U.S. Supreme Court Johnson v. Zerbst, 304
U.S. 458 (1938) Johnson v. Zerbst No. 699 Argued April 4, 1938 Decided May 23, 1938 304
U.S. 458 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH
CIRCUIT Syllabus 1. A person charged with crime in a federal court is entitled by
the Sixth Amendment to the assistance of counsel for his defense.
P. 304 U. S.
462 .

															2. This right may be waived, but the waiver must be an
intelligent one, and whether there was such must depend upon the
particular facts and circumstances, including background,
experience, and conduct of accused. P. 304 U. S.
464 .

															3. It is a duty of a federal court in the trial of a criminal
case to protect the right of the accused to counsel, and, if he has
no counsel, to determine whether he has intelligently and
competently waived the right. It would be fitting that such
determination be made a matter of record. P. 304 U. S.
465 .

															4. If the accused is not represented by counsel and has not
competently and intelligently waived his constitutional right, the
Sixth Amendment stands as a jurisdictional bar to a valid
conviction and sentence depriving him of his life or his liberty.
P. 304 U. S.
468 .

															5. The question whether the assistance of counsel was
intelligently and competently waived by the prisoner at his trial
may be determined in habeas corpus proceedings on proofs aliunde. P. 304 U. S.
467 .

															92 F.2d 748, reversed.

															CERTIORARI, 303 U.S. 629, to review the affirmance of a judgment
of the District Court discharging a writ of habeas corpus. See 13 F. Supp.
253 .

															MR. JUSTICE BLACK delivered the opinion of the Court.

															Petitioner, while imprisoned in a federal penitentiary, was
denied habeas corpus by the District Court. [ Footnote 1 ] Later, Page 304 U. S. 459 that court granted petitioner a second hearing, prompted by

															"the peculiar circumstances surrounding the case and the desire
of the court to afford opportunity to present any additional facts
and views which petitioner desired to present."

															Upon consideration of the second petition, the court found that
it did "not substantially differ from the" first, "and for the
reasons stated in the decision in that case" the second petition
was also denied.

															Petitioner is serving sentence under a conviction in a United
States District Court for possessing and uttering counterfeit
money. It appears from the opinion of the District Judge denying
habeas corpus that he believed petitioner was deprived, in the
trial court, of his constitutional right under the provision of the
Sixth Amendment that "In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defence." [ Footnote 2 ]
However, he held that proceedings depriving petitioner of his
constitutional right to assistance of counsel were not
sufficient

															"to make the trial void and justify its annulment in a habeas
corpus proceeding, but that they constituted trial errors or
irregularities which could only be corrected on appeal."

															The Court of Appeals affirmed, [ Footnote 3 ] and we granted certiorari due to the
importance of the questions involved. [ Footnote 4 ]

															The record discloses that:

															Petitioner and one Bridwell were arrested in Charleston, South
Carolina, November 21, 1934, charged with Page 304 U. S. 460 feloniously uttering and passing four counterfeit twenty-dollar
Federal Reserve notes and possessing twenty-one such notes. Both
were then enlisted men in the United States Marine Corps, on leave.
They were bound over to await action of the United States Grand
Jury, but were kept in jail due to inability to give bail. January
21, 1935, they were indicted; January 23, 1935, they were taken to
court, and there first given notice of the indictment; immediately
were arraigned, tried, convicted and sentenced that day to four and
one-half years in the penitentiary, and January 25, were
transported to the Federal Penitentiary in Atlanta. While counsel
had represented them in the preliminary hearings before the
commissioner in which they -- some two months before their trial --
were bound over to the Grand Jury, the accused were unable to
employ counsel for their trial. Upon arraignment, both pleaded not
guilty, said that they had no lawyer, and -- in response to an
inquiry of the court -- stated that they were ready for trial. They
were then tried, convicted and sentenced, without assistance of
counsel.

															"Both petitioners lived in distant cities of other states, and
neither had relatives, friends, or acquaintances in Charleston.
Both had little education, and were without funds. They testified
that they had never been guilty of nor charged with any offense
before, and there was no evidence in rebuttal of these statements.
[ Footnote 5 ]"

															In the habeas corpus hearing, petitioner's evidence developed
that no request was directed to the trial judge to appoint counsel,
but that such request was made to the District Attorney, who
replied that, in the State of trial (South Carolina), the court did
not appoint counsel unless the defendant was charged with a capital
crime. The District Attorney denied that petitioner made
request Page 304 U. S. 461 to him for counsel or that he had indicated petitioner had no
right to counsel. The Assistant District Attorney testified that
Bridwell "cross-examined the witnesses"; and, in his opinion,
displayed more knowledge of procedure than the normal layman would
possess. He did not recall whether Bridwell addressed the jury or
not, but the clerk of the trial court testified "that Mr. Johnson
[Bridwell?] conducted his defence about as well as the average
layman usually does in cases of a similar nature." Concerning what
he said to the jury and his cross-examination of witnesses,
Bridwell testified

															"I tried to speak to the jury after the evidence was in during
my trial over in the Eastern District of South Carolina. I told the
jury, 'I don't consider myself a hoodlum as the District Attorney
has made me out several times.' I told the jury that I was not a
native of New York as the District Attorney stated, but was from
Mississippi, and only stationed for government service in New York.
I only said fifteen or twenty words. I said I didn't think I was a
hoodlum, and could not have been one of very long standing because
they didn't keep them in the Marine Corps."

															"I objected to one witness' testimony. I didn't ask him any
questions, I only objected to his whole testimony. After the
prosecuting attorney was finished with the witness, he said, 'Your
witness,' and I got up and objected to the testimony on the grounds
that it was all false, and the Trial Judge said any objection I had
I would have to bring proof or disproof."

															Reviewing the evidence on the petition for habeas corpus, the
District Court said [ Footnote
6 ] that, after trial, petitioner and Johnson

															". . . were remanded to jail, where they asked the jailer to
call a lawyer for them, but were not permitted to contact one. They
did not, however, undertake to get any message to the judge. " Page 304 U. S. 462 ". . . January 25th, they were transported by automobile to the
Federal Penitentiary in Atlanta, Ga. arriving . . . the same
day."

															"There, as is the custom, they were placed in isolation and so
kept for sixteen days without being permitted to communicate with
anyone except the officers of the institution, but they did see the
officers daily. They made no request of the officers to be
permitted to see a lawyer, nor did they ask the officers to present
to the trial judge a motion for new trial or application for appeal
or notice that they desired to move for a new trial or to take an
appeal."

															"On May 15, 1935, petitioners filed applications for appeal
which were denied because filed too late."

															The " . . . time for filing a motion for new trial and for
taking an appeal has been limited to three and five days."
[ Footnote 7 ] One. The Sixth Amendment guarantees that, "In all
criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence." This is one of the
safeguards of the Sixth Amendment deemed necessary to insure
fundamental human rights of life and liberty. Omitted from the
Constitution as originally adopted, provisions of this and other
Amendments were submitted by the first Congress convened under that
Constitution as essential barriers against arbitrary or unjust
deprivation of human rights. The Sixth Amendment stands as a
constant admonition that, if the constitutional safeguards it
provides be lost, justice will not "still be done." [ Footnote 8 ] It embodies a realistic
recognition of the obvious truth that the average defendant does
not have the professional legal skill to protect Page 304 U. S. 463 himself when brought before a tribunal with power to take his
life or liberty, wherein the prosecution is presented by
experienced and learned counsel. That which is simple, orderly and
necessary to the lawyer, to the untrained layman may appear
intricate, complex and mysterious. Consistently with the wise
policy of the Sixth Amendment and other parts of our fundamental
charter, this Court has pointed to " . . . the humane policy of the
modern criminal law . . ." which now provides that a defendant " .
. . if he be poor, . . . may have counsel furnished him by the
state . . . not infrequently . . . more able than the attorney for
the state." [ Footnote 9 ]

															The

															". . . right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel.
Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is
incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel, he may be put on trial
without a proper charge, and convicted upon incompetent evidence,
or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his
defence, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him.
[ Footnote 10 ]"

