Chapter XCIII: Section 5: The Congress shall have power to enforce, by (3)

[744] Samuels _v._ McCurdy, 267 U.S. 188 (1925).

[745] 152 U.S. 133 (1894).

[746] Ibid. 140-141.

[747] Anderson National Bank _v._ Luckett, 321 U.S. 233, 246-247 (1944).

[748] Coffin Bros. & Co. _v._ Bennett, 277 U.S. 29, 31 (1928).

[749] Postal Teleg. Cable Co. _v._ Newport, 247 U.S. 464, 476 (1918); Baker _v._ Baker, E. & Co., 242 U.S. 394, 403 (1917); Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230, 236 (1900).

[750] American Surety Co _v._ Baldwin, 287 U.S. 156, 168 (1932).

[751] Saunders _v._ Shaw, 244 U.S. 317 (1917).

[752] _See_ footnote 1, p. 1085. [Transcriber's Note: Reference is to Footnote 741, above.]

[753] Coe _v._ Armour Fertilizer Works, 237 U.S. 413, 424 (1915); Wuchter _v._ Pizzutti, 276 U.S. 13 (1928).

[754] Roller _v._ Holly, 176 U.S. 398, 407, 409 (1900).

[755] Goodrich _v._ Ferris, 214 U.S. 71, 80 (1909). One may, of course, waive a right to notice and hearing, as in the case of a debtor or surety who consents to the entry of a confessed judgment on the happening of certain conditions.--Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388 (1886); American Surety Co. _v._ Baldwin, 287 U.S. 156 (1932).

[756] _See_ pp. 1084-1088.

[757] Holmes _v._ Conway, 241 U.S. 624, 631 (1916); Louisville & N.R. Co. _v._ Schmidt, 177 U.S. 230, 236 (1900).

[758] Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934); West _v._ Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897); Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912). The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them and to deny access to its courts, in the exercise of its right to regulate practice and procedure; is also subject to the restrictions imposed by the contract, full faith and credit, and privileges and immunities clauses of the Federal Constitution. Angel _v._ Bullington, 330 U.S. 183 (1947).

[759] Hardware Dealers Mut. F. Ins. Co. _v._ Glidden Co., 284 U.S. 151, 158 (1931); Iowa C.R. Co. _v._ Iowa, 160 U.S. 389, 393 (1896); Honeyman _v._ Hanan, 302 U.S. 375 (1937).

[760] Cincinnati Street R. Co. _v._ Snell, 193 U.S. 30, 36 (1904).

[761] Ownbey _v._ Morgan, 256 U.S. 94, 112 (1921). Thus, the Fourteenth Amendment does not constrain the States to accept modern doctrines of equity, or adopt a combined system of law and equity procedure, or dispense with all necessity for form and method in pleading, or give untrammeled liberty to make amendments.

[762] Cohen _v._ Beneficial Loan Corp., 337 U.S. 541 (1949).

[763] Young Co. _v._ McNeal-Edwards Co., 283 U.S. 398 (1931); Adam _v._ Saenger, 303 U.S. 59 (1938).

[764] Jones _v._ Union Guano Co., 264 U.S. 171 (1924).

[765] York _v._ Texas, 137 U.S. 15 (1890); Kauffman _v._ Wooters, 138 U.S. 285, 287 (1891).

[766] Grant Timber & Mfg. Co. _v._ Gray, 236 U.S. 133 (1915).

[767] Ownbey _v._ Morgan, 256 U.S. 94, 111 (1921).--Consistently, with due process, a State may provide that the doctrines of contributory negligence, assumption of risk, and fellow servant shall not bar recovery in actions brought against an employer for death or injury resulting from dangerous machinery improperly safeguarded. A person having no vested right to the defense of contributory negligence, a State may take it away altogether, or may provide that said defense, as well as that of assumption of risk, are questions of fact to be left to the jury.--Bowersock _v._ Smith, 243 U.S. 29, 34 (1917); Chicago, R.I. & P.R. Co. _v._ Cole, 251 U.S. 54, 55 (1919); Herron _v._ Southern P. Co., 283 U.S. 91 (1931).

[768] Sawyer _v._ Piper, 189 U.S. 154 (1903).

[769] Ballard _v._ Hunter, 204 U.S. 241, 259 (1907).

[770] Missouri K. & T.R. Co. _v._ Cade, 233 U.S. 642, 650 (1914).

[771] Lowe _v._ Kansas, 163 U.S. 81 (1896).

[772] Yazoo & M.V.R. Co. _v._ Jackson Vinegar Co., 226 U.S. 217 (1912); Chicago & N.W.R. Co. _v._ Nye Schneider Fowler Co., 260 U.S. 35, 43-44 (1922); Hartford L. Ins. Co. _v._ Blincoe, 255 U.S. 129, 139 (1921); Life & C. Ins. Co. _v._ McCray, 291 U.S. 566 (1934).

[773] Pizitz Dry Goods Co. _v._ Yeldell, 274 U.S. 112, 114 (1927).

[774] Coffey _v._ Harlan County, 204 U.S. 659, 663, 665 (1907).

[775] Wheeler _v._ Jackson, 137 U.S. 245, 258 (1890); Kentucky Union Co. _v._ Kentucky, 219 U.S. 140, 156 (1911).

[776] Blinn _v._ Nelson, 222 U.S. 1 (1911).

[777] Turner _v._ New York, 168 U.S. 90, 94 (1897).

[778] Soper _v._ Lawrence Bros. Co., 201 U.S. 359 (1906). Nor is a former owner who had not been in possession for five years after and fifteen years before said enactment thereby deprived of any property without due process.

[779] Mattson _v._ Department of Labor, 293 U.S. 151, 154 (1934).

[780] Campbell _v._ Holt, 115 U.S. 620, 623, 628 (1885).

[781] Chase Securities Corp. _v._ Donaldson, 325 U.S. 304 (1945).

[782] Gange Lumber Co. _v._ Rowley, 326 U.S. 295 (1945).

[783] Campbell _v._ Holt, 115 U.S. 620, 623 (1885). _See also_ Stewart _v._ Keyes, 295 U.S. 403, 417 (1935).

[784] Home Ins. Co. _v._ Dick, 281 U.S. 397, 398 (1930).

[785] Hawkins _v._ Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Farm Mortg. Co. _v._ Harry, 273 U.S. 119, 124 (1927). An omission in a criminal trial of any reference to the presumption of innocence effects no denial of due process of law where the State appellate court ruled that such omission did not invalidate the proceedings. Howard _v._ Fleming, 191 U.S. 126, 136 (1903).

