U.S. Supreme Court Balzac v. Porto Rico, 258
U.S. 298 (1922) Balzac v. Porto Rico Nos. 178, 179 Argued March 20, 1922 Decided April 10,
1922 258
U.S. 298 ERROR TO THE SUPREME COURT OF PORTO
RICO Syllabus 1. The Act of January 28, 1915, c. 22, 38 Stat. 803, amending §
246 of the Judicial Code, and providing that writs of error from
this Court may be prosecuted to the supreme courts of Porto Rico
and Hawaii in the same classes of cases as to the courts of last
resort of the states under Jud.Code, § 237, meant to assimilate the
jurisdiction over those territorial courts to that over the state
courts and is to be construed as embracing subsequent changes in §
237 not obviously inapplicable, such as the amendments made by the
Act of September 6, 1916, c. 448, 39 Stat. 726. P. 258 U. S.
300 .

															2. In prosecutions for criminal libel in a district court of
Porto Rico, defendant demanded a jury under the Sixth Amendment,
which was denied him upon a construction of local statutes,
applicable to this and other misdemeanors. Held that the
demand drew in question the validity of the statutes, within the
meaning of Jud.Code § 237, as amended in 1916, and that judgments
of the Supreme Court of Porto Rico affirming the convictions were
reviewable here by writ of error. P. 258 U. S.
302 .

															3. To present the constitutionality of a statute, it is not
essential that an assignment of error should mention the statute in
question, if the record definitely shows that its constitutionality
was questioned and the assignment is clearly directed to that
controversy. P. 258 U. S.
303 .

															4. The provisions of the Constitution guaranteeing jury trial in
all criminal prosecutions do not apply to a territory belonging to
the Page 258 U. S. 299 United States which has not been incorporated into the Union,
and Porto Rico was not so incorporated by the Act of April 12,
1900, c.191, 31 Stat. 77, which gave it a temporary government. P. 258 U. S. 304 . Dorr v. United States, 195 U. S. 138 .

															5. The Organic Act for Porto Rico of March 2, 1917, c. 145, 39
Stat. 951, known as the Jones Act, did not have the effect of
incorporating Porto Rico into the United States. P. 258 U. S.
305 .

															6. Since the Spanish War, an intention of Congress to
incorporate new territory into the Union is not to be admitted
without express declaration or an implication so strong as to
exclude any other view. P. 258 U. S. 306 .

															7. The provisions of § 5 of the Organic Act, supra, for
extending federal citizenship to citizens and certain residents of
Porto Rico, did not extend the jury system there. P. 258 U. S.
307 .

															8. Neither can incorporation into the United States be implied
from the organization of the United States District Court in Porto
Rico, allowance of review of cases from its Supreme Court involving
the Constitution, admission of Porto Ricans to the Military and
Naval Academies, sale of United States stamps in the Island, or
extension to it of federal revenue, navigation, banking,
bankruptcy, employers' liability, safety appliance, extradition and
census laws. P. 258 U. S.
311 .

															9. Published reflections on the Governor of Porto Rico held libelous and not legitimate comment protected by the
guaranty of free speech and free press in the First Amendment of
the Constitution. P. 258 U. S. 314 .

															28 P.R. 139, 141 affirmed.

															Review of two judgments of the Supreme Court of Porto Rico which
affirmed judgments of the District Court for Arecibo imposing
sentences to imprisonment based on convictions of criminal
libel. Page 258 U. S. 300 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

															These are two prosecutions for criminal libel, brought against
the same defendant, Jesus M. Balzac, on informations filed in the
District Court for Arecibo, Porto Rico, by the district attorney
for that district. Balzac was the editor of a daily paper published
in Arecibo, known as "El Baluarte," and the articles upon which the
charges of libel were based were published on April 16 and April
23, 1918, respectively. In each case, the defendant demanded a
jury. The Code of Criminal Procedure of Porto Rico grants a jury
trial in cases of felony, but not in misdemeanors. The defendant
nevertheless contended that he was entitled to a jury in such a
case, under the Sixth Amendment to the Constitution, and that the
language of the alleged libels was only fair comment, and their
publication was protected by the First Amendment. His contentions
were overruled; he was tried by the court, and was convicted in
both cases and sentenced to five months' imprisonment in the
district jail in the first, and to four months in the second, and
to the payment of the costs in each. The defendant appealed to the
Supreme Court of Porto Rico. That court affirmed both judgments. People v. Balzac, 28 P.R. Co. 139; second case, 28 P.R.
Co. 141.