															The Sixth Amendment withholds from federal courts, [ Footnote 11 ] in all criminal
proceedings, the power and authority to deprive an accused of his
life or liberty unless he has or waives the assistance of
counsel. Page 304 U. S. 464 Two. There is insistence here that petitioner waived
this constitutional right. The District Court did not so find. It
has been pointed out that "courts indulge every reasonable
presumption against waiver" of fundamental constitutional rights,
[ Footnote 12 ] and that we
"do not presume acquiescence in the loss of fundamental rights."
[ Footnote 13 ] A waiver is
ordinarily an intentional relinquishment or abandonment of a known
right or privilege. The determination of whether there has been an
intelligent waiver of the right to counsel must depend, in each
case, upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of the
accused. Patton v. United States, 281 U.
S. 276 , decided that an accused may, under certain
circumstances, consent to a jury of eleven and waive the right to
trial and verdict by a constitutional jury of twelve men. The
question of waiver was there considered on direct appeal from the
conviction, and not by collateral attack on habeas corpus. However,
that decision may be helpful in indicating how, and in what manner,
an accused may -- before his trial results in final judgment and
conviction -- waive the right to assistance of counsel. The Patton ease noted approvingly a state court decision
[ Footnote 14 ] pointing out
that the humane policy of modern criminal law had altered
conditions which had existed in the "days when the accused could
not testify in his own behalf, [and] was not furnished Counsel,"
and which had made it possible to convict a man when he was
"without money, without counsel, without ability to summon
witnesses and not permitted to tell his own story, . . ." Page 304 U. S. 465 The constitutional right of an accused to be represented by
counsel invokes, of itself, the protection of a trial court in
which the accused -- whose life or liberty is at stake -- is
without counsel. This protecting duty imposes the serious and
weighty responsibility upon the trial judge of determining whether
there is an intelligent and competent waiver by the accused. While
an accused may waive the right to counsel, whether there is a
proper waiver should be clearly determined by the trial court, and
it would be fitting and appropriate for that determination to
appear upon the record. Three. The District Court, holding petitioner could not
obtain relief by habeas corpus, said:

															"It is unfortunate if petitioners lost their right to a new
trial through ignorance or negligence, but such misfortune cannot
give this Court jurisdiction in a habeas corpus case to review and
correct the errors complained of."

															The purpose of the constitutional guaranty of a right to counsel
is to protect an accused from conviction resulting from his own
ignorance of his legal and constitutional rights, and the guaranty
would be nullified by a determination that an accused's ignorant
failure to claim his rights removes the protection of the
Constitution. True, habeas corpus cannot be used as a means of
reviewing errors of law and irregularities -- not involving the
question of jurisdiction -- occurring during the course of trial;
[ Footnote 15 ] and the "writ
of habeas corpus cannot be used as a writ of error." [ Footnote 16 ] These principles,
however, must be construed and applied so as to preserve -- not
destroy -- constitutional safeguards of human life and liberty. The
scope of inquiry in habeas corpus proceedings has been broadened --
not narrowed -- since the adoption of the Sixth Page 304 U. S. 466 Amendment. In such a proceeding, "it would be clearly erroneous
to confine the inquiry to the proceedings and judgment of the trial
court," [ Footnote 17 ] and
the petitioned court has

															"power to inquire with regard to the jurisdiction of the
inferior court, either in respect to the subject matter or to the
person, even if such inquiry . . . [involves] an examination of
facts outside of, but not inconsistent with, the record. [ Footnote 18 ]"

															Congress has expanded the rights of a petitioner for habeas
corpus, [ Footnote 19 ] and
the

															". . . effect is to substitute for the bare legal review that
seems to have been the limit of judicial authority under the common
law practice, and under the Act of 31 Car. II, c. 2, a more
searching investigation, in which the applicant is put upon his
oath to set forth the truth of the matter respecting the causes of
his detention, and the court, upon determining the actual facts, is
to 'dispose of the party as law and justice require.'"

															"There being no doubt of the authority of the Congress to thus
liberalize the common law procedure on habeas corpus in order to
safeguard the liberty of all persons within the jurisdiction of the
United States against infringement through any violation of the
Constitution or a law or treaty established thereunder, it results
that, under the sections cited, a prisoner in custody pursuant to
the final judgment of a state court of criminal jurisdiction may
have a judicial inquiry in a court of the United States into the
very truth and substance of the causes of his detention, although
it may become necessary to look behind and beyond the record of his
conviction to a sufficient extent to test the jurisdiction of the
state court to proceed to a judgment against him. . . . " Page 304 U. S. 467 ". . . it is open to the courts of the United States upon an
application for a writ of habeas corpus to look beyond forms and
inquire into the very substance of the matter. . . . [ Footnote 20 ]"

															Petitioner, convicted and sentenced without the assistance of
counsel, contends that he was ignorant of his right to counsel, and
incapable of preserving his legal and constitutional rights during
trial. Urging that -- after conviction -- he was unable to obtain a
lawyer; was ignorant of the proceedings to obtain new trial or
appeal and the time limits governing both, and that he did not
possess the requisite skill or knowledge properly to conduct an
appeal, he says that it was -- as a practical matter -- impossible
for him to obtain relief by appeal. If these contentions be true in
fact, it necessarily follows that no legal procedural remedy is
available to grant relief for a violation of constitutional rights
unless the courts protect petitioner's rights by habeas corpus. Of
the contention that the law provides no effective remedy for such a
deprivation of rights affecting life and liberty, it may well be
said -- as in Mooney v. Holohan, 294 U.
S. 103 , 294 U. S. 113 -- that it "falls with the premise." To deprive a citizen of his
only effective remedy would not only be contrary to the
"rudimentary demands of justice," [ Footnote 21 ] but destructive of a constitutional guaranty
specifically designed to prevent injustice.

															Since the Sixth Amendment constitutionally entitles one charged
with crime to the assistance of counsel, compliance with this
constitutional mandate is an essential jurisdictional prerequisite
to a federal court's authority to deprive an accused of his life or
liberty. When this Page 304 U. S. 468 right is properly waived, the assistance of counsel is no longer
a necessary element of the court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not
represented by counsel and has not competently and intelligently
waived his constitutional right, the Sixth Amendment stands as a
jurisdictional bar to a valid conviction and sentence depriving him
of his life or his liberty. A court's jurisdiction at the beginning
of trial may be lost "in the course of the proceedings" due to
failure to complete the court -- as the Sixth Amendment requires --
by providing counsel for an accused who is unable to obtain
counsel, who has not intelligently waived this constitutional
guaranty, and whose life or liberty is at stake. [ Footnote 22 ] If this requirement of the
Sixth Amendment is not complied with, the court no longer has
jurisdiction to proceed. The judgment of conviction pronounced by a
court without jurisdiction is void, and one imprisoned thereunder
may obtain release by habeas corpus. [ Footnote 23 ] A judge of the United States -- to whom a
petition for habeas corpus is addressed -- should be alert to
examine "the facts for himself when if true as alleged they make
the trial absolutely void." [ Footnote 24 ]

															It must be remembered, however, that a judgment cannot be
lightly set aside by collateral attack, even on habeas corpus. When
collaterally attacked, the judgment of a court carries with it a
presumption of regularity. [ Footnote 25 ] Where a defendant, without counsel,
acquiesces in a trial resulting in his conviction and later seeks
release by the extraordinary remedy of habeas corpus, the burden of
proof rests upon him to establish that he did not competently and
intelligently waive his constitutional Page 304 U. S. 469 right to assistance of counsel. If, in a habeas corpus hearing,
he does meet this burden and convinces the court by a preponderance
of evidence that he neither had counsel nor properly waived his
constitutional right to counsel, it is the duty of the court to
grant the writ.

															In this case, petitioner was convicted without enjoying the
assistance of counsel. Believing habeas corpus was not an available
remedy, the District Court below made no findings as to waiver by
petitioner. In this state of the record, we deem it necessary to
remand the cause. If -- on remand -- the District Court finds from
all of the evidence that petitioner has sustained the burden of
proof resting upon him and that he did not competently and
intelligently waive his right to counsel, it will follow that the
trial court did not have jurisdiction to proceed to judgment and
conviction of petitioner, and he will therefore be entitled to have
his petition granted. If petitioner fails to sustain this burden,
he is not entitled to the writ.

															The cause is reversed and remanded to the District Court for
action in harmony with this opinion. Reversed. MR. JUSTICE REED concurs in the reversal.

															MR. JUSTICE McREYNOLDS is of opinion that the judgment of the
court below should be affirmed.

															MR. JUSTICE BUTLER is of the opinion that the record shows that
petitioner waived the right to have counsel, that the trial court
had jurisdiction, and that the judgment of the Circuit Court of
Appeals should be affirmed.

															MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.

															[ Footnote 1 ] 13 F. Supp.
253 .

															[ Footnote 2 ]

															The Sixth Amendment of the Constitution provides that,

															"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defence."

															[ Footnote 3 ]

															92 F.2d 748.

															[ Footnote 4 ]

															303 U.S. 629.

															[ Footnote 5 ]

															Opinion of the District Judge, 13 F. Supp.
253 , 254.

															[ Footnote 6 ] 13 F. Supp.
253 , 254.