[786] Manley _v._ Georgia, 279 U.S. 1, 5 (1929); Western & A.R. Co. _v._ Henderson, 279 U.S. 639, 642 (1929); Bailey _v._ Alabama, 219 U.S. 219, 233 (1911); Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35, 42 (1910).

[787] Bailey _v._ Alabama, 219 U.S. 219, 233 (1911).

[788] Manley _v._ Georgia, 279 U.S. 1, 7 (1929).

[789] Western & A.R. Co. _v._ Henderson, 279 U.S. 639 (1929).

[790] Atlantic Coast Line R. Co. _v._ Ford, 287 U.S. 502 (1933). _See also_ Mobile, J. & K.C.R. Co. _v._ Turnipseed, 219 U.S. 35 (1910).

[791] Hawes _v._ Georgia, 258 U.S. 1 (1922).

[792] Bandini Petroleum Co. _v._ Superior Ct., 284 U.S. 8, 19 (1931).

[793] Hawker _v._ New York, 170 U.S. 189 (1898).

[794] Cockrill _v._ California, 268 U.S. 258, 261 (1925).

[795] Morrison _v._ California, 288 U.S. 591 (1933).

[796] Morrison _v._ California, 291 U.S. 82 (1934).

[797] "The limits are in substance these, that the State shall have proved enough to make it just for the defendant to be required to repeal what has been proved * * *, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression."--Ibid. 88-89.

[798] Ibid. 87-91, 96-97.

[799] Leland _v._ Oregon, 343 U.S. 790 (1952).

[800] Walker _v._ Sauvinet, 92 U.S. 90 (1876); New York C.R. Co. _v._ White, 243 U.S. 188, 208 (1917); Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934).

[801] Marvin _v._ Trout, 199 U.S. 212, 226 (1905).

[802] Tinsley _v._ Anderson, 171 U.S. 101, 108 (1898); Eilenbecker _v._ District Court, 134 U.S. 31, 36, 39 (1890).

[803] Delgado _v._ Chavez, 140 U.S. 586, 588 (1891).

[804] Wilson _v._ North Carolina ex rel. Caldwell, 169 U.S. 586 (1898); Foster _v._ Kansas ex rel. Johnston, 112 U.S. 201, 206 (1884).

[805] Long Island Water Supply Co. _v._ Brooklyn, 166 U.S. 685, 694 (1897).

[806] Montana Company _v._ St. Louis Min. & Mill Co., 152 U.S. 160, 171 (1894); Church _v._ Kelsey, 121 U.S. 282 (1887).

[807] Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912).

[808] Maxwell _v._ Dow, 176 U.S. 581, 602 (1900).

[809] Winters _v._ New York, 333 U.S. 507, 509-510, 515 (1948). _See also_ Cline _v._ Frink Dairy, 274 U.S. 445 (1927); Cole _v._ Arkansas, 338 U.S. 345, 354 (1949).

[810] Lanzetta _v._ New Jersey, 306 U.S. 451, 455 (1939).

[811] Minnesota _v._ Probate Court, 309 U.S. 270 (1940).

[812] Hurtado _v._ California, 110 U.S. 516, 520, 538 (1884); Brown _v._ New Jersey, 175 U.S. 172, 175 (1890); Maxwell _v._ Dow, 176 U.S. 581, 602 (1900); Graham _v._ West Virginia, 224 U.S. 616, 627 (1912); Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912).

[813] Lem Woon _v._ Oregon, 229 U.S. 586, 590 (1913).

[814] Gaines _v._ Washington, 277 U.S. 81, 86 (1928).

[815] Norris _v._ Alabama, 294 U.S. 587 (1935). _See also_ Hale _v._ Kentucky, 303 U.S. 613 (1938); Pierre _v._ Louisiana, 306 U.S. 354 (1939); Smith _v._ Texas, 311 U.S. 128 (1940); Shepherd _v._ Florida, 341 U.S. 50 (1951).

[816] Powell _v._ Alabama, 287 U.S. 45, 66, 71 (1932).

[817] Palko _v._ Connecticut, 302 U.S. 319, 324-325 (1937).

[818] 287 U.S. 45 (1932).

[819] Ibid. 71.

[820] 287 U.S. 45, 71 (1932).--The Court presently seems to be holding that in capital cases, notwithstanding the absence even of other circumstances prejudicial to the defendant, the right to counsel is unqualified. _See_ the later cases discussed herein, especially Tomkins _v._ Missouri, 323 U.S. 485 (1945); Williams _v._ Kaiser, 323 U.S. 471 (1945); Hawk _v._ Olson, 326 U.S. 271 (1945); and the Court's summary of its rulings in Uveges _v._ Pennsylvania, 335 U.S. 437 (1948), _supra_, p. 1108.

[821] 308 U.S. 444 (1940).

[822] Ibid. 446-447.

[823] 312 U.S. 329 (1941).--In a post mortem comment on this case appearing in the later decision of Betts _v._ Brady, 316 U.S. 455, 464 (1942), there is contained the intimation that the mere failure to appoint counsel, alone, in the absence of the proof of other facts tending to show that the whole trial was "a mere sham and a pretense," would not have sufficed to support a finding of a denial of due process.

[824] 316 U.S. 455, 462-463 (1942).

[825] Ibid. 462, 473.

[826] In Powell _v._ Alabama, 287 U.S. 45 (1932); Avery _v._ Alabama, 308 U.S. 444 (1940); and Smith _v._ O'Grady, 312 U.S. 329 (1941), a State law required the appointment of counsel.

[827] 316 U.S. 455, 461-462, 474-476 (1942).--Dissenting, Justice Black, with whom Justices Douglas and Murphy were in agreement, acknowledged regretfully that the view that the "Fourteenth Amendment made the Sixth applicable to the States * * * has never been accepted by a majority of this Court," and submitted a list of citations showing that by judicial decision, as well as by constitutional and statutory provision, a majority of States require that indigent defendants, in noncapital as well as capital cases, be provided with counsel on request. This evidence, he contended, supports the conclusion that "denial to the poor of a request for counsel in proceedings based on serious charges of crime," has "long been regarded throughout this country as shocking to the 'universal sense of justice.'"

[828] 323 U.S. 471 (1945).

[829] 323 U.S. 485 (1945).

[830] 287 U.S. 45, 69, 71 (1932).

[831] 323 U.S. 471, 476 (1945).

[832] 324 U.S. 42 (1945). _See also_ White _v._ Ragen, 324 U.S. 760 (1945).

[833] 326 U.S. 271 (1945).