															The first question in these cases is one of jurisdiction of this
Court. By § 244 of the Judicial Code, approved March 3, 1911, it
was provided that writs of error and appeals from the final
judgments and decrees of the Supreme Court of Porto Rico might be
prosecuted to this Court in any case in which was drawn in question
the validity of a treaty or statute of, or authority exercised
under, the United States or wherein the Constitution of the United
States, or a treaty thereof, or an act of Congress was brought in
question and the right claimed thereunder was denied, and this
without regard to the Page 258 U. S. 301 amount involved. By the Act of January 28, 1915 (38 Stat. 803),
§ 244 of the Judicial Code was repealed, but § 246 was amended and
made to apply to the appellate jurisdiction of this Court in
respect to the decisions of the Supreme Court, not only of Hawaii,
as before, but also Porto Rico, and it was provided that writs of
error to those courts from this Court could be prosecuted in the
same class of cases as those in which this Court was authorized
under § 237 of the Judicial Code to review decisions of state
courts of last resort. Section 237 at that time allowed a writ of
error to final decisions in state courts of last resort where was
drawn in question the validity of a treaty, or a statute of, or an
authority exercised under, the United States and the decision was
against its validity, or where was drawn in question the validity
of a statute of, or an authority exercised under any state, on the
ground of its being repugnant to the Constitution, treaties, or
laws of the United States and the decision was in favor of its
validity, or where any title, right, privilege, or immunity was
claimed under the Constitution, or any treaty or statute of, or
commission held, or authority exercised under, the United States,
and the decision was against the title, right, privilege or
immunity especially set up or claimed by either party under such
Constitution, treaty, statute, commission or authority. By Act of
January 28, 1915, 38 Stat. 803, 804, amending § 246, this Court was
given power by certiorari to bring up for review all final
judgments or decrees in civil or criminal cases in the Supreme
Courts of Porto Rico and Hawaii, other than those reviewable here
by writ of error because in the class similar to that described in
§ 237 of the Judicial Code. By Act of September 6, 1916, 39 Stat.
726, the jurisdiction of this Court to review by writ of error,
under § 237, final judgments and decrees of state courts of last
resort was cut down by omitting cases (other than those involving
the validity of Page 258 U. S. 302 a treaty, statute or authority exercised under the United States
or any state) wherein a title, right, privilege, or immunity, was
claimed under the Constitution, or any treaty or statute of, or
commission held, or authority exercised under, the United States,
and the decision was against such title, right, privilege or
immunity, and such cases, it was provided, could only be examined
on review in this Court by certiorari.

															The question now presented is whether the amendment to § 237 of
the Judicial Code by the Act of 1916 applies to, and affects, the
appellate jurisdiction of this Court in reviewing decisions of the
Supreme Court of Porto Rico. We think it does. We think that the
manifest purpose of the Act of 1915, amending § 246 of the Code, in
its reference to § 237 of the Judicial Code was to assimilate the
appellate jurisdiction of this Court over the Supreme Courts of
Porto Rico and Hawaii to that over state courts of last resort, and
that the reference in amended § 246, to § 237 may be fairly
construed to embrace subsequent changes in § 237 that are not
obviously inapplicable.