															[ Footnote 7 ]

															13 F. Supp. at 256; see Rules of Practice and Procedure
(Criminal Appeals Rules), adopted May 7, 1934, II, III.

															[ Footnote 8 ] Cf. Palko v. Connecticut, 302 U.
S. 319 , 302 U. S.
325 .

															[ Footnote 9 ] Patton v. United States, 281 U.
S. 276 , 281 U. S.
308 .

															[ Footnote 10 ] Powell v. Alabama, 287 U. S. 45 , 287 U. S. 68 ,
69.

															[ Footnote 11 ] Cf., 32 U. S. The
Mayor, 7 Pet. 243, 32 U. S. 247 ; Edwards v.
Elliott , 21 Wall. 532, 88 U. S.
557 [ Footnote 12 ] Aetna Ins. Co. v. Kennedy, 301 U.
S. 389 , 301 U. S. 393 ; Hodges v. Easton, 106 U. S. 408 , 106 U. S.
412 .

															[ Footnote 13 ] Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292 , 301 U. S.
307 .

															[ Footnote 14 ] Hack v. State, 141 Wis. 346, 351, 124 N.W. 492.

															[ Footnote 15 ] Cf. 28 U. S. 3
Pet.193; Knewal v. Egan, 268 U. S. 442 ; Harlan v. McGourin, 218 U. S. 442 .

															[ Footnote 16 ] Woolsey v. Best, 299 U. S. 1 , 299 U. S. 2 .

															[ Footnote 17 ] Frank v. Mangum, 237 U. S. 309 , 237 U. S.
327 .

															[ Footnote 18 ] In re Mayfield, 141 U. S. 107 , 141 U. S. 116 ; Cuddy, Petitioner, 131 U. S. 280 .

															[ Footnote 19 ]

															28 U.S.C. ch. 14, § 451, et seq. [ Footnote 20 ] Frank v. Mangum, supra, 237 U. S. 330 , 237 U. S. 331 ; cf. Moore v. Dempsey, 261 U. S. 86 ; Mooney v. Holohan, 294 U. S. 103 ; Hans Nielsen, Petitioner, 131 U.
S. 176 .

															[ Footnote 21 ] Cf. Mooney v. Holohan, supra, 294 U. S.
112 .

															[ Footnote 22 ] Cf., Frank v. Mangum, supra, 237 U. S.
327 .

															[ Footnote 23 ] Hans Nielsen, Petitioner, supra. [ Footnote 24 ] Cf. Moore v. Dempsey, 261 U. S. 86 , 261 U. S. 92 ; Patton v. United States, 281 U. S. 276 , 281 U. S. 312 , 281 U. S. 313 .

															[ Footnote 25 ] Cuddy, Petitioner, supra.


U.S. Supreme Court Powell v. Alabama, 287 U.S.
45 (1932) Powell v. Alabama Nos. 98, 99, and 100 Argued October 10,
1932 Decided November 7,
1932 287 U.S.
45 CERTIORARI TO THE SUPREME COURT OF
ALABAMA Syllabus 1. The rule denying the aid of counsel to persons charged with
felony, which (except as to legal questions) existed in England Page 287 U. S. 46 when our Constitution was formed, was rejected in this country
by the Colonies before the Declaration of Independence, and is not
a test of whether the right to counsel in such cases is embraced in
the guarantee of "due process of law." P. 287 U. S.
65 .

															2. The rule that no part of the Constitution shall be treated as
superfluous is an aid to construction which, in some instances, may
be conclusive, but which must yield to more compelling
considerations whenever they exist. P. 287 U. S.
67 .

															3. The fact that the right of an accused person to have counsel
for his defense was guaranteed expressly (as respects the federal
Government) by the Sixth Amendment, notwithstanding the presence of
the due process clause in the Fifth Amendment, does not exclude
that right from the concept "due process of law." Pp. 287 U. S.
66 -68.

															4. The right of the accused, at least in a capital case, to have
the aid of counsel for his defense, which includes the right to
have sufficient time to advise with counsel and to prepare a
defense, is one of the fundamental rights guaranteed by the due
process clause of the Fourteenth Amendment. Pp. 287 U. S.
68 -71.

															5. In a capital case, where the defendant is unable to employ
counsel and is incapable of making his own defense adequately
because of ignorance, feeble-mindedness, 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, and
that duty is not discharged by an assignment at such a time and
under such circumstances as to preclude the giving of effective aid
in the preparation and trial of the case. P. 287 U. S.
71 .

															6. In a case such as this, the right to have counsel appointed,
when necessary, is a logical corollary to the right to be heard by
counsel. P. 287 U. S.
72 .

															7. In such circumstances, the trial court has power, even in the
absence of statute, to appoint an attorney for the accused, and the
attorney, as an officer of the court, is bound to serve. P. 287 U. S.
73 .

															224 Ala. 524, 531, 540, reversed.

															CERTIORARI, 286 U.S. 540, to review judgments affirming
sentences to death based upon convictions for rape. There was one
indictment against these petitioners and two other persons. The
petitioners were tried in three groups, as shown in the caption,
pursuant to an order of severance obtained by the State. Page 287 U. S. 49 MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

															These cases were argued together and submitted for decision as
one case.

															The petitioners, hereinafter referred to as defendants, are
negroes charged with the crime of rape, committed upon the persons
of two white girls. The crime is said to have been committed on
March 25, 1931. The indictment was returned in a state court of
first instance on March 31, and the record recites that, on the
same day, the defendants were arraigned and entered pleas of not
guilty. There is a further recital to the effect that, upon the
arraignment, they were represented by counsel. But no counsel had
been employed, and aside from a statement made by the trial judge
several days later during a colloquy immediately preceding the
trial, the record does not disclose when, or under what
circumstances, an appointment of counsel was made, or who was
appointed. During the colloquy referred to, the trial judge, in
response to a question, said that he had appointed all the members
of the bar for the purpose of arraigning the defendants, and then,
of course, anticipated that the members of the bar would continue
to help the defendants if no counsel appeared. Upon the argument
here, both sides accepted that as a correct statement of the facts
concerning the matter.

															There was a severance upon the request of the state, and the
defendants were tried in three several groups, as indicated above.
As each of the three cases was called for trial, each defendant was
arraigned, and, having the Page 287 U. S. 50 indictment read to him, entered a plea of not guilty. Whether
the original arraignment and pleas were regarded as ineffective is
not shown. Each of the three trials was completed within a single
day. Under the Alabama statute, the punishment for rape is to be
fixed by the jury, and, in its discretion, may be from ten years'
imprisonment to death. The juries found defendants guilty and
imposed the death penalty upon all. The trial court overruled
motions for new trials and sentenced the defendants in accordance
with the verdicts. The judgments were affirmed by the state supreme
court. Chief Justice Anderson thought the defendants had not been
accorded a fair trial, and strongly dissented. 224 Ala. 524; id., 531; id., 540, 141 So. 215, 195, 201.

															In this court, the judgments are assailed upon the grounds that
the defendants, and each of them, were denied due process of law
and the equal protection of the laws in contravention of the
Fourteenth Amendment, specifically as follows: (1) they were not
given a fair, impartial and deliberate trial; (2) they were denied
the right of counsel, with the accustomed incidents of consultation
and opportunity of preparation for trial, and (3) they were tried
before juries from which qualified members of their own race were
systematically excluded. These questions were properly raised and
saved in the courts below.

															The only one of the assignments which we shall consider is the
second, in respect of the denial of counsel, and it becomes
unnecessary to discuss the facts of the case or the circumstances
surrounding the prosecution except insofar as they reflect light
upon that question.

															The record shows that, on the day when the offense is said to
have been committed, these defendants, together with a number of
other negroes, were upon a freight train on its way through
Alabama. On the same train were seven white boys and the two white
girls. A fight took Page 287 U. S. 51 place between the negroes and the white boys in the course of
which the white boys, with the exception of one named Gilley, were
thrown off the train. A message was sent ahead, reporting the fight
and asking that every negro be gotten off the train. The
participants in the fight, and the two girls, were in an open
gondola car. The two girls testified that each of them was
assaulted by six different negroes in turn, and they identified the
seven defendants as having been among the number. None of the white
boys was called to testify, with the exception of Gilley, who was
called in rebuttal.

