ciples, the judgment, that is, "as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious. judgment, it is true, and yet the very root and nerve of the whole proceeding." 3

At such a period of legislative emphasis in the law as the present, with reasonable likelihood of extension of state activity, such a change of attitude on the part of the highest court in the largest industrial state in the Union would in itself be amply significant to arouse lawyers to inquire as to the implications of such a decision. When, however, the New York court only illustrates a nation-wide phenomenon, such an inquiry, and a professional readjustment to its results, are imperative. The Schweinler decision involves, it is submitted, three implications of vital moment to constitutional adjudications, once they become part of the emotional stock as well as the intellectual belief of the profession.

First: Questions as to the constitutionality of modern social legislation are substantially questions of fact. The formulæ of the Bill of Rights do not furnish yardsticks by which the validity of specific statutes can be measured. Concepts like "liberty" and "due process" are too vague in themselves to solve issues. They derive meaning only if referred to adequate human facts. The legal principles cannot be applied in vacuo. In the famous Ives case 4 a great body of industrial and social data gathered by the Wainright Commission, on which the New York legislature acted in passing the workmen's compensation act, was brushed aside as irrelevant to "the purely legal phases of the controversy." In the Schweinler case the same court considered at length the data as to the relation of night work to women's health, gathered by the Factory Investigating Committee, upon which the New York legislature based the act in question. Deference to this data was the very foundation of the court's decision on the legal question.

Secondly, and closely following as a corollary, inasmuch as facts are dynamic, constitutional decisions upon which they must be based cannot be static. Conditions change, legislation deals with these changed conditions, and so must the courts. A book like Miss Goldmark's "Fatigue and Efficiency" completely undermines prevalent assumptions as to facts and, thereby, may well destroy the very groundwork of prior judicial decisions. Therefore the doctrine of stare decisis has no legitimate application to constitutional decisions where the court is presented with a new body of knowledge, largely non-existing at the time of its prior decision. This was precisely the situation in the Schweinler case. The seven years that elapsed between it and the Williams case developed an overwhelming mass of authoritative data, and it is by the light of such new knowledge that the justification of legislative action must be determined. Therefore a difference in attitude or result of constitutional decisions very frequently reflects only a corresponding development in the technique, or the new material, of the related social sciences. But frequently the court is left without proper aid as to the

This profound observation Mr. Justice Holmes has often given expression to in his writings and decisions: see 10 HARV. L. REV. 457. 466; THE COMMON LAW, 35, 36; Vegelahn v. Guntner, 167 Mass. 92, 105-106; Lochner v. New York, 198 U. S. 45, 76.

4 Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431.

existing facts supporting contested legislation, and herein we touch most intimately the responsibility of the profession and especially of legal education. These issues cannot be disposed of as abstract legal questions. Law must be related to the other social sciences. When the New York Court of Appeals refuses to follow the Williams case, because "of failure adequately to fortify and press upon our attention the constitutionality of the former law as a health and police measure, and to sustain its constitutionality by reference to proper facts and circumstances," it draws a heavy indictment against the Bar. Undoubtedly the last few years have seen progress. In fact since the Muller case, a new method of presenting constitutional questions to courts has gradually made its way, namely, by pressing home justification for a given statute by an authoritative marshalling of facts directed to the specific subject matter and the specific circumstances of particular jurisdictions. Thirdly, there is involved a changing realization of the proper scope of the judiciary in the distribution of governmental powers. Of course lip service has always been paid to the fundamental of American constitutional law, that the wisdom or justice of legislative policy is entirely outside the judicial province. But the rule has not always been honored in observance. Its application necessarily has become obscured where issues that involve conflicts of fact such as the regulation of hours and conditions of employment are treated as detached principles of law. But the matter lies deeper than that. We needed to be reminded authoritatively that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's 'Social Statics."" Here, as elsewhere, the emphasis makes the song. In the Williams case there is clearly discernible a feeling on the part of the court that it is its duty to serve as a barrier against the current tendency of collectivist legislation. A different note is struck when the same court in one of its recent decisions, of which the Schweinler case is the culmination, quotes approvingly the admonition of the Supreme Court, "it must be remembered that legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts." The admonition is profoundly important, particularly at a time of active legislation. It is an admonition that was sounded long ago before the controversial days by a great

5 Muller v. Oregon, 208 U. S. 412.

• See Briefs in Stettler v. O'Hara (minimum wage case) now pending before the Supreme Court of the United States on appeal from Oregon (139 Pac. 734). An examination of the briefs in the much criticised case of Coppage v. Kansas, 236 U. S. 1, makes one wonder whether a different result might not have been reached if the Court had had before it the mass of material available, at this stage of things, to demonstrate that prohibiting economic coercion against trade unions is a measure for industrial peace, a means of securing "the equality of position between the parties in which liberty of contract begins."