															This brings us to the question whether there was drawn in
question in these cases the validity of a statute of Porto Rico
under the Constitution of the United States. The Penal Code of
Porto Rico divides crimes into felonies and misdemeanors
(Rev.Stats. and Codes of Porto Rico 1911, Penal Code, § 13). A
felony is described as a crime punishable by death or imprisonment
in the penitentiary. Every other crime is declared to be a
misdemeanor. Penal Code, § 14. Section 178 of the Porto Rican Code
of Criminal Procedure provided that issues of fact in cases of
felony should be tried by a jury when the defendant so elected, but
gave no such right in the case of misdemeanors. This was construed
by the Supreme Court to deny such right. People v. Bird, 5
P.R. Co. 387.

															By § 244 (5676) of the Penal Code (as amended by Act of March 9,
1911, p. 71), the publication of a libel is made Page 258 U. S. 303 punishable by a fine not exceeding $5,000, or imprisonment in
jail for a term not exceeding two years, or both such fine and
imprisonment, and also the costs of the action, in the discretion
of the court. It is therefore plain that libel under the Porto
Rican law is a misdemeanor, and a jury trial was not required
therein. By the Act of July 22, 1919 (Laws of Porto Rico 1919, No.
84, p. 684), a jury trial is now given in misdemeanors, but that
did not come into force until after these libels were published and
these trials had.

															When the Penal Code and the Code of Criminal Procedure were
first passed in 1901, they both contained the provision that, in
all cases of libel, the jury should determine the law and the fact.
It was held, however, by the Supreme Court of Porto Rico in People v. Bird, 5 P.R. Co. 387, 405, that this did not
give a jury trial, but only made provision that, if and when a
right of jury trial was given in such cases, the jury should have
the power to determine the law and the fact. Thereafter, the Act of
March 10, 1904 (Laws of Porto Rico 1904, p. 130), expressly
repealed all reference to trials for libel in the Jury Act.

															The effect of the Penal Code of Procedure, as construed by the
Supreme Court of Porto Rico, and of the Act of March 10, 1904,
repealing the jury act as to libel cases, was a statutory denial of
the right of jury trial in such cases. A demand for a jury trial in
this case therefore drew in question the validity of the statutes
upon which the court relied in denying the demand. This necessarily
leads to the conclusion that these cases are in the same class as
those which come to this Court by writ of error under § 237, as
amended by the Act of 1916, and that jurisdiction by writ of error
exists.

															Was the issue properly saved in the record by the defendant? We
think it was. The demand for a jury trial, the statute to the
contrary notwithstanding, was made at the trial. It was renewed in
the assignments of error in Page 258 U. S. 304 the Porto Rican Supreme Court and here. Those assignments did
not mention the statutes whose validity was involved, but merely
averred that the defendant had been denied his right as an American
citizen under the Sixth Amendment to the Constitution. While this
is informal, we think that it is sufficient when the record
discloses the real nature of the controversy and the specification
of the assignment leaves no doubt that it is directed to that
controversy.