															Before the train reached Scottsboro, Alabama, a sheriff's posse
seized the defendants and two other negroes. Both girls and the
negroes then were taken to Scottsboro, the county seat. Word of
their coming and of the alleged assault had preceded them, and they
were met at Scottsboro by a large crowd. It does not sufficiently
appear that the defendants were seriously threatened with, or that
they were actually in danger of, mob violence, but it does appear
that the attitude of the community was one of great hostility. The
sheriff thought it.necessary to call for the militia to assist in
safeguarding the prisoners. Chief Justice Anderson pointed out in
his opinion that every step taken from the arrest and arraignment
to the sentence was accompanied by the military. Soldiers took the
defendants to Gadsden for safekeeping, brought them back to
Scottsboro for arraignment, returned them to Gadsden for
safekeeping while awaiting trial, escorted them to Scottsboro for
trial a few days later, and guarded the courthouse and grounds at
every stage of the proceedings. It is perfectly apparent that the
proceedings, from beginning to end, took place in an atmosphere of
tense, hostile and excited public sentiment. During the entire
time, the defendants were closely confined or were under military
guard. The record does not disclose their ages, except that one of
them was nineteen; but the Page 287 U. S. 52 record clearly indicates that most, if not all, of them were
youthful, and they are constantly referred to as "the boys." They
were ignorant and illiterate. All of them were residents of other
states, where alone members of their families or friends
resided.

															However guilty defendants, upon due inquiry, might prove to have
been, they were, until convicted, presumed to be innocent. It was
the duty of the court having their cases in charge to see that they
were denied no necessary incident of a fair trial. With any error
of the state court involving alleged contravention of the state
statutes or constitution we, of course, have nothing to do. The
sole inquiry which we are permitted to make is whether the federal
Constitution was contravened ( Rogers v. Peck, 199 U.
S. 425 , 199 U. S. 434 ; Hebert v. Louisiana, 272 U. S. 312 , 272 U. S.
316 ), and as to that, we confine ourselves, as already
suggested, to the inquiry whether the defendants were in substance
denied the right of counsel, and, if so, whether such denial
infringes the due process clause of the Fourteenth Amendment. First. The record shows that, immediately upon the
return of the indictment, defendants were arraigned, and pleaded
not guilty. Apparently they were not asked whether they had, or
were able to, employ counsel, or wished to have counsel appointed,
or whether they had friends or relatives who might assist in that
regard if communicated with. That it would not have been an idle
ceremony to have given the defendants reasonable opportunity to
communicate with their families and endeavor to obtain counsel is
demonstrated by the fact that, very soon after conviction, able
counsel appeared in their behalf. This was pointed out by Chief
Justice Anderson in the course of his dissenting opinion. "They
were nonresidents," he said,

															"and had little time or opportunity to get in touch with their
families and friends who were scattered throughout two other
states, and time has demonstrated Page 287 U. S. 53 that they could or would have been represented by able counsel
had a better opportunity been given by a reasonable delay in the
trial of the cases, judging from the number and activity of counsel
that appeared immediately or shortly after their conviction."

															224 Ala. at pp. 554-555, 141 So. 201.

															It is hardly necessary to say that, the right to counsel being
conceded, a defendant should be afforded a fair opportunity to
secure counsel of his own choice. Not only was that not done here,
but such designation of counsel as was attempted was either so
indefinite or so close upon the trial as to amount to a denial of
effective and substantial aid in that regard. This will be amply
demonstrated by a brief review of the record.

															April 6, six days after indictment, the trials began. When the
first case was called, the court inquired whether the parties were
ready for trial. The state's attorney replied that he was ready to
proceed. No one answered for the defendants or appeared to
represent or defend them. Mr. Roddy, a Tennessee lawyer not a
member of the local bar, addressed the court, saying that he had
not been employed, but that people who were interested had spoken
to him about the case. He was asked by the court whether he
intended to appear for the defendants, and answered that he would
like to appear along with counsel that the court might appoint. The
record then proceeds:

															"The Court: If you appear for these defendants, then I will not
appoint counsel; if local counsel are willing to appear and assist
you under the circumstances, all right, but I will not appoint
them."

															"Mr. Roddy: Your Honor has appointed counsel, is that
correct?"

															"The Court: I appointed all the members of the bar for the
purpose of arraigning the defendants, and then, of course, I
anticipated them to continue to help them if no counsel appears.
" Page 287 U. S. 54 "Mr Roddy: Then I don't appear then as counsel, but I do want to
stay in, and not be ruled out in this case."

															"The Court: Of course, I would not do that --"

															"Mr. Roddy: I just appear here through the courtesy of Your
Honor."

															"The Court: Of course, I give you that right; . . ."

															And then, apparently addressing all the lawyers present, the
court inquired:

															". . . well, are you all willing to assist?"

															"Mr. Moody: Your Honor appointed us all, and we have been
proceeding along every line we know about it under Your Honor's
appointment."

															"The Court: The only thing I am trying to do is, if counsel
appears for these defendants, I don't want to impose on you all,
but if you feel like counsel from Chattanooga --"

															"Mr. Moody: I see his situation, of course, and I have not run
out of anything yet. Of course, if Your Honor purposes to appoint
us, Mr. Parks, I am willing to go on with it. Most of the bar have
been down and conferred with these defendants in this case; they
did not know what else to do."

															"The Court: The thing, I did not want to impose on the members
of the bar if counsel unqualifiedly appears; if you all feel like
Mr. Roddy is only interested in a limited way to assist, then I
don't care to appoint --"

															"Mr. Parks: Your Honor, I don't feel like you ought to impose on
any member of the local bar if the defendants are represented by
counsel."

															"The Court: That is what I was trying to ascertain, Mr.
Parks."

															"Mr. Parks: Of course, if they have counsel, I don't see the
necessity of the Court appointing anybody; if they haven't counsel,
of course, I think it is up to the Court to appoint counsel to
represent them. " Page 287 U. S. 55 "The Court: I think you are right about it, Mr. Parks, and that
is the reason I was trying to get an expression from Mr.
Roddy."

															"Mr. Roddy: I think Mr. Parks is entirely right about it, if I
was paid down here and employed, it would be a different thing, but
I have not prepared this case for trial, and have only been called
into it by people who are interested in these boys from
Chattanooga. Now, they have not given me an opportunity to prepare
the case, and I am not familiar with the procedure in Alabama, but
I merely came down here as a friend of the people who are
interested, and not as paid counsel, and certainly I haven't any
money to pay them, and nobody I am interested in had me to come
down here has put up any fund of money to come down here and pay
counsel. If they should do it, I would be glad to turn it over -- a
counsel but I am merely here at the solicitation of people who have
become interested in this case without any payment of fee and
without any preparation for trial, and I think the boys would be
better off if I step entirely out of the case according to my way
of looking at it and according to my lack of preparation of it and
not being familiar with the procedure in Alabama, . . ."

															Mr. Roddy later observed:

															"If there is anything I can do to be of help to them, I will be
glad to do it; I am interested to that extent."

															"The Court: Well gentlemen, if Mr. Roddy only appears as
assistant that way, I think it is proper that I appoint members of
this bar to represent them, I expect that is right. If Mr. Roddy
will appear, I wouldn't of course, I would not appoint anybody. I
don't see, Mr. Roddy, how I can make a qualified appointment or a
limited appointment. Of course, I don't mean to cut off your
assistance in any way -- Well gentlemen, I think you understand it.
" Page 287 U. S. 56 "Mr. Moody: I am willing to go ahead and help Mr. Roddy in
anything I can do about it, under the circumstances."

															"The Court: All right, all the lawyers that will; of course, I
would not require a lawyer to appear if --"

															"Mr. Moody: I am willing to do that for him as a member of the
bar; I will go ahead and help do anything I can do."

															"The Court: All right."

															And in this casual fashion, the matter of counsel in a capital
case was disposed of.

															It thus will be seen that, until the very morning of the trial,
no lawyer had been named or definitely designated to represent the
defendants. Prior to that time, the trial judge had "appointed all
the members of the bar" for the limited "purpose of arraigning the
defendants." Whether they would represent the defendants thereafter
if no counsel appeared in their behalf was a matter of speculation
only, or, as the judge indicated, of mere anticipation on the part
of the court. Such a designation, even if made for all purposes,
would, in our opinion, have fallen far short of meeting, in any
proper sense, a requirement for the appointment of counsel. How
many lawyers were members of the bar does not appear, but, in the
very nature of things, whether many or few, they would not, thus
collectively named, have been given that clear appreciation of
responsibility or impressed with that individual sense of duty
which should and naturally would accompany the appointment of a
selected member of the bar, specifically named and assigned.