7 "The tendency of legislatures, in the form of regulatory measures, to interfere with the lawful pursuits of citizens is becoming a marked one in this country, and it behooves the courts, firmly and fearlessly, to interpose the barriers of their judgments, when invoked to protect against legislative acts, plainly, transcending the power conferred by the Constitution upon the legislative body." People v. Williams, 189 N. Y. 131, 135.

People v. Crane, 108 N. E. 427, 28 HARV. L. REV. 498, 628.

Missouri, K. & T. R. Co. v. May, 194 U. S. 267, 270; see also Oceanic Navigation Co. v. Stranahan, 214 U. S. 320, 340; Pacific Telephone Co. v. Oregon, 223 U. S. 118, 150.

teacher of constitutional law, with the vision of a statesman, James Bradley Thayer, to the end that responsibility for mischievous or inadequate legislation may be sharply brought home where it belongs, -to the legislature and to the people themselves. 10

Felix Frankfurter.

DUE PROCESS OF LAW IN THE FRANK CASE. Leo Frank, after three unsuccessful attempts to have a conviction of murder set aside by the Supreme Court of Georgia1 and a fruitless application to the Supreme Court of the United States for a writ of error,2 petitioned a United States District Court for a writ of habeas corpus. The denial of this petition without a hearing on the facts was recently upheld by a majority decision of the Supreme Court.3 Frank v. Mangum, 35 Sup. Ct. 582. While the dramatic interest of this cause célèbre has been uppermost in the popular mind, the intricate legal issues of the latest appeal make it noteworthy for the profession. The appellant sought to raise the constitutional question necessary for federal habeas corpus by contending that he had been deprived of due process of law, first by the reception of the verdict in his absence, and secondly by mob domination of the jury.

4

The court was unanimous that the first position could not be maintained. Due process of law does not forbid a state statute depriving criminals of indictment and trial by grand and petit juries, and the right to appeal. As presence of the accused at all stages of the trial is not an essential of due process," it is submitted that a statute compelling the accused to waive his absence at the reception of the verdict unless timely advantage were taken of it should be upheld as a reasonable measure to prevent dilatory tactics without impairing substantial justice. In the principal case there was no such statute, but the state court held that under the local practice appellant's failure to rely upon this known ground on the first motion for a new trial amounted to such a waiver.7 If such a rule had in fact been previously established by the courts, a decision in conformity therewith would be no more objectionable than a statute. The appellant contended, however, that the court's decision was an erroneous departure from the established state law 8 and hence a deprivation of due process. But even if the state court's decision, which seems well supported, overruled previous authorities, the Fourteenth Amendment would not give the federal courts jurisdiction to disregard

10 See THAYER, LEGAL ESSAYS, pp. 39, 41.

1 Frank v. State, 141 Ga. 243, 80 S. E. 1016, 27 HARV. L. REV. 762; Frank v. State, 83 S. E. 233 (Ga.); Frank v. State, 83 S. E. 645 (Ga.).

2 In the Matter of Frank, Petitioner, 235 U. S. 694 (without opinion). Holmes, J., and Hughes, J., dissenting. For a more detailed statement of the case, see RECENT CASES, p. 810.

4 U. S. R. S. 753.

Hurtado v. California, 110 U. S. 516; Maxwell v. Dow, 176 U. S. 581; Andrews v. Swartz, 156 U. S. 272.

6 Howard v. Kentucky, 200 U. S. 164.

7 Cawthon v. State, 119 Ga. 395, 46 S. E. 897; Leathers v. Leathers, 138 Ga. 740, 76 S. E. 44.

8 Citing Nolan v. State, 53 Ga. 137; s. c. 55 Ga. 521.

this erroneous ruling unless a statute embodying the new rule laid down would be itself unconstitutional. The appellant's further contention that an alteration in the course of decisions would be an ex post facto law is clearly untenable, for this clause applies only to legislation.10

But the second point gave the court more trouble. The majority apparently conceded that conviction by a jury dominated by a mob, even in a court of competent jurisdiction by the law of its creation, would not be due process. If such a conviction is upheld by a state court of appeal it is more than an erroneous departure from the requirements of the state law. A statute to legalize lynch law would be unhesitatingly struck down. A single decision upholding it is equally obnoxious to the Fourteenth Amendment, which is not, like the ex post facto clause, restricted in its application to legislation alone." Although this might at first seem clearer in the case of habitual departure from a valid statute,12 the Amendment was designed to protect the individual,13 and the invidious discrimination. of the state agency against a single victim falls within the additional prohibition against denying to any person the equal protection of the laws. This view may lead to a potential federal question in every state case. But many determinants of the line which divides mere errors from constitutional infringements are furnished by the cases settling what statutory modifications of procedure are invalid. And the practical difficulty cannot prevent intervention by the federal courts where due process is denied.