[834] 324 U.S. 42, 46 (1945).

[835] 324 U.S. 786 (1945).

[836] 327 U.S. 82 (1946). Justices Murphy and Rutledge dissented, the former contending that "the right to counsel means nothing unless it means the right to counsel at each and every step in a criminal proceeding."--Ibid. 89.

[837] 329 U.S. 173 (1946).

[838] Rice _v._ Olson, 324 U.S. 786 (1945), was distinguished on the ground that the record in the older case contained specific allegations bearing on the disabilities of the accused to stand prosecution without the aid of counsel and the complete absence of any uncontested finding, as in the instant case, of an intelligent waiver of counsel.

Dissenting for himself and Justices Black and Rutledge, Justice Douglas declared that, under the authority of Williams _v._ Kaiser, 323 U.S. 471, 476 (1945), "if * * * [the] defendant is not capable of making his own defense, it is the duty of the Court, at least in capital cases, to appoint counsel, whether requested so to do or not."--329 U.S. 173, 181 (1946). In a separate dissent, Justice Murphy observed that while "legal technicalities doubtless afford justification for our pretense of ignoring plain facts before us," facts which emphasize the absence of any intelligent waiver of counsel, "the result certainly does not enhance the high traditions of the judicial process."--Ibid. 183.

[839] 329 U.S. 663, 665 (1947).

[840] 332 U.S. 134 (1947).

[841] 332 U.S. 145 (1947).

[842] 332 U.S. 134, 136 (1947).--Acknowledging that the decision is in line with the precedent of Betts _v._ Brady, Justice Black, who was joined by Justices Douglas, Murphy, and Rutledge, lamented that the latter was a "kind of precedent [which he] had hoped that the Court would not perpetuate." Complaining of the loss of certainty occasioned by the Court's refusal to read into the Fourteenth Amendment the absolute right to counsel set out in the Sixth Amendment, Justice Black contends that the fair trial doctrine as enunciated in this and in the Adamson _v._ California case (_see_ p. 1115) decided on the same day is "another example of the consequences which can be produced by the substitution of this Court's day-to-day opinion of what kind of trial is fair and decent for the kind of trial which the Bill of Rights guarantees."--Ibid. 139, 140.--In a second dissenting opinion meriting the concurrence of Justices Black, Douglas, and Murphy, Justice Rutledge, who also is of the opinion that the absolute right to counsel granted by the Sixth Amendment should be enjoyed in State criminal trials, insisted that even under the fair trial doctrine, the accused had not been accorded due process.

[843] 332 U.S. 145 (1947).

[844] 332 U.S. 561 (1947).

[845] 332 U.S. 596 (1948).

[846] _See_ p. 1103.

[847] 333 U.S. 640, 678, 680-682 (1948).--As against the assertion of the majority that the due process clause of the Fourteenth Amendment does not of its own force require appointment of counsel for one simply because he would have a constitutional right to the assistance of counsel in a comparable federal case, the minority, consisting of Justices Black, Murphy, and Rutledge speaking through Justice Douglas, declared that "the Bill of Rights is applicable to all courts at all times"; for, otherwise, "of what value is the constitutional guarantee of a fair trial if an accused does not have counsel to advise and defend him." Noting that all members of the Court were in accord on the requirement of counsel in capital offenses, the minority contended that the considerations inducing such unanimity were "equally germane [in noncapital cases] where liberty rather than life hangs in the balance." Conceding that "it might not be nonsense to draw the Betts _v._ Brady line somewhere between that case and the case of one charged with violation of a parking ordinance, and to say the accused is entitled to counsel in the former but not in the latter," the minority concluded as follows: "* * * to draw the line between this case and cases where the maximum penalty is death is to make a distinction which makes no sense in terms of the absence or presence of need for counsel. Yet it is the _need_ for counsel that establishes the real standard for determining whether the lack of counsel rendered the trial unfair. And the need for counsel, even by Betts _v._ Brady standards, is not determined by the complexities of the individual case or the ability of the particular person who stands as an accused before the Court. That need is measured by the _nature_ of the _charge_ and the _ability_ of the _average_ man to face it alone, unaided by an expert in the law."

[848] 334 U.S. 672, 683 (1948).

[849] 334 U.S. 728, 730, 731 (1948).

[850] 334 U.S. 736 (1948).

[851] Ibid. 740.--The majority also observed that "trial court's facetiousness casts a somewhat somber reflection on the fairness of the proceeding * * *"

Although Chief Justice Vinson and Justices Reed and Burton dissented without an opinion in Townsend _v._ Burke, four Justices, Black, Douglas, and Murphy speaking through Justice Rutledge filed a vigorous dissent in Gryger _v._ Burke, 334 U.S. 728, 733, 736 (1948). Justice Rutledge declared his inability to "square * * * [this] decision in this case with that made in Townsend _v._ Burke. I find it difficult to comprehend that the [trial] court's misreading or misinformation concerning the facts of [the] record [Townsend _v._ Burke] vital to the proper exercise of the sentencing function is prejudicial * * *, but its misreading or misconception of the controlling statute, [Gryger _v._ Burke] in a matter so vital as imposing mandatory sentence or exercising discretion concerning it, has no such effect. Perhaps the difference serves only to illustrate how capricious are the results when the right to counsel is made to depend not upon the mandate of the Constitution, but upon the vagaries of whether judges, * * * will regard this incident or that in the course of particular criminal proceedings as prejudicial."

[852] 335 U.S. 437, 438-442 (1948).

[853] 337 U.S. 773, 780 (1949).

[854] 342 U.S. 184 (1951); _See also_ Per Curiam opinion granting certiorari in Foulke _v._ Burke, 342 U.S. 881 (1951).

[855] 339 U.S. 660, 665 (1950).

[856] 342 U.S. 55 (1951).

[857] Ibid. 64.

[858] 335 U.S. 437, 440-441 (1948).

[859] Rice _v._ Olson, 324 U.S. 786, 788-789 (1945).

[860] Wade _v._ Mayo, 334 U.S. 672, 683-684 (1948); De Meerleer _v._ Michigan, 329 U.S. 663, 664-665 (1947); Betts _v._ Brady, 316 U.S. 455, 472 (1942); Powell _v._ Alabama, 287 U.S. 45, 51-52, 71 (1932).

[861] Townsend _v._ Burke, 334 U.S. 736, 739-741 (1948); De Meerleer _v._ Michigan, 329 U.S. 663, 665 (1947); Smith _v._ O'Grady, 312 U.S. 329, 332-333 (1941).