															That this action of the trial judge in respect of appointment of
counsel was little more than an expansive gesture, imposing no
substantial or definite obligation upon any one, is borne out by
the fact that, prior to the calling of the case for trial on April
6, a leading member of the local bar accepted employment on the
side of the prosecution Page 287 U. S. 57 and actively participated in the trial. It is true that he said
that, before doing so, he had understood Mr. Roddy would be
employed as counsel for the defendants. This the lawyer in
question, of his own accord, frankly stated to the court, and no
doubt he acted with the utmost good faith. Probably other members
of the bar had a like understanding. In any event, the circumstance
lends emphasis to the conclusion that, during perhaps the most
critical period of the proceedings against these defendants, that
is to say, from the time of their arraignment until the beginning
of their trial, when consultation, thoroughgoing investigation and
preparation were vitally important, the defendants did not have the
aid of counsel in any real sense, although they were as much
entitled to such aid during that period as at the trial itself. People ex rel. Burgess v. Risley, 66 How.Pr. (N.Y.) 67; Batchelor v. State, 189 Ind. 69, 76, 125 N.E. 773.

															Nor do we think the situation was helped by what occurred on the
morning of the trial. At that time, as appears from the colloquy
printed above, Mr. Roddy stated to the court that he did not appear
as counsel, but that he would like to appear along with counsel
that the court might appoint; that he had not been given an
opportunity to prepare the case; that he was not familiar with the
procedure in Alabama, but merely came down as a friend of the
people who were interested; that he thought the boys would be
better off if he should step entirely out of the case. Mr. Moody, a
member of the local bar, expressed a willingness to help Mr. Roddy
in anything he could do under the circumstances. To this, the court
responded, "All right, all the lawyers that will; of course, I
would not require a lawyer to appear if -- ." And Mr. Moody
continued, "I am willing to do that for him as a member of the bar;
I will go ahead and help do anything I can do." With this dubious
understanding, the trials immediately proceeded. The defendants,
young, ignorant, Page 287 U. S. 58 illiterate, surrounded by hostile sentiment, haled back and
forth under guard of soldiers, charged with an atrocious crime
regarded with especial horror in the community where they were to
be tried, were thus put in peril of their lives within a few
moments after counsel for the first time charged with any degree of
responsibility began to represent them.

															It is not enough to assume that counsel thus precipitated into
the case thought there was no defense, and exercised their best
judgment in proceeding to trial without preparation. Neither they
nor the court could say what a prompt and thoroughgoing
investigation might disclose as to the facts. No attempt was made
to investigate. No opportunity to do so was given. Defendants were
immediately hurried to trial. Chief Justice Anderson, after
disclaiming any intention to criticize harshly counsel who
attempted to represent defendants at the trials, said: " . . . the
record indicates that the appearance was rather pro forma than zealous and active. . . ." Under the circumstances disclosed,
we hold that defendants were not accorded the right of counsel in
any substantial sense. To decide otherwise would simply be to
ignore actualities. This conclusion finds ample support in the
reasoning of an overwhelming array of state decisions, among which
we cite the following: Sheppard v. State, 165 Ga. 460,
464, 141 S.E. 196; Reliford v. State, 140 Ga. 777, 79 S.E.
1128; McArver v. State, 114 Ga. 514, 40 S.E. 779; Sanchez v. State, 199 Ind. 235, 246, 157 N.E. l; Batchelor v. State, 189 Ind. 69, 76, 125 N.E. 773; Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W. (2d) 823; Jackson v. Commonwealth, 215 Ky. 800, 287 S.W. 17; State v. Collins, 104 La. 629, 29 So. 180; State v.
Pool, 50 La.Ann. 449, 23 So. 503; People ex rel. Burgess
v. Risley, 66 How.Pr.(N.Y.) 67; State ex rel. Tucker v.
Davis, 9 Okla.Cr. 94, 130 Pac. 962; Commonwealth v.
O'Keefe, 298 Pa. 169, Page 287 U. S. 59 148 Atl. 73; Shaffer v. Territory, 14 Ariz. 329, 333,
127 Pac. 746.

															It is true that great and inexcusable delay in the enforcement
of our criminal law is one of the grave evils of our time.
Continuances are frequently granted for unnecessarily long periods
of time, and delays incident to the disposition of motions for new
trial and hearings upon appeal have come in many cases to be a
distinct reproach to the administration of justice. The prompt
disposition of criminal cases is to be commended and encouraged.
But, in reaching that result, a defendant, charged with a serious
crime, must not be stripped of his right to have sufficient time to
advise with counsel and prepare his defense. To do that is not to
proceed promptly in the calm spirit of regulated justice, but to go
forward with the haste of the mob.

															As the court said in Commonwealth v. O'Keefe, 298 Pa.
169, 173, 148 Atl. 73:

															"It is vain to give the accused a day in court with no
opportunity to prepare for it, or to guarantee him counsel without
giving the latter any opportunity to acquaint himself with the
facts or law of the case."

															" * * * *" "A prompt and vigorous administration of the criminal law is
commendable, and we have no desire to clog the wheels of justice.
What we here decide is that to force a defendant, charged with a
serious misdemeanor, to trial within five hours of his arrest is
not due process of law, regardless of the merits of the case." Compare Reliford v. State, 140 Ga. 777, 778, 79 S.E.
1128. Second. The Constitution of Alabama provides that, in
all criminal prosecutions the accused shall enjoy the right to have
the assistance of counsel, and a state statute requires the court
in a capital case where the defendant Page 287 U. S. 60 is unable to employ counsel to appoint counsel for him. The
state supreme court held that these provisions had not been
infringed, and with that holding we are powerless to interfere. The
question, however, which it is our duty, and within our power, to
decide is whether the denial of the assistance of counsel
contravenes the due process clause of the Fourteenth Amendment to
the federal Constitution.

															If recognition of the right of a defendant charged with a felony
to have the aid of counsel depended upon the existence of a similar
right at common law as it existed in England when our Constitution
was adopted, there would be great difficulty in maintaining it as
necessary to due process. Originally, in England, a person charged
with treason or felony was denied the aid of counsel, except in
respect of legal questions which the accused himself might suggest.
At the same time, parties in civil cases and persons accused of
misdemeanors were entitled to the full assistance of counsel. After
the revolution of 1688, the rule was abolished as to treason, but
was otherwise steadily adhered to until 1836, when, by act of
Parliament, the full right was granted in respect of felonies
generally. 1 Cooley's Const.Lim., 8th ed., 698, et seq., and notes.

															An affirmation of the right to the aid of counsel in petty
offenses, and its denial in the case of crimes of the gravest
character, where such aid is most needed, is so outrageous and so
obviously a perversion of all sense of proportion that the rule was
constantly, vigorously, and sometimes passionately assailed by
English statesmen and lawyers. As early as 1758, Blackstone,
although recognizing that the rule was settled at common law,
denounced it as not in keeping with the rest of the humane
treatment of prisoners by the English law. "For upon what face of
reason," he says, "can that assistance be denied Page 287 U. S. 61 to save the life of a man which yet is allowed him in
prosecutions for every petty trespass?" 4 Blackstone 355. One of
the grounds upon which Lord Coke defended the rule was that, in
felonies, the court itself was counsel for the prisoner. 1 Cooley's
Const.Lim., supra. But how can a judge, whose functions
are purely judicial, effectively discharge the obligations of
counsel for the accused? He can and should see to it that, in the
proceedings before the court, the accused shall be dealt with
justly and fairly. He cannot investigate the facts, advise and
direct the defense, or participate in those necessary conferences
between counsel and accused which sometimes partake of the
inviolable character of the confessional.

															The rule was rejected by the colonies. Before the adoption of
the federal Constitution, the Constitution of Maryland had declared
"That, in all criminal prosecutions, every man hath a right . . .
to be allowed counsel; . . ." (Art. XIX, Constitution of 1776). The
Constitution of Massachusetts, adopted in 1780 (Part the First,
Art. XII), the Constitution of New Hampshire, adopted in 1784 (Part
I, Art. XV), the Constitution of New York of 1777 (Art. XXXIV), and
the Constitution of Pennsylvania of 1776 (Art. IX), had also
declared to the same effect. And, in the case of Pennsylvania, as
early as 1701, the Penn Charter (Art. V) declared that "all
Criminals shall have the same Privileges of Witnesses and Council
as their Prosecutors", and there was also a provision in the
Pennsylvania statute of May 31, 1718 (Dallas, Laws of Pennsylvania,
1700-1781, Vol. 1, p. 134) that, in capital cases, learned counsel
should be assigned to the prisoners.