															We have now to inquire whether that part of the Sixth Amendment
to the Constitution which requires 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, applies to Porto Rico.
Another provision on the subject is in Article III of the
Constitution, providing that the trial of all crimes, except in
cases of impeachment, shall be by jury, and such trial shall be
held in the state where the said crimes shall have been committed,
but when not committed within any state, the trial shall be at such
place or places as the Congress may by law have directed. The
Seventh Amendment of the Constitution provides that, in suits at
common law, when the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved. It is well
settled that these provisions for jury trial in criminal and civil
cases apply to the Territories of the United States. Webster v.
Reid , 11 How. 437, 52 U. S. 460 ; Reynolds v. United States, 98 U. S.
145 , 98 U. S. 167 ; Callan v. Wilson, 127 U. S. 540 , 127 U. S. 556 ; American Publishing Co. v. Fisher, 166 U.
S. 464 ; Thompson v. Utah, 170 U.
S. 343 , 170 U. S. 347 ; Capital Traction Co. v. Hof, 174 U. S.
1 ; Black v. Jackson, 177 U.
S. 349 ; Rasmussen v. United States, 197 U. S. 516 , 197 U. S. 528 ; Gurvich v. United States, 198 U.S. 581. But it is just as
clearly settled that they do not apply to territory belonging to
the Page 258 U. S. 305 United States which has not been incorporated into the Union. Hawaii v. Mankichi, 190 U. S. 197 ; Dorr v. United States, 195 U. S. 138 , 195 U. S. 145 .
It was further settled in Downes v. Bidwell, 182 U.
S. 244 , and confirmed by Dorr v. United States, 195 U. S. 138 ,
that neither the Philippines nor Porto Rico was territory which had
been incorporated in the Union or become a part of the United
States, as distinguished from merely belonging to it, and that the
acts giving temporary governments to the Philippines, 32 Stat. 691,
and to Porto Rico, 31 Stat. 77, had no such effect. The Insular
Cases revealed much diversity of opinion in this Court as to
the constitutional status of the territory acquired by the Treaty
of Paris ending the Spanish War, but the Dorr case shows
that the opinion of Mr. Justice White of the majority, in Downes v. Bidwell, has become the settled law of the
Court. The conclusion of this Court in the Dorr case, p. 195 U. S. 149 ,
was as follows:

															"We conclude that the power to govern territory, implied in the
right to acquire it, and given to Congress in the Constitution in
Article IV, § 3, to whatever other limitations it may be subject,
the extent of which must be decided as questions arise, does not
require that body to enact for ceded territory, not made part of
the United States by congressional action, a system of laws which
shall include the right of trial by jury, and that the Constitution
does not, without legislation and of its own force, carry such
right to territory so situated."

															The question before us therefore is: has Congress, since the
Foraker Act of April 12, 1900 (31 Stat. 77), enacted legislation
incorporating Porto Rico into the Union? Counsel for the plaintiff
in error give, in their brief, an extended list of acts, to which
we shall refer later, which they urge as indicating a purpose to
make the island a part of the United States, but they chiefly rely
on the Organic Act of Porto Rico of March 2, 1917, c. 145, 39 Stat.
951, known as the Jones Act. Page 258 U. S. 306 The act is entitled "An act to provide a civil government for
Porto Rico and for other purposes." It does not indicate by its
title that it has a purpose to incorporate the island into the
Union. It does not contain any clause which declares such purpose
or effect. While this is not conclusive, it strongly tends to show
that Congress did not have such an intention. Few questions have
been the subject of such discussion and dispute in our country as
the status of our territory acquired from Spain in 1899. The
division between the political parties in respect to it, the
diversity of the views of the members of this Court in regard to
its constitutional aspects, and the constant recurrence of the
subject in the Houses of Congress fixed the attention of all on the
future relation of this acquired territory to the United States.
Had Congress intended to take the important step of changing the
treaty status of Porto Rico by incorporating it into the Union, it
is reasonable to suppose that it would have done so by the plain
declaration, and would not have left it to mere inference. Before
the question became acute at the close of the Spanish War, the
distinction between acquisition and incorporation was not regarded
as important, or at least it was not fully understood and had not
aroused great controversy. Before that, the purpose of Congress
might well be a matter of mere inference from various legislative
acts; but in these latter days, incorporation is not to be assumed
without express declaration, or an implication so strong as to
exclude any other view.

															Again, the second section of the act is called a "Bill of
Rights," and included therein is substantially every one of the
guaranties of the federal Constitution except those relating to
indictment by a grand jury in the case of infamous crimes and the
right of trial by jury in civil and criminal cases. If it was
intended to incorporate Porto Rico into the Union by this act,
which would ex proprio vigore make applicable the whole
Bill of Rights Page 258 U. S. 307 of the Constitution to the island, why was it thought necessary
to create for it a Bill of Rights and carefully exclude trial by
jury? In the very forefront of the act is this substitute for
incorporation and application of the Bill of Rights of the
Constitution. This seems to us a conclusive argument against the
contention of counsel for the plaintiff in error.