[862] Rice _v._ Olson, 324 U.S. 786, 789-791 (1945).

[863] Gibbs _v._ Burke, 337 U.S. 773, 780-781 (1949). Devotion to the Fair Trial doctrine has also created another problem for the Court, that of a burdensome increase in the volume of its business. Inasmuch as accurate appraisal of the effect of absence of counsel on the validity of a State criminal proceeding has been rendered more difficult by the vagueness of that doctrine as well as by the Court's acknowledged variation in the application thereof, innumerable State prisoners have been tempted to seek judicial reconsideration of their convictions. To reduce the number of such cases which it is obliged to examine on their merits, the Court had been compelled to have recourse to certain protective rules. Thus, when a State prisoner seeks to attack the validity of his conviction by way of _habeas corpus_ proceedings begun in a lower federal court, application for that writ will be entertained only after all State remedies available, including all appellate remedies in State courts and in the Supreme Court by appeal or writ of certiorari, have been exhausted. This rule, however, will not be applied when no adequate State remedy is in fact available. Also when a prisoner's petition for release on the grounds of the unconstitutionally of his conviction has been rejected by a State court, a petition for certiorari addressed to the United States Supreme Court will be denied whenever it appears that the prisoner had not invoked the appropriate State remedy. Or stated otherwise, where the State court's conviction or refusal to grant writs of _habeas corpus_ to those under State sentences may fairly be attributed to a rule of local procedure and is not exclusively founded on the denial of a federal claim, such as, right to counsel, the Supreme Court will refuse to intervene. As in the case of other legal rules, Justices of the Supreme Court have often found themselves in disagreement as to the manner of applying these aforementioned principles; and vigorous dissents arising out of this very issue were recorded in the cases of Marino _v._ Ragen, 332 U.S. 561 (1947); Wade _v._ Mayo, 334 U.S. 672 (1948); and Uveges _v._ Pennsylvania, 335 U.S. 437 (1948). Justice Frankfurter has frequently, albeit unsuccessfully contended, that "intervention by * * * [the Supreme Court] in the criminal process of States * * * should not be indulged in unless no reasonable doubt is left that a State denies, or has refused to exercise, means of correcting a claimed infraction of the United States Constitution. * * * After all, [it should be borne in mind that] this is the Nation's ultimate judicial tribunal, not a super-legal-aid bureau."

[864] 176 U.S. 581 (1900).

[865] 110 U.S. 516 (1884).

[866] Jordan _v._ Massachusetts, 225 U.S. 167, 176. (1912).

[867] Maxwell _v._ Dow, 176 U.S. 581 (1900).

[868] Hallinger _v._ Davis, 146 U.S. 314 (1892).

[869] Ibid. 318-320.

[870] Missouri _v._ Lewis, 101 U.S. 22 (1880); Maxwell _v._ Dow, 176 U.S. 581, 603 (1900); Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912); Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934).

[871] Brown _v._ New Jersey, 175 U.S. 172, 175, 176 (1899).

[872] Ashe _v._ United States ex rel. Valotta, 270 U.S. 424, 425 (1926).

[873] Fay _v._ New York, 332 U.S. 261, 288 (1947); Moore _v._ New York, 333 U.S. 585 (1948).--Both cases reject the proposition that the commandment of the Sixth Amendment, which requires a jury trial in criminal cases in the federal courts is picked up by the due process clause of the Fourteenth Amendment so as to become a limitation upon the States.

[874] Fay _v._ New York, 332 U.S. 261, 283-284 (1947).--Since Congress, by way of enforcing the guarantees contained in the Fourteenth Amendment, has, by statute [18 Stat. 336, 377 (1875); 8 U.S.C. 44], made it a crime to exclude a citizen from jury service only on account of race, color, or previous condition of servitude, the Supreme Court "never has interfered with the composition of State court juries except in cases where this guidance of Congress was applicable." Without suggesting that "no case of discrimination in jury drawing except those involving race or color can carry such unjust consequences as to amount to a denial of * * * due process," the Court has nevertheless required that a defendant, alleging grounds not covered by that statute, "must comply with the exacting requirements of proving clearly" that the procedure in his case was destructive of due process.

These statements reflect the views of only five Justices. Speaking for the minority (Justices Black, Douglas, and Rutledge), Justice Murphy declared that "the vice lies in the very concept of 'blue ribbon' panels--the systematic and intentional exclusion of all but the 'best' or the most learned or intelligent of the general jurors. Such panels are completely at war with the democratic theory of our jury system, a theory formulated out of the experience of generations. One is constitutionally entitled to be judged by a fair sampling of all one's neighbors who are qualified, not merely those with superior intelligence or learning. Jury panels are supposed to be representative of all qualified classes. Within those classes, of course, are persons with varying degrees of intelligence, wealth, education, ability and experience. But it is from that welter of qualified individuals, who meet specified minimum standards, that juries are to be chosen. Any method that permits only the 'best' of these to be selected opens the way to grave abuses. The jury is then in danger of losing its democratic flavor and becoming the instrument of the select few." A "blue ribbon jury" is neither "a jury of the * * * [defendant's] peers," nor "a jury chosen from a fair cross-section of the community, * * *"--Moore _v._ New York, 333 U.S. 565, 569-570 (1948).

[875] Rawlins _v._ Georgia, 201 U.S. 638 (1906). The Supreme Court "has never entertained a defendant's objections to exclusions from the jury except when he was a member of the excluded class."--Fay _v._ New York, 332 U.S. 261, 287 (1947).

[876] 211 U.S. 78, 93, 106-107, 113; citing Missouri _v._ Lewis, 101 U.S. 22 (1880); and Holden _v._ Hardy, 169 U.S. 366, 387, 389 (1898).

[877] In several decisions the Court, assuming, but without deciding, that a State law requiring a witness to answer incriminating questions would violate the due process clause, has then proceeded to conclude, nevertheless, that a State antitrust law which grants immunity from local prosecution to a witness compelled to testify thereunder is valid even though testimony thus extracted may later serve as the basis of a federal prosecution for violation of federal antitrust laws.--Jack _v._ Kansas, 199 U.S. 372, 380 (1905).

[878] Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934).

[879] Palko _v._ Connecticut, 302 U.S. 319, 325-326 (1937).

[880] 297 U.S. 278, 285-286 (1936). For the significance of this decision as a precedent in favor of a more careful scrutiny by the Supreme Court of State trials in which a denial of constitutional rights allegedly occurred, see p. 1138.

[881] Ibid, 285-286.

[882] 309 U.S. 227 (1940).