															In Delaware, the Constitution of 1776 (Art. 25), adopted the
common law of England, but expressly excepted such parts as were
repugnant to the rights and privileges contained in the Declaration
of Rights, and the Declaration of Rights, which was adopted on
September Page 287 U. S. 62 11, 1776, provided (Art. 14) "That in all Prosecutions for
criminal Offences, every Man hath a Right . . . to be allowed
Counsel, . . ." In addition, Penn's Charter, already referred to,
was applicable in Delaware. The original Constitution of New Jersey
of 1776 (Art. XVI) contained a provision like that of the Penn
Charter, to the effect that all criminals should be admitted to the
same privileges of counsel as their prosecutors. The original
Constitution of North Carolina (1776) did not contain the
guarantee, but c. 115, § 85, Sess.Laws, N.Car., 1777
(N.Car.Rev.Laws, 1715-1796, Vol. 1, 316), provided

															". . . That every person accused of any crime or misdemeanor
whatsoever shall be entitled to council in all matters which may be
necessary for his defence, as well to facts as to law; . . ."

															Similarly, in South Carolina, the original Constitution of 1776
did not contain the provision as to counsel, but it was provided as
early as 1731 (Act of August 20, 1731, § XLIII, Grimke,
S.Car.Pub.Laws, 1682-1790, p. 130) that every person charged with
treason, murder, felony, or other capital offense should be
admitted to make full defense by counsel learned in the law. In
Virginia, there was no constitutional provision on the subject,
but, as early as August, 1734 (c. VII, § III, Laws of Va. 8th Geo.
II, Hening's Stat. at Large, Vol. 4, p. 404), there was an act
declaring that, in all trials for capital offenses, the prisoner,
upon his petition to the court, should be allowed counsel.

															The original Constitution of Connecticut (Art. I, § 9) contained
a provision that, "In all criminal prosecutions, the accused shall
have the right to be heard by himself and by counsel"; but this
constitution was not adopted until 1818. However, it appears that
the English common law rule had been rejected in practice long
prior to 1796. See Zephaniah Swift's "A System of the Laws
of the State of Connecticut," printed at Windham by John Page 287 U. S. 63 Byrne, 1795-1796, Vol. II, Bk. 5, "Of Crimes and Punishments,"
c. XXIV, "Of Trials," pp. 398-399. * The original Constitution of Georgia (1777) did not contain a
guarantee in respect of counsel, but the Constitution of 1798 (Art.
III, § 8) provided that

															". . . no person shall be debarred from advocating or defending
his cause before any court or tribunal, either by himself or
counsel, or both."

															What the practice was prior to 1798 we are unable to discover.
The first constitution adopted by Rhode Island was in 1842, and
this constitution contained the usual guarantee in respect of the
assistance of counsel in criminal prosecutions. As early as 1798,
it was provided by statute, in the very language of the Sixth
Amendment to the Federal Constitution, that, "In all criminal
prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defence; . . ." Page 287 U. S. 64 An Act Declaratory of certain Rights of the People of this
State, § 6, Rev.Pub.Laws, Rhode Island and Providence Plantations,
1798. Furthermore, while the statute itself is not available, it is
recorded as a matter of history that, in 1668 or 1669, the colonial
assembly enacted that any person who was indicted might employ an
attorney to plead in his behalf. 1 Arnold, History of Rhode Island,
336.

															It thus appears that, in at least twelve of the thirteen
colonies, the rule of the English common law, in the respect now
under consideration, had been definitely rejected, and the right to
counsel fully recognized in all Page 287 U. S. 65 criminal prosecutions, save that, in one or two instances, the
right was limited to capital offenses or to the more serious
crimes, and this court seems to have been of the opinion that this
was true in all the colonies. In Holden v. Hardy, 169 U. S. 366 , 169 U. S. 386 ,
Mr. Justice Brown, writing for the court, said:

															"The earlier practice of the common law, which denied the
benefit of witnesses to a person accused of felony, had been
abolished by statute, though, so far as it deprived him of the
assistance of counsel and compulsory process for the attendance of
his witnesses, it had not been changed in England. But to the
credit of her American colonies, let it be said that so oppressive
a doctrine had never obtained a foothold there."

															One test which has been applied to determine whether due process
of law has been accorded in given instances is to ascertain what
were the settled usages and modes of proceeding under the common
and statute law of England before the Declaration of Independence,
subject, however, to the qualification that they be shown not to
have been unsuited to the civil and political conditions of our
ancestors by having been followed in this country after it became a
nation. Lowe v. Kansas, 163 U. S. 81 , 163 U. S. 85 . Compare 59 U. S. Hoboken
Land & Improvement Co., 18 How. 272, 59 U. S.
276 -277; Twining v. New Jersey, 211 U. S.
78 , 211 U. S.
100 -101. Plainly, as appears from the foregoing, this
test, as thus qualified, has not been met in the present case.

															We do not overlook the case of Hurtado v. California, 110 U. S. 516 ,
where this court determined that due process of law does not
require an indictment by a grand jury as a prerequisite to
prosecution by a state for murder. In support of that conclusion
the court (pp. 110 U. S.
534 -535) referred to the fact that the Fifth Amendment,
in addition to containing the due process of law clause,
provides Page 287 U. S. 66 in explicit terms that "No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, . . . ", and said that, since no part
of this important amendment could be regarded as superfluous, the
obvious inference is that, in the sense of the Constitution, due
process of law was not intended to include, ex vi termini, the institution and procedure of a grand jury in any case, and that
the same phrase, employed in the Fourteenth Amendment to restrain
the action of the states, was to be interpreted as having been used
in the same sense and with no greater extent, and that, if it had
been the purpose of that Amendment to perpetuate the institution of
the grand jury in the states, it would have embodied, as did the
Fifth Amendment, an express declaration to that effect.

															The Sixth Amendment, in terms, provides that, in all criminal
prosecutions, the accused shall enjoy the right "to have the
assistance of counsel for his defense." In the face of the
reasoning of the Hurtado case, if it stood alone, it would
be difficult to justify the conclusion that the right to counsel,
being thus specifically granted by the Sixth Amendment, was also
within the intendment of the due process of law clause. But the Hurtado case does not stand alone. In the later case of Chicago, Burlington & Quincy R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 241 ,
this court held that a judgment of a state court, even though
authorized by statute, by which private property was taken for
public use without just compensation, was in violation of the due
process of law required by the Fourteenth Amendment notwithstanding
that the Fifth Amendment explicitly declares that private property
shall not be taken for public use without just compensation. This
holding was followed in Norwood v. Baker, 172 U.
S. 269 , 172 U. S. 277 ; Smyth v. Ames, 169 U. S. 466 , 169 U. S. 524 ,
and San Diego Land Co. v. National City, 174 U.
S. 739 , 174 U. S.
754 . Page 287 U. S. 67 Likewise, this court has considered that freedom of speech and
of the press are rights protected by the due process clause of the
Fourteenth Amendment, although in the First Amendment, Congress is
prohibited in specific terms from abridging the right. Gitlow
v. New York, 268 U. S. 652 , 268 U. S. 666 ; Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S.
707 .

															These later cases establish that, notwithstanding the sweeping
character of the language in the Hurtado case, the rule
laid down is not without exceptions. The rule is an aid to
construction, and in some instances may be conclusive, but it must
yield to more compelling considerations whenever such
considerations exist. The fact that the right involved is of such a
character that it cannot be denied without violating those
"fundamental principles of liberty and justice which lie at the
base of all our civil and political institutions" ( Hebert v.
Louisiana, 272 U. S. 312 , 272 U. S.
316 ), is obviously one of those compelling
considerations which must prevail in determining whether it is
embraced within the due process clause of the Fourteenth Amendment,
although it be specifically dealt with in another part of the
federal Constitution. Evidently this court, in the later cases
enumerated, regarded the rights there under consideration as of
this fundamental character. That some such distinction must be
observed is foreshadowed in Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 99 ,
where Mr. Justice Moody, speaking for the court, said that

															". . . it is possible that some of the personal rights
safeguarded by the first eight Amendments against National action
may also be safeguarded against state action, because a denial of
them would be a denial of due process of law. Chicago,
Burlington & Quincy R. Co. v. Chicago, 166 U. S.
226 . If this is so, it is not because those rights are
enumerated in the first eight Amendments, but because they are of
such a nature that they are included in Page 287 U. S. 68 the conception of due process of law."

															While the question has never been categorically determined by
this court, a consideration of the nature of the right and a review
of the expressions of this and other courts, makes it clear that
the right to the aid of counsel is of this fundamental
character.

															It never has been doubted by this court, or any other, so far as
we know, that notice and hearing are preliminary steps essential to
the passing of an enforceable judgment, and that they, together
with a legally competent tribunal having jurisdiction of the case,
constitute basic elements of the constitutional requirement of due
process of law. The words of Webster, so often quoted, that, by
"the law of the land" is intended "a law which hears before it
condemns" have been repeated in varying forms of expression in a
multitude of decisions. In Holden v. Hardy, 169 U.
S. 366 , 169 U. S. 389 ,
the necessity of due notice and an opportunity of being heard is
described as among the "immutable principles of justice which
inhere in the very idea of free government which no member of the
Union may disregard." And Mr. Justice Field, in an earlier case, Galpin v.
Page , 18 Wall. 350, 85 U. S.
368 -369, said that the rule that no one shall be
personally bound until he has had his day in court was as old as
the law, and it meant that he must be cited to appear and afforded
an opportunity to be heard.