Manifestly, where such a question is raised, the Supreme Court must have the right on writ of error to go behind the state court's finding of facts and independently examine the record. Otherwise a state court could deprive the Supreme Court of jurisdiction by an erroneous finding that alleged facts did not sufficiently establish mob domination of a jury.14 At a hearing to determine whether habeas corpus shall issue, the federal court in addition is authorized by statute to investigate all facts, even extraneous to the record, bearing upon the petitioner's alleged unconstitutional detention. As this was conceded by the majority in the principal case, the discussion narrowed down to the question whether the petition showed upon its face that the appellant was not entitled to a hearing. The federal courts are properly cautious in exercising the delicate jurisdiction by which a state is deprived of its custody over a convicted criminal. No hearing will be granted where the state courts

15

• Central Land Co. v. Laidley, 159 U. S. 103; In re Converse, 137 U. S. 624; Storti v. Massachusetts, 183 U. S. 138; but see for an able argument contra, "The Supreme Court of the United States and the Enforcement of State Law by State Courts," by Professor Henry Schofield, 3 ILL. L. REV. 195; cf. WILLOUGHBY, THE CONSTITUTION, 8472.

ió Ross v. Oregon, 227 U. S. 150.

11 Ex parte Virginia, 100 U. S. 339; Scott v. McNeal, 154 U. S. 34. See Judge Swayze in 26 HARV. L. REV. 1, 2.

12 Yick Wo v. Hopkins, 118 U. S. 356; see WILLOUGHBY, THE CONSTITUTION, § 759. 13 The single victim of a court decision which violated the Fourteenth Amendment was protected in Chicago, B. & Q. R. v. Chicago, 166 U. S. 226; Scott v. McNeal, supra.

14 Cf. the right of the Supreme Court to go behind the state court's findings in cases under the contract clause, to ascertain whether a valid contract existed. Jefferson Branch Bank v. Skelly, 1 Black (U. S.) 436; McCullough v. Virginia, 172 U. S. 102. 15 R. S. 754-761.

have not finally disposed of the case,16 and even then the petitioner may be left to his writ of error to the United States Supreme Court.1 In the principal case, the petitioner relied upon a bald reassertion of the same facts which, as the petition showed, had been twice found untrue by the Supreme Court of Georgia. While, as has been seen, this conclusion is by no means binding, the majority may well be justified in refusing a hearing without the allegation of some additional facts or reasons why the state court's findings should be treated with such scant respect. The court may reasonably assume that the petitioner's case has been put in its strongest aspect on the petition. Any other rule of pleading would make the writ of habeas corpus peculiarly efficient as a weapon to prolong trials and postpone punishments.18

" 1

Authorities

THE MAXIM: NO PRESUMPTION UPON A PRESUMPTION. on the law of evidence generally agree with the remark of a recent textwriter that the term "presumption" is, in the law, "entirely superfluous" and "principally used, at the present time, on account of its convenient obscurity." This censure applies both to what are called "presumptions of law" and what are called "presumptions of fact." 2 The former is simply a cloak to cover various rules of substantive law. For instance, the courts really created a rule of property that adverse possession for twenty years bars the disseisee when they said that a lost grant would be "presumed" as a matter of law after that period. The latter is an imposing term usually signifying that the jury has been logical and reasonable in drawing certain inferences from proven facts. If there be obscurity due to failure to analyze and see in just what sense the word is used when used singly, it is doubly delusive when encountered in the common maxim, "there shall be no presumption upon a presumption." This doctrine, though capable of other interpretations, is limited in the books to the meaning that an inference, sometimes called a "presumption of fact," may not be based upon another inference, but must

16 Baker v. Grice, 169 U. S. 284; In re Wood, 140 U. S. 278. Cf. Gray, J., in Whitten v. Tomlinson, 160 U. S. 231, 240, "To adopt a different rule would unduly interfere with the exercise of the criminal jurisdiction of the several states and with the performance by this court of its proper duties."

17 See Cook v. Hart, 146 U. S. 183, 194; WILLOUGHBY, THE CONSTITUTION, § 71. 18 See CHURCH, HABEAS CORPUS, 149, n. 3; cf. GUTHRIE, FOURTEENTH AMENDMENT, 177 ff.

1 See 2 CHAMBERLAYNE, MODERN LAW OF EVIDENCE, § 1026; 4 WIGMORE, EVIDENCE, 2491; J. B. Thayer, "Presumptions and the Law of Evidence," 3 HARV. L. REV. 141, 166.

2 J. B. Thayer, supra, at p. 166. "In dealing with the subject of evidence it is expedient to avoid the use of these terms, presumptions of law and presumptions of fact, for they do not help the discussion, and they are worse than useless, from their ambiguity."

3 See J. B. Thayer, supra, at p. 148; BEST, EVIDENCE, 11 ed., § 304. "Presumptions of law are in reality rules of law and a part of the law itself." Doane v. Glenn, 1 Colo. 495, 504.

4 See BEST, EVIDENCE, § 304; CHAMBERLAYNE, EVIDENCE, § 1027. "A presumption of fact is an inference which a reasonable man would draw from certain facts which have been proved to him. Its basis is in logic; its source is in probability." Liverpool, etc. Ins. Co. v. Southern Pacific Co., 125 Cal. 434, 58 Pac. 55.