[883] Ibid. 228-229, 237-241.

[884] 310 U.S. 530 (1940).

[885] 314 U.S. 219, 237 (1941). This dictum represents the closest approach which the Court thus far has made toward inclusion of the privilege against self-incrimination within the due process clause of the Fourteenth Amendment. In all but a few of the forced confession cases, however, the results achieved by application of the Fair Trial doctrine differ scarcely at all from those attainable by incorporation of the privilege within that clause.

[886] 316 U.S. 547 (1942).

[887] 322 U.S. 143 (1944).

[888] _See_ Baldwin _v._ Missouri, 281 U.S. 586, 595 (1930).

[889] 322 U.S. 143, 160-162 (1944).--All members of the Court were in accord, however, in condemning, as no less a denial of due process, the admission at the second trial of Ashcraft [Ashcraft _v._ Tennessee, 327 U.S. 274 (1946)] of evidence uncovered in consequence of the written confession, acceptance of which at the first trial had led to the reversal of his prior conviction.

[890] 322 U.S. 596 (1944).

[891] Ibid. 602.--Of three Justices who dissented, Justice Murphy, with whom Justice Black was associated, declared that it was "inconceivable * * * that the second confession was free from the coercive atmosphere that admittedly impregnated the first one"; and added that previous decisions of this Court "in effect have held that the Fourteenth Amendment makes the prohibition [of the Fifth pertaining to self-incrimination] applicable to the States."--Ibid. 605-606.

[892] 324 U.S. 401 (1945).

[893] Chief Justice Stone, together with Justices Roberts, Reed, and Jackson, all of whom dissented, would have sustained the conviction.

[894] Justices Rutledge and Murphy dissented in part, assigning among their reasons therefor their belief that the "subsequent confessions, * * *, were vitiated with all the coercion which destroys admissibility of the first one." According to Justice Rutledge, "a stricter standard is necessary where the confession tendered follows a prior coerced one than in the case of a single confession * * *. Once a coerced confession has been obtained all later ones should be excluded from evidence, wherever there is evidence that the coerced one has been used to secure the later ones."--324 U.S. 401, 420, 428-429 (1945).

[895] In Lyons _v._ Oklahoma, 322 U.S. 596, 601 (1944), the Court stated that "when the State-approved instruction (to the jury) fairly raises the question of whether or not the challenged confession was voluntary, * * *, the requirements of due process, * * *, are satisfied and this Court will not require a modification of local practice to meet views that it might have as to * * * how specific an instruction * * * must be." In Malinski _v._ New York, the four dissenting Justices declared that "the trial court, * * *, instructed the jury that the evidence with respect to the first confession was adduced only to show that the second was coerced. And * * * that it could consider the second confession, only if it found it voluntary, and that it could convict in that case. In view of these instructions, we cannot say that the first confession was submitted to the jury, or that in the absence of any exception or request to charge more particularly, there was any error, of which the * * * [accused] can complain."--324 U.S. 401, 437 (1945).

[896] The coercive nature of the first oral confession was apparently acknowledged by the prosecuting attorney in his summation to the jury; for he declared that the accused "was not hard to break," and that the purpose of holding him _incommunicado_ and unclothed in a hotel room from 8 a.m. to 6 p.m., when the confession was made, was to "let him think that he is going to get a shellacking (beating)."--324 U.S. 401, 407 (1945).

[897] 332 U.S. 46, 56 (1947).

[898] 211 U.S. 78 (1908).

[899] 302 U.S. 319 (1937).

[900] Adamson _v._ California, 332 U.S. 46, 50, 53, 56, 58 (1947).

[901] Adamson _v._ California, 332 U.S. 46, 59-60, 63-64, 66 (1947). _See also_ Malinski _v._ New York, 324 U.S. 401, 414, 415, 417 (1945).

[902] Adamson _v._ California, 332 U.S. 46, 69, 74-75, 89 (1947).--Dissenting separately, Justice Murphy, together with Justice Rutledge, announced their agreement with Justice Black, subject to one reservation. While agreeing "that the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment," they were "not prepared to say that the latter is entirely and necessarily limited by the Bill of Rights. Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant * * * condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights."--Ibid. 124.

In a lengthy article based upon a painstaking examination of original data pertaining to the "understanding of the import of the * * * clauses of Section 1 of the Fourteenth Amendment at the time the Amendment was adopted"; that is, during the period 1866-1868, Professor Charles Fairman has marshalled a "mountain of evidence" calculated to prove conclusively the inaccuracy of Justice Black's reading of history.--Charles Fairman. Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding.--2 Stanford Law Review, 5-139 (1949).

[903] 332 U.S. 596 (1948).

[904] Ibid. 600-601.--In a dissenting opinion, in which Chief Justice Vinson and Justices Jackson and Reed concurred, Justice Burton remarked that inasmuch as the issue of the voluntariness of the confession was one of fact, turning largely on the credibility of witnesses, the determination thereof by the trial judge and jury should not be overturned upon mere conjecture.--Ibid. 607, 615.

[905] 332 U.S. 742, 745 (1948).

[906] 335 U.S. 252 (1948).

[907] The Court also held that the procedure of Alabama, in requiring the accused to obtain permission from an appellate court before filing a petition in a trial court for a writ of error _coram nobis_ was consistent with due process. Alabama was deemed to possess "ample machinery for correcting the Constitutional wrong of which the * * * [accused] complained."--Ibid. 254, 260-261.

[908] The accused, in his petition, neither denied his guilt nor any of the acts on which his conviction was based. He simply contended that because of fear generated by coercive police methods applied to him, he had concealed such evidence from his own counsel at the time of the trial and had informed the latter that his confessions were voluntary. His charges of duress were supported by affidavits of three associates in crime, none of whom claims to have seen the alleged beatings of the petitioner.--Ibid. 265-266.

[909] In a dissenting opinion, in which Justices Douglas and Rutledge concurred, Justice Murphy maintained that inasmuch as there was some evidence to substantiate the petitioner's claim, the latter should have been allowed a hearing in the trial court. According to Justice Murphy, a conviction based on a coerced confession is "void even though the confession is in fact true" and the petitioner is guilty. Justice Frankfurter criticized this dissenting opinion as having been "written as though this Court was a court of criminal appeals for revision of convictions in the State courts."--Ibid. 272, 275-276.

[910] 338 U.S. 49 (1949).

[911] 338 U.S. 62, 64 (1949).

[912] 338 U.S. 68 (1949).

[913] Watts _v._ Indiana, 338 U.S. 49, 53 (1949).