															"Judgment without such citation and opportunity wants all the
attributes of a judicial determination; it is judicial usurpation
and oppression, and never can be upheld where justice is justly
administered."

															Citations to the same effect might be indefinitely multiplied,
but there is no occasion for doing so.

															What, then, does a hearing include? Historically and in
practice, in our own country, at least, it has always included the
right to the aid of counsel when desired and provided by the party
asserting the right. The right Page 287 U. S. 69 to be heard would be, in many cases, of little avail if it did
not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the guiding hand of
counsel at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction because
he does not know how to establish his innocence. If that be true of
men of intelligence, how much more true is it of the ignorant and
illiterate, or those of feeble intellect. If in any case, civil or
criminal, a state or federal court were arbitrarily to refuse to
hear a party by counsel, employed by and appearing for him, it
reasonably may not be doubted that such a refusal would be a denial
of a hearing, and, therefore, of due process in the constitutional
sense.

															The decisions all point to that conclusion. In Cooke v.
United States, 267 U. S. 517 , 267 U. S. 537 ,
it was held that, where a contempt was not in open court, due
process of law required charges and a reasonable opportunity to
defend or explain. The court added, "We think this includes the
assistance of counsel, if requested, . . ." In numerous other
cases, the court, in determining that due process was accorded, has
frequently stressed the fact that the defendant had the aid of
counsel. See, for example, Felts v. Murphy, 201 U.
S. 123 , 201 U. S. 129 ; Frank v. Mangum, 237 U. S. 309 , 237 U. S. 344 ; Kelley v. Oregon, 273 U. S. 589 , 273 U. S. 591 .
In Ex parte Hidekuni Iwata, 219 Fed. 610, 611, the federal
district Page 287 U. S. 70 judge enumerated among the elements necessary to due process of
law in a deportation case the opportunity at some stage of the
hearing to secure and have the advice and assistance of counsel. In Ex parte Chin Loy You, 223 Fed. 833, also a deportation
case, the district judge held that, under the particular
circumstances of the case, the prisoner, having seasonably made
demand, was entitled to confer with and have the aid of counsel.
Pointing to the fact that the right to counsel as secured by the
Sixth Amendment relates only to criminal prosecutions, the judge
said,

															". . . but it is equally true that that provision was inserted
in the Constitution because the assistance of counsel was
recognized as essential to any fair trial of a case against a
prisoner."

															In Ex parte Riggins, 134 Fed. 404, 418, a case
involving the due process clause of the Fourteenth Amendment, the
court said, by way of illustration, that, if the state should
deprive a person of the benefit of counsel, it would not be due
process of law. Judge Cooley refers to the right of a person
accused of crime to have counsel as perhaps his most important
privilege, and, after discussing the development of the English law
upon that subject, says: "With us, it is a universal principle of
constitutional law that the prisoner shall be allowed a defense by
counsel." 1 Cooley's Const.Lim., 8th ed., 700. The same author, as
appears from a chapter which he added to his edition of Story on
the Constitution, regarded the right of the accused to the
presence, advice and assistance of counsel a necessarily included
in due process of law. 2 Story on the Constitution, 4th ed., §
1949, p. 668. The state decisions which refer to the matter
invariably recognize the right to the aid of counsel as fundamental
in character. E.g., People v. Napthaly, 105 Cal. 641, 644,
39 Pac. 29; Cutts v. State, 54 la. 21, 23, 45 So. 491; Martin v. State, 51 Ga. 567, 568; Sheppard v.
State, 165 Ga. 460, 464, 141 S.E. 196; State v.
Moore, 61 Kan. 732, 734, 60 Pac. 748; Page 287 U. S. 71 State v. Ferris, 16 La.Ann. 424; State v.
Simson, 38 La.Ann. 23, 24; State v. Briggs, 58 W.Va.
291, 292, 52 S.E. 218.

															In the light of the facts outlined in the forepart of this
opinion -- the ignorance and illiteracy of the defendants, their
youth, the circumstances of public hostility, the imprisonment and
the close surveillance of the defendants by the military forces,
the fact that their friends and families were all in other states
and communication with them necessarily difficult, and, above all,
that they stood in deadly peril of their lives -- we think the
failure of the trial court to give them reasonable time and
opportunity to secure counsel was a clear denial of due
process.

															But passing that, and assuming their inability, even if
opportunity had been given, to employ counsel, as the trial court
evidently did assume, we are of opinion that, under the
circumstances just stated, the necessity of counsel was so vital
and imperative that the failure of the trial court to make an
effective appointment of counsel was likewise a denial of due
process within the meaning of the Fourteenth Amendment. Whether
this would be so in other criminal prosecutions, or under other
circumstances, we need not determine. All that it is necessary now
to decide, as we do decide, is that, in a capital case, where the
defendant is unable to employ counsel and is incapable adequately
of making his own defense because of ignorance, feeble mindedness,
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, and that duty is not discharged by
an assignment at such a time or under such circumstances as to
preclude the giving of effective aid in the preparation and trial
of the case. To hold otherwise would be to ignore the fundamental
postulate, already adverted to,

															"that there are certain immutable principles of justice which
inhere in the very idea of free government which Page 287 U. S. 72 no member of the Union may disregard." Holden v. Hardy, supra. In a case such as this,
whatever may be the rule in other cases, the right to have counsel
appointed, when necessary, is a logical corollary from the
constitutional right to be heard by counsel. Compare Carpenter
& Sprague v. Dane County, 9 Wis. 274; Dane County v.
Smith, 13 Wis. 585, 586. Hendryx v. State, 130 Ind.
265, 268-269, 29 N.E. 1131; Cutts v. State, 54 Fla. 21,
23, 45 So. 491; People v. Goldenson, 76 Cal. 328, 344, 19
Pac. 161; Delk v. State, 99 Ga. 667, 669-670, 26 S.E.
752.

															In Hendryx v. State, supra, there was no statute
authorizing the assignment of an attorney to defend an indigent
person accused of crime, but the court held that such an assignment
was necessary to accomplish the ends of public justice, and that
the court possessed the inherent power to make it. "Where a
prisoner," the court said (p. 269),

															"without legal knowledge, is confined in jail, absent from his
friends, without the aid of legal advice or the means of
investigating the charge against him, it is impossible to conceive
of a fair trial where he is compelled to conduct his cause in
court, without the aid of counsel. . . . Such a trial is not far
removed from an ex parte proceeding."

															Let us suppose the extreme case of a prisoner charged with a
capital offense who is deaf and dumb, illiterate and feeble minded,
unable to employ counsel, with the whole power of the state arrayed
against him, prosecuted by counsel for the state without assignment
of counsel for his defense, tried, convicted and sentenced to
death. Such a result, which, if carried into execution, would be
little short of judicial murder, it cannot be doubted would be a
gross violation of the guarantee of due process of law, and we
venture to think that no appellate court, state or federal, would
hesitate so to decide. See Stephenson v. State, 4 Ohio
App. 128; Williams v. State, 163 Ark. 623, Page 287 U. S.
73 628, 260 S.W. 721; Grogan v. Commonwealth, 222 Ky.
484, 485, 1 S.W.2d 779; Mullen v. State, 28 Okla.Cr. 218, 230,
230 Pac. 285; Williams v. Commonwealth, (Ky.), 110 S.W.
339, 340. The duty of the trial court to appoint counsel under such
circumstances is clear, as it is clear under circumstances such as
are disclosed by the record here, and its power to do so, even in
the absence of a statute, cannot be questioned. Attorneys are
officers of the court, and are bound to render service when
required by such an appointment. See Cooley, Const.Lim., supra, 700 and note.

															The United States, by statute, and every state in the Union, by
express provision of law or by the determination of its courts,
make it the duty of the trial judge, where the accused is unable to
employ counsel, to appoint counsel for him. In most states, the
rule applies broadly to all criminal prosecutions; in others, it is
limited to the more serious crimes; and in a very limited number,
to capital cases. A rule adopted with such unanimous accord
reflects, if it does not establish, the inherent right to have
counsel appointed, at least in cases like the present, and lends
convincing support to the conclusion we have reached as to the
fundamental nature of that right.

