the principles of the Fifth Amendment * * *, as to double jeopardy

* * *, would be violative of the due process clause of the Fourteenth

Amendment," and then concluded that the Palko case was decisive, there

being "no difference from a constitutional point of view between a new

trial for error of law at the instance of the State that results in a

death sentence instead of imprisonment for life and an execution" by

electrocution that follows after "an accidental failure in equipment had

rendered a previous attempt at execution ineffectual."

Rights of Prisoners

Access to the Courts.--A State prison regulation requiring that

all legal papers sought to be filed in court by inmates must first be

submitted to the institution for approval and which was applied so as to

obstruct efforts of a prisoner to petition a federal court for a writ of

_habeas corpus_ is void. Whether a petition for such writ is properly

drawn and what allegations it must contain are questions which a federal

court alone determines.[983] Equally subject to condemnation is the

practice of the warden of a State penitentiary who denied prisoners

access to the courts unless they procured counsel to represent

them.[984]

Appeals; Corrective Process.--Rehearing, new trials, and

appeals are not considered to be essential to due process; and a State

is forbidden by no provision of the Constitution from vesting in one

tribunal the final determination of legal questions. Consequently, a

review by an appellate court of a final judgment in a criminal case,

irrespective of the gravity of the offense, is wholly within the

discretion of the State to allow or not to allow;[985] and, if granted,

may be accorded by the State upon such terms as in its wisdom may be

deemed proper.[986] "Wide discretion must be left to the States for the

manner of adjudicating a claim that a conviction is unconstitutional;

* * * and so long as the rights under the * * * Constitution may be

pursued, it is for a State and not for * * * [the Supreme] Court [of the

United States] to define the mode by which they may be vindicated. * * *

A State may decide whether to have direct appeals * * *, and if so under

what circumstances * * * may provide that the protection of

[constitutional] rights * * * be sought through the writ of _habeas

corpus_ or _coram nobis_, [or] * * * may afford remedy by a simple

motion brought either in the Court of original conviction or at the

place of detention."[987]

However, if the tribunal of first instance fails to accord due process

such as occurs when the Court in which a conviction is obtained is

dominated by a mob, the State must supply corrective process. Moreover,

when such process is made available, the corrective proceedings in the

reviewing or appellate tribunal being no less a part of the process of

law under which a defendant is held in custody, become subject to

scrutiny on the occasion of any determination of an alleged

unconstitutional deprivation of life or liberty.[988] Such examination

may lead unavoidably to substantial federal intervention in State

judicial proceedings, and sensitive, no doubt, to the propriety

thereof,[989] the Supreme Court, almost until Brown _v._

Mississippi,[990] decided in 1936, manifested an unusual reluctance to

indulge in an adverse appraisal of the adequacy of a State's corrective

process.

Prior to the latter date, the Court was content to assume as it did in

Frank _v._ Mangum,[991] decided in 1915, that inasmuch as the

proceedings in the State appellate court formally appeared to be

sufficient to correct errors committed by a trial court alleged to have

been intimidated by a mob, the conclusion by that appellate court that

the trial court's sentence of execution should be affirmed was ample

assurance that life would not be forfeited without due process of law.

Apparently in observance of a principle of comity, whereunder a State

appellate court's holding, though acknowledged as not binding, was

deemed entitled to utmost respect, the Court persisted in its refusal to

make an independent examination of allegations of a denial of due

process. Eight years later, in Moore _v._ Dempsey,[992] a case involving

similar allegations of mob domination, the Court, on this occasion

speaking through Justice Holmes who had dissented in the preceding

decision, ordered the federal district court, in which the defendants

had petitioned for a writ of _habeas corpus_ and which had sustained

the State of Arkansas's demurrer thereto, to make an independent

investigation of the facts, notwithstanding that the Arkansas appellate

court had ruled that, in view of the legally sufficient evidence on

which the verdict was based and the competent counsel defending the

accused, the allegations of mob domination did not suffice to void the

trial.

Indubitably, Moore _v._ Dempsey marked the abandonment of the Supreme

Court's deference, founded upon considerations of comity, to decisions

of State appellate tribunals on issues of constitutionality and the

proclamation of its intention no longer to treat as virtually conclusive

pronouncements by the latter that proceedings in a trial court were

fair. However, the enduring character of this precedent was depreciated

by the Court's insistence that Moore _v._ Dempsey was decided

consistently[993] with Frank _v._ Mangum; and it was not until the later

holding in Brown _v._ Mississippi in 1936 and the numerous decisions

rendered conformably thereto in the decade following that all

uncertainty was dispelled as to the Supreme Court's willingness to

engage in its own independent examination of the constitutional adequacy

of trial court proceedings.

DUE PROCESS: MISCELLANEOUS

Appeals

In every case a point is reached where litigation must cease; and what

that point is can best be determined by the State legislature. The power

to render a final judgment must be lodged somewhere; and there is no

provision in the Federal Constitution which forbids a State from

granting to a tribunal, whether called a court or an administrative

board, the final determination of a legal question. Neither in

administrative nor judicial proceedings does the due process clause

require that the participants be entitled as of right to rehearings, new

trials, or appeals.[994]

Federal Review of State Procedure

The Fourteenth Amendment does not impair the authority of the States to

determine finally, according to their settled usages and established

modes of procedure, issues which do not involve any right secured by the

Constitution, an act of Congress, or a treaty. As long as a local

tribunal acts in consonance with the Constitution, laws and procedure of

its own State and as long as said Constitution and laws are so

interpreted as not to violate due process, it is only in exceptional

circumstances that the Supreme Court would feel justified in

intervening. Neither by intention nor by result has the Fourteenth

Amendment transformed the Supreme Court into a court of general review

to which questions of general justice or equitable consideration arising

out of the taking of property may be brought for final

determination.[995]

Insofar as mere irregularities or errors in matters of practice under

State procedure do not affect constitutional right,[996] they are

matters solely for consideration by the appropriate State tribunal.[997]

The Constitution does not guarantee that the decisions of State courts

shall be free from error;[998] nor does the due process clause give the

Supreme Court jurisdiction to review mere mistakes of law concerning

nonfederal matters alleged to have been committed by a State court.[999]

Accordingly, when statutes authorizing the form of the indictment used

are not obviously violative of fundamental constitutional principles,

any question as to the sufficiency of the indictment employed is for a

State court to determine.[1000] Likewise, the failure of a State to

establish a county appellate court as required by the State constitution

cannot support any appeal founded upon a denial of due process.[1001]

Moreover, if a State court errs in deciding what the common law is,

without, however, denying any constitutional right, the litigant

adversely affected is not deprived of any liberty or property without

due process of law.[1002] Also, whenever a wrong judgment is rendered,

property is taken when it should not have been; yet whatever the ground

may be, if the mistake is not so gross as to be impossible in a rational

administration of justice, it is no more than the imperfection of man,

not a denial of constitutional rights.[1003] In conclusion, the decision

of a State court upon a question of local law, however wrong, is not an

infraction of the Fourteenth Amendment merely because it is wrong. It is

not for the Supreme Court to determine whether there has been an

erroneous construction of a State statute or the common law; nor does

the Constitution impose any impediment to the correction or modification

by a State court of erroneous or older constructions of local law

embraced in previous decisions.[1004]

Equal Protection of the Laws

DEFINITIONS OF TERMS

What Constitutes State Action