[914] 309 U.S. 227 (1940).

[915] 322 U.S. 143 (1944).

[916] Watts _v._ Indiana, 338 U.S. 49, 57 (1949); citing Malinski _v._ New York, 324 U.S. 401 (1945); Haley _v._ Ohio, 332 U.S. 596 (1948).

[917] 338 U.S. 49, 60 (1949).

[918] 338 U.S. 62 (1949).

[919] 338 U.S. 68 (1949).

[920] 338 U.S. 49, 61 (1949). In the 1949, 1950, and 1951 terms only one case arose which involved the forced confession issue in any significant way. This was Rochin _v._ California, 342 U.S. 165 (1952), which is discussed immediately below in another connection. _See also_ Jennings _v._ Illinois, 342 U.S. 104 (1951); and Stroble _v._ California, 343 U.S. 181 (1952), in which diverse, but not necessarily conflicting, results were reached.

[921] 232 U.S. 58 (1914).

[922] Consolidated Rendering Co. _v._ Vermont, 207 U.S. 541, 552 (1908); Hammond Packing Co. _v._ Arkansas, 212 U.S. 322, 348 (1909).

[923] Wolf _v._ Colorado, 338 U.S. 25 (1949).

[924] 332 U.S. 46 (1947).

[925] 302 U.S. 319 (1937).

[926] 338 U.S. 25, 27-28 (1949).

[927] Ibid. 28-31.--In harmony with his views, as previously stated in Malinski _v._ New York, 324 U.S. 401 (1945) and Adamson _v._ California, 332 U.S. 46, 59-66 (1947), Justice Frankfurter amplified his appraisal of the due process clause as follows: "Due process of law * * * conveys neither formal nor fixed nor narrow requirements. It is the compendius expression for all those rights which the courts must enforce because they are basic to our free society. But basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits of the essentials of fundamental rights. To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. * * * The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of 'inclusion and exclusion.'"--Ibid. 27.

[928] 332 U.S. 46, 68, 71-72 (1947).

[929] Wolf _v._ Colorado, 338 U.S. 25, 39-40 (1949).

[930] Ibid. 40, 41, 44, 46, 47.

[931] Stefanelli _v._ Minard, 342 U.S. 117 (1951); Rochin _v._ California, 342 U.S. 165 (1952).

[932] 342 U.S. 117, 123.

[933] 342 U.S. 105, 168, citing Malinski _v._ New York, 324 U.S. 401, 412, 418 (1945).

[934] Ibid., 174.

[935] 332 U.S. 46, 68-123 (1947). "Of course", said Justice Douglas, citing Holt _v._ United States, 218 U.S. 245, 252-253 (1910), "an accused can be compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat." 342 U.S. at 179. _See_ the Self-incrimination Clause of Amendment V.

[936] Mooney _v._ Holohan, 294 U.S. 103, 112 (1935).

[937] Ibid. 110.--Because judicial process adequate to correct this alleged wrong was believed to exist in California and had not been fully invoked by Mooney, the Court denied his petition. Subsequently, a California court appraised the evidence offered by Mooney and ruled that his allegations had not been established.--Ex parte Mooney, 10 Cal. (2d) 1, 73 P (2d) 554 (1937); certiorari denied, 305 U.S. 598 (1938). Mooney later was pardoned by Governor Olson.--New York Times, January 8, 1939.

[938] 315 U.S. 411 (1942).

[939] 317 U.S. 213 (1942).

[940] 324 U.S. 760 (1945). _See also_ New York ex rel. Whitman _v._ Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1944).

[941] 315 U.S. 411, 413, 421-422 (1942).--Justice Black, together with Justices Douglas and Murphy, dissented on the ground that the Florida court, "with intimations of approval" by the majority, had never found it necessary to pass on the credibility of Hysler's allegations, but had erroneously declared that all his allegations, even if true and fully known to the trial court, would not have precluded a conviction.

In an earlier case, Lisenba _v._ California, 314 U.S. 219 (1941), the Court, without discussion of this principle relating to the use of perjured testimony, sustained a California appellate court's denial of a petition for _habeas corpus_. The accused, after having been convicted and sentenced to death for murder, filed his petition supported by affidavits of a codefendant, who, after pleading guilty and serving as a witness for the State had received a life sentence. The latter affirmed that his testimony at the trial of the petitioner "was obtained by deceit, fraud, collusion, and coercion, and was known to the prosecutor to be false." Even though the California court had denied the petition for _habeas corpus_ without taking oral evidence and without requiring the State to answer, the Supreme Court upheld this action on the ground that there was no adequate showing of a corrupt bargain between the prosecution and the codefendant and that the appraisal of conflicting evidence was for the Court below. Even if latter's refusal to believe the codefendant's depositions were erroneous, such error, the Court added, would not amount to a denial of due process.

[942] 317 U.S. 213, 216 (1942).

[943] 324 U.S. 760 (1945). Certiorari was denied, however, for the reason that the State court's refusal to issue the writ of _habeas corpus_ was based upon an adequate nonfederal ground.

[944] Schwab _v._ Berggren, 143 U.S. 442, 448 (1802).--This statement is a dictum, however; for the issue presented by the accused's petition for a writ of _habeas corpus_ was that the State appellate court had denied him due process in ruling on his appeal from his conviction in the absence of both the petitioner and his counsel and without notice to either as to the date of its decision. Insofar as a right to be present exists, its application, the Supreme Court maintained, is limited to courts of original jurisdiction trying criminal cases.

[945] Howard _v._ Kentucky, 200 U.S. 164 (1906).

[946] 201 U.S. 123, 130 (1906).

[947] 237 U.S. 309, 343 (1915).

[948] Snyder _v._ Massachusetts, 291 U.S. 97 (1934).

[949] Ibid. 105, 106, 107, 108, 118.--In a dissent, in which Justices Brandeis, Butler, and Sutherland concurred, Justice Roberts insisted that "it * * * [was] not a matter of assumption but a certainty * * * [that] * * * the * * * privilege of the accused to be present throughout his trial is of the very essence of due process," and, in that connection, "the great weight of authority is that" the view by the jury "forms part of the trial." Even if "the result would have been the same had the [accused] been present, still the denial of the constitutional right ought not to be condoned. * * * Nor ought this Court to convert the inquiry from one as to the denial of the right into one as to the prejudice suffered by the denial. To pivot affirmance on the question of the amount of harm done the accused is to beg the constitutional question involved. * * * The guarantee of the Fourteenth Amendment is not that a just result shall have been obtained, but that the result, whatever it be, shall be reached in a fair way."--Ibid. 130-131, 134, 136-137.