															The judgments must be reversed, and the causes remanded for
further proceedings not inconsistent with this opinion. Judgments reversed. * This ancient work, consisting of six books, has long been out
of print. A copy of it is preserved in the locked files of the
Library of Congress. The following extract from the pages cited is
both interest ing and instructive:

															"The attorney for the state then proceeds to lay before the jury
all the evidence against the prisoner, without any remarks or
arguments. The prisoner by himself, or counsel, is then allowed to
produce witnesses to counteract and obviate the testimony against
him, and to exculpate himself with the same freedom as in civil
cases. We have never admitted that cruel and illiberal principle of
the common law of England that, when a man is on trial for his
life, he shall be refused counsel, and denied those means of
defence, which are allowed when the most trifling pittance of
property is in question. The flimsy pretence that the court are to
be counsel for the prisoner will only heighten our indignation at
the practice, for it is apparent to the least consideration that a
court can never furnish a person accused of a crime with the advice
and assistance necessary to make his defence. This doctrine might
with propriety have been advanced at the time when, by the common
law of England, no witnesses could be adduced on the part of the
prisoner to manifest his innocence, for he could then make no
preparation for his defense. One cannot read without horror and
astonishment the abominable maxims of law which deprived persons
accused and on trial for crimes of the assistance of counsel,
except as to points of law, and the advantage of witnesses to
exculpate themselves from the charge. It seems by the ancient
practice that, whenever a person was accused of a crime, every
expedient was adopted to convict him and every privilege denied him
to prove his innocence. In England, however, as the law now stands,
prisoners are allowed the full advantage of witnesses, but
excepting in a few cases, the common law is enforced in denying
them counsel except as to points of law"

															"Our ancestors, when they first enacted their laws respecting
crimes, influenced by the illiberal principles which they had
imbibed in their native country, denied counsel to prisoners to
plead for them to anything but points of law. It is manifest that
there is as much necessity for counsel to investigate matters of
fact as points of law if truth is to be discovered."

															"The legislature has become so thoroughly convinced of the
impropriety and injustice of shackling and restricting a prisoner
with respect to his defence that they have abolished all those
odious laws, and every person, when he is accused of a crime, is
entitled to every possible privilege in making his defence and
manifesting his innocence by the instrumentality of counsel and the
testimony of witnesses."

															The early statutes of Connecticut, upon examination, do not seem
to be as clear as this last paragraph would indicate; but Mr.
Swift, writing in 1796, was in a better position to know how the
statutes had been interpreted and applied in actual practice than
the reader of today, and we see no reason to reject his
statement.

															MR. JUSTICE BUTLER, dissenting.

															The Court, putting aside -- they are utterly without merit --
all other claims that the constitutional rights of petitioners were
infringed, grounds its opinion and judgment upon a single assertion
of fact. It is that petitioners "were denied the right of counsel,
with the accustomed incidents of consultation and opportunity of
preparation for trial." If that is true, they were denied due
process Page 287 U. S. 74 of law and are entitled to have the judgments against them
reversed.

															But no such denial is shown by the record.

															Nine defendants, including Patterson, were accused in one
indictment, and he was also separately indicted. Instead of trying
them en masse, the State gave four trials, and so lessened
the danger of mistake and injustice that inevitably attends an
attempt in a single trial to ascertain the guilt or innocence of
many accused. Weems and Norris were tried first. Patterson was
tried next on the separate indictment. Then five were tried. These
eight were found guilty. The other defendant, Roy Wright, was tried
last, and not convicted. The convicted defendants took the three
cases to the state supreme court, where the judgment as to Williams
was reversed and those against the seven petitioners were
affirmed.

															There were three painstaking opinions, a different justice
writing for the court in each case. 224 Ala. 524, 531, 540, 141 So.
215, 195, 201. Many of the numerous questions decided were raised
at the trial, and reflect upon defendants' counsel much credit for
zeal and diligence on behalf of their clients. Seven justices heard
the cases. The chief justice, alone dissenting, did not find any
contention for the accused sufficient, in itself, to warrant a
reversal, but alluded to a number of considerations which he deemed
sufficient, when taken together, to warrant the conclusion that the
defendants did not have a fair trial. The court said (p. 553):

															"We think it a bit inaccurate to say Mr. Roddy appeared only as amicus curiae. [This refers to a remark in the dissenting
opinion.] He expressly announced he was there from the beginning at
the instance of friends of the accused; but not being paid counsel
asked to appear not as employed counsel, but to aid local counsel
appointed by the court, and was permitted so to appear. The
defendants were represented as shown by the record and pursuant to
appointment of the Page 287 U. S. 75 court by Hon. Milo Moody, an able member of the local bar of
long and successful experience in the trial of criminal, as well as
civil, cases. We do not regard the representation of the accused by
counsel as pro forma. A very rigorous and rigid
cross-examination was made of the state's witnesses, the alleged
victims of rape, especially in the cases first tried. A reading of
the records discloses why experienced counsel would not travel over
all the same ground in each case."

															The informality disclosed by the colloquy between court and
counsel, which is quoted in the opinion of this Court and so
heavily leaned on, is not entitled to any weight. It must be
inferred from the record that Mr. Roddy at all times was in touch
with the defendants and the people who procured him to act for
them. Mr. Moody and others of the local bar also acted for
defendants at the time of the first arraignment, and, as appears
from the part of the record that is quoted in the opinion,
thereafter proceeded in the discharge of their duty, including
conferences with the defendants. There is not the slightest ground
to suppose that Roddy or Moody were by fear or in any manner
restrained from full performance of their duties. Indeed, it
clearly appears that the State, by proper and adequate show of its
purpose and power to preserve order, furnished adequate protection
to them and the defendants.

															When the first case was called for trial, defendants' attorneys
had already prepared, and then submitted, a motion for change of
venue, together with supporting papers. They were ready to, and did
at once, introduce testimony of witnesses to sustain that demand.
They had procured, and were ready to offer, evidence to show that
the defendants Roy Wright and Eugene Williams were under age. The
record shows that the State's evidence was ample to warrant a
conviction. And three defendants each, while asserting his own
innocence, testified that he Page 287 U. S. 76 saw others accused commit the crime charged. When regard is had
to these and other disclosures that may have been, and probably
were, made by petitioners to Roddy and Moody before the trial, it
would be difficult to think of anything that counsel erroneously
did or omitted for their defense.

															If there had been any lack of opportunity for preparation, trial
counsel would have applied to the court for postponement. No such
application was made. There was no suggestion, at the trial or in
the motion for a new trial which they made, that Mr. Roddy or Mr.
Moody was denied such opportunity, or that they were not, in fact,
fully prepared. The amended motion for new trial, by counsel who
succeeded them, contains the first suggestion that defendants were
denied counsel or opportunity to prepare for trial. But neither Mr.
Roddy nor Mr. Moody has given any support to that claim. Their
silence requires a finding that the claim is groundless, for if it
had any merit, they would be bound to support it. And no one has
come to suggest any lack of zeal or good faith on their part.

															If correct, the ruling that the failure of the trial court to
give petitioners time and opportunity to secure counsel was denial
of due process is enough, and with this, the opinion should end.
But the Court goes on to declare that

															"the failure of the trial court to make an effective appointment
of counsel was likewise a denial of due process within the meaning
of the Fourteenth Amendment."

															This is an extension of federal authority into a field hitherto
occupied exclusively by the several States. Nothing before the
Court calls for a consideration of the point. It was not suggested
below, and petitioners do not ask for its decision here. The Court,
without being called upon to consider it, adjudges without a
hearing an important constitutional question concerning criminal
procedure in state courts. Page 287 U. S. 77 It is a wise rule, firmly established by a long course of
decisions here, that constitutional questions -- even when properly
raised and argued -- are to be decided only when necessary for a
determination of the rights of the parties in controversy before
it. Thus, in the Charles River Bridge
Case , 11 Pet. 420, the Court said (p. 36 U. S.
553 ):

															"Many other questions of the deepest importance have been raised
and elaborately discussed in the argument. It is not necessary, for
the decision of this case, to express our opinion upon them, and
the Court deem it proper to avoid volunteering an opinion on any
question involving the construction of the constitution where the
case itself does not bring the question directly before them, and
make it their duty to decide upon it." And see Davidson v. New Orleans, 96 U. S.
97 , 96 U. S. 103 , et seq. Haguenstein v. Lynham, 100 U.
S. 483 , 100 U. S. 490 . Blair v. United States, 250 U. S. 273 , 250 U. S. 279 . Adkins v. Children's Hospital, 261 U.
S. 525 , 261 U. S.
544 .

															The record wholly fails to reveal that petitioners have been
deprived of any right guaranteed by the Federal Constitution, and I
am of opinion that the judgment should be affirmed.

															MR. JUSTICE McREYNOLDS concurs in this opinion.