[950] 337 U.S. 241 (1949).

[951] Ibid. 246-247, 249-250.--Dissenting, Justice Murphy maintained that the use in a capital case of probation reports which "concededly [would] not have been admissible at the trial, and * * * [were] not subject to examination by the defendant, * * *" violated "the high commands of due process * * *"--Ibid. 253. Justice Rutledge dissented without an opinion.

[952] 339 U.S. 9 (1950).

[953] Ibid. 12-13.--Disagreeing, Justice Frankfurter contended that a State is "precluded by the due process clause from executing a man who has temporarily or permanently become insane"; and thus bereft of unlimited discretion as to "how it will ascertain sanity," a State "must afford rudimentary safeguards for establishing [that] fact."--Ibid. 16, 19, 21, 24-25.

[954] In re Oliver, 333 U.S. 257 (1948). On application for _habeas corpus_, the prisoner's commitment was reviewed by the Michigan appellate court in the light, not of the whole record, but only of fragmentary excerpts showing merely the testimony alleged to be false and evasive.

In a concurring opinion, Justice Rutledge advocated disposing of the case on the ground that the Michigan one-man grand jury system was in its entirety in conflict with the requirements of due process.

On the ground that the Michigan courts had not passed on the constitutionality of the procedure at issue, Justices Frankfurter and Jackson dissented and urged the remanding of the case. _See also_ Gaines _v._ Washington, 277 U.S. 81, 85 (1928).

[955] 336 U.S. 155 (1949).

[956] Justice Douglas, with Justice Black concurring, dissented on the ground that even if "such elements of misbehavior as expression, manner of speaking, bearing, and attitude * * * [had] a contemptuous flavor. * * * freedom of speech should [not] be so readily sacrificed in a courtroom." Stressing that the trial judge penalized Fisher only for his forbidden comment and not for his behavior, and that it took a ruling of the Texas appellate court to settle the issue whether such comment was improper under Texas practice, Justice Douglas concluded that the record suggests only that "the judge picked a quarrel with this lawyer and used his high position to wreak vengeance." There having been no substantial obstruction of the trial, Justice Murphy believed that the trial judge's use of his power was inconsistent with due process; whereas Justice Rutledge, in dissenting, contended "there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench."--Ibid. 165-166, 167, 169.

[957] Tumey _v._ Ohio, 273 U.S. 510 (1927). _See also_ Jordan _v._ Massachusetts, 225 U.S. 167, 176 (1912).

[958] "Unless the costs usually imposed are so small that they may be properly ignored as within the maxim _de minimis non curat lex_."--_See_ Tumey _v._ Ohio, 273 U.S. 510, 523, 531 (1927).

[959] Dugan _v._ Ohio, 277 U.S. 61 (1928).

[960] Frank _v._ Mangum, 237 U.S. 309, 335 (1915).

[961] Moore _v._ Dempsey, 261 U.S. 86, 91 (1923).

[962] Thiel _v._ Southern Pacific Co., 328 U.S. 217 (1946). _See also_ Fay _v._ New York, 332 U.S. 261 (1947), _supra_ p. 1110. [Transcriber's Note: Reference is to Footnote 873, above.]

[963] Snyder _v._ Massachusetts, 291 U.S. 97, 116, 117 (1934).

[964] Lisenba _v._ California, 314 U.S. 219, 236 (1941).

[965] Buchalter _v._ New York, 319 U.S. 427, 429 (1943). The Court also declared that the due process clause did "not draw to itself the provisions of State constitutions or State laws."

[966] Powell _v._ Alabama, 287 U.S. 45, 68 (1932); Snyder _v._ Massachusetts, 291 U.S. 97, 105 (1934).

[967] Cole _v._ Arkansas, 333 U.S. 196, 202 (1948). _See also_ Williams _v._ North Carolina, 317 U.S. 287, 292 (1942), wherein the Court also stated that where a conviction in a criminal prosecution is based upon a general verdict that does not specify the ground on which it rests, and one of the grounds upon which it may rest is invalid under the Constitution, the judgment cannot be sustained.

[968] Paterno _v._ Lyons, 334 U.S. 314, 320-321 (1948).

[969] McKane _v._ Durston, 153 U.S. 684 (1894).--The prohibition of the requirement of excessive bail, expressed in the Eighth Amendment as a restraint against the Federal Government, has never been deemed to be applicable to the States by virtue of the due process clause of the Fourteenth Amendment. However, in a recent civil suit, a United States District Court judge asserted his belief, by way of dictum, that protection against "unreasonable searches and seizures, invasion of freedom of speech and press, unlawful and unwarranted incarcerations, arrests, and _failure to allow reasonable bail_ would all be fundamental rights protected by [the Fourteenth] Amendment from State invasion."--International Union, Etc. _v._ Tennessee Copper Co., 31 F. Supp. 1015 (1940).

[970] Collins _v._ Johnston, 237 U.S. 502, 510 (1915).--In affirming a judgment obtained by Texas in a civil suit to recover penalties for violation of its antitrust law, the Supreme Court proffered the following vague standard for determining the validity of penalties levied by States. "The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the State. We can only interfere with such legislation and judicial action of the States enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law." However, a fine of $1,600,000 levied in this case against a corporation having assets of $40,000,000 and paying out dividends as high as 700%, and which was shown to have profited from its wrong doing was not considered to be excessive.--Waters-Pierce Oil Co. _v._ Texas, 212 U.S. 86, 111 (1909).

[971] Graham _v._ West Virginia, 224 U.S. 616, 623 (1912). _See also_ Ughbanks _v._ Armstrong, 208 U.S. 481, 498 (1908).

[972] 136 U.S. 436, 447-448 (1890).

[973] 329 U.S. 459 (1947).

[974] Concurring in the result, Justice Frankfurter concentrated on the problem suggested by the proposed absorption of the Bill of Rights by the due process clause of the Fourteenth Amendment, and restated his previously disclosed position as follows: "Not until recently was it suggested that the Due Process Clause of the Fourteenth Amendment was merely a compendious reference to the Bill of Rights whereby the States were now restricted in devising and enforcing their penal code precisely as is the Federal Government by the first eight amendments. On this view, the States would be confined in the enforcement of their criminal codes by those views for safeguarding the rights of the individual which were deemed necessary in the eighteenth century. Some of these safeguards have perduring validity. Some grew out of transient experience or formulated remedies which time might well improve. The Fourteenth Amendment did not mean to imprison the States into the limited experience of the eighteenth century. It did mean to withdraw from the States the right to act in ways that are offensive to a decent respect for the dignity of man, and heedless of his freedom.

"These are very broad terms by which to accommodate freedom and authority. As has been suggested * * *, they may be too large to serve as the basis for adjudication in that they allow much room for individual notions of policy. That is not our concern. The fact is that the duty of such adjudication on a basis no less narrow has been committed to this Court.

"In an impressive body of decisions this Court has decided that the Due Process Clause of the Fourteenth Amendment expresses a demand for civilized standards which are not defined by the specifically enumerated guarantees of the Bill of Rights. They neither contain the particularities of the first eight amendments nor are they confined to them. * * * Insofar as due process under the Fourteenth Amendment requires the States to observe any of the immunities 'that are as valid as against the Federal Government by force of the specific pledges of particular amendments' it does so because they 'have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the States,'" [citing Palko _v._ Connecticut, 302 U.S. 319, 324, 325 (1937).]--Ibid. 467-469.

Justice Burton, with whom Justices Murphy, Douglas, and Rutledge were associated, dissented on the grounds that "the proposed repeated, and at least second, application to the * * * [defendant] of an electric current sufficient to cause death is * * *, a cruel and unusual punishment violative of due process of law."--Ibid. 479.

In Solesbee _v._ Balkcom, 339 U.S. 9 (1950), the Court declined to intervene in case coming up from Georgia in which appellant, claiming that he had become insane following conviction and sentence of death, sought a postponement of execution from the governor of the State. Justice Frankfurter dissented, asserting that the due process clause of Amendment XIV prohibits a State from executing an insane convict.

[975] 187 U.S. 71, 86 (1902). _See also_ Keerl _v._ Montana, 213 U.S. 135 (1909).

[976] 177 U.S. 155 (1900).

[977] 207 U.S. 188 (1907).

[978] Graham _v._ West Virginia, 224 U.S. 616, 623 (1912).

[979] 302 U.S. 319 (1937).

[980] In a lengthy dictum, Justice Cardozo, speaking for the Court, rejected the defendant's view that "Whatever would be a violation of the original bill of rights (Amendments One to Eight) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state." By a selective process of inclusion and exclusion, he conceded that "the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the freedom of speech which the First Amendment safeguards against encroachment by the Congress, * * * or the like freedom of the press, * * * or the free exercise of religion, * * * or the right of peaceable assembly * * *, or the right of one accused of crime to the benefit of counsel." However, insofar as such "immunities, [which] are valid as against the Federal Government by force of the specific pledges of particular amendments, have become valid as against the States," that result is attributable, not to the absorption by the due process clause of the Fourteenth Amendment of particular provisions of the Bill of Rights, but to the fact that such immunities "have been found to be implicit in the concept of ordered liberty * * *" protected by that clause.--Ibid. 323, 324-325.

[981] Justice Butler dissented without an opinion.

[982] 320 U.S. 459, 462, 463 (1947).--In line with its former ruling in Graham _v._ West Virginia, 224 U.S. 616 (1912), the Court reiterated in Gryger _v._ Burke, 334 U.S. 728 (1948), that a life sentence imposed on a fourth offender under a State habitual criminal act is a stiffened penalty for his latest offense, which is considered to be an aggravated offense because a repetitive one, and is therefore not invalid as subjecting the offender to a new jeopardy.

[983] Ex parte Hull, 312 U.S. 546 (1941).

[984] White _v._ Ragen, 324 U.S. 760 n. 1 (1945).

[985] McKane _v._ Durston, 153 U.S. 684, 687 (1894); Andrews _v._ Swartz 156 U.S. 272, 275 (1895); Murphy _v._ Massachusetts, 177 U.S. 155, 158 (1900); Reetz _v._ Michigan, 188 U.S. 505, 508 (1903).

[986] Thus, where on the day assigned for hearing of a writ of error, it appeared that the accused had escaped from jail, the Court, without denial of due process, could order that the writ be dismissed unless the accused surrender himself within 60 days or be captured.--Allen _v._ Georgia, 166 U.S. 138 (1897).

[987] Carter _v._ Illinois, 329 U.S. 173, 175-176 (1946).

[988] Frank _v._ Mangum, 237 U.S. 309 (1915).

[989] For rules of self-limitation formulated by the Court not only to minimize its opportunities for such interference but also to curtail the volume of litigation reaching it for final disposition, _see_ p. 1109.

[990] 297 U.S. 278 (1936).

[991] 237 U.S. 309 (1915).

[992] 261 U.S. 86 (1923).

[993] Despite the court's contention that Moore _v._ Dempsey was disposed of in conformity with the principles enunciated in Frank _v._ Mangum, the two decisions are distinguishable not only by the different results reached therein, but by the fact that the State appellate court in Frank _v._ Mangum had ruled that the trial court had correctly concluded, on the basis of the evidence submitted, that the allegations of mob violence were unsubstantiated whereas the Arkansas appellate court, in Moore _v._ Dempsey, conceded a similar allegation to be correct but did not deem it sufficient to render the trial a nullity. Although in the later case, Arkansas demurred and thereby admitted the allegations supporting the _habeas corpus_ petition to be true, that fact is a lesser significance, for even in Frank _v._ Mangum, the Supreme Court abided by the rule that the writ of _habeas corpus_ relates to matters of substance and not of mere form, and declared that the petitioner's allegations should be treated as if conceded by the sheriff having custody of the petitioner.--237 U.S. 309, 332, 346 (1915).

[994] James _v._ Appel, 192 U.S. 129, 137 (1904); Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894); Standard Oil Co. _v._ Missouri ex rel. Hadley, 224 U.S. 270, 286 (1912); Baldwin _v._ Iowa State Traveling Men's Assoc., 283 U.S. 522, 524 (1931).

[995] Tracy _v._ Ginzberg, 205 U.S. 170 (1907); Allen _v._ Georgia, 166 U.S. 138, 140 (1897); Fallbrook Irrig. District _v._ Bradley, 164 U.S. 112, 157 (1896).

[996] Thorington _v._ Montgomery, 147 U.S. 490, 492 (1893).

[997] Cross _v._ North Carolina, 132 U.S. 131 (1889).

[998] Ballard _v._ Hunter, 204 U.S. 241, 258 (1907); Lyons _v._ Oklahoma, 322 U.S. 596 (1944); Gryger _v._ Burke, 334 U.S. 728 (1948).

[999] McDonald _v._ Oregon R. & Nav. Co., 233 U.S. 665, 670 (1914).