															The section of the Jones Act which counsel press on us is § 5.
This in effect declares that all persons who under the Foraker Act
were made citizens of Porto Rico and certain other residents shall
become citizens of the United States, unless they prefer not to
become such, in which case they are to declare such preference
within six months, and thereafter they lose certain political
rights under the new government. In the same section, the United
States district court is given power separately to naturalize
individuals of some other classes of residents. We set out the
section in full in the margin. * Unaffected by
the considerations Page 258 U. S. 308 already suggested, perhaps the declaration of § 5 would furnish
ground for an inference such as counsel for plaintiff in error
contend, but, under the circumstances, we find it entirely
consistent with nonincorporation. When Porto Ricans passed from
under the government of Spain, they lost the protection of that
government as subjects of the King of Spain, a title by which they
had been known for centuries. They had a right to expect, in
passing under the dominion of the United States, a status entitling
them to the protection of their new sovereign. In theory and in
law, they had it as citizens of Porto Rico, but it was an anomalous
status, or seemed to be so in view of the fact that those who owed
and rendered allegiance to the other great world powers were given
the same designation and status as those living in their respective
home countries so far as protection against foreign injustice went.
It became a yearning of the Porto Ricans to be American citizens,
therefore, and this act gave them the boon. What additional rights
did it give them? It enabled them to move into the continental
United States and becoming residents of any state there, to enjoy
every right of any other citizen of the United States, civil,
social and political. A citizen of the Philippines must be
naturalized before he can settle and vote in this country. Act of
June 29, 1906, § 30, 34 Stat. 606. Not so the Porto Rican under the
Organic Act of 1917. Page 258 U. S. 309 In Porto Rico, however, the Porto Rican cannot insist upon the
right of trial by jury except as his own representatives in his
legislature shall confer it on him. The citizen of the United
States living in Porto Rico cannot there enjoy a right of trial by
jury under the federal Constitution, any more than the Porto Rican.
It is locality that is determinative of the application of the
Constitution, in such matters as judicial procedure, and not the
status of the people who live in it.

															It is true that, in the absence of other and countervailing
evidence, a law of Congress or a provision in a treaty acquiring
territory, declaring an intention to confer political and civil
rights on the inhabitants of the new lands as American citizens,
may be properly interpreted to mean an incorporation of it into the
Union, as in the case of Louisiana and Alaska. This was one of the
chief grounds upon which this Court placed its conclusion that
Alaska had been incorporated in the Union in Rasmussen v.
United States, 197 U. S. 516 . But
Alaska was a very different case from that of Porto Rico. It was an
enormous territory, very sparsely settled, and offering opportunity
for immigration and settlement by American citizens. It was on the
American continent, and within easy reach of the then United
States. It involved none of the difficulties which incorporation of
the Philippines and Porto Rico presents, and one of them is in the
very matter of trial by jury. This Court refers to the difficulties
in Dorr v. United States, 195 U.
S. 138 , 195 U. S.
148 :

															"If the right to trial by jury were a fundamental right which
goes wherever the jurisdiction of the United States extends, or if
Congress, in framing laws for outlying territory, . . . was obliged
to establish that system by affirmative legislation, it would
follow that, no matter what the needs or capacities of the people,
trial by jury, and in no other way, must be forthwith established,
although the result may be to work injustice Page 258 U. S. 310 and provoke disturbance, rather than to aid the orderly
administration of justice. . . . Again, if the United States shall
acquire by treaty the cession of territory having an established
system of jurisprudence, where jury trials are unknown, but a
method of fair and orderly trial prevails under an acceptable and
long established code, the preference of the people must be
disregarded, their established customs ignored, and they themselves
coerced to accept, in advance of incorporation into the United
States, a system of trial unknown to them and unsuited to their
needs. We do not think it was intended, in giving power to Congress
to make regulations for the territories, to hamper its exercise
with this condition."

															The jury system needs citizens trained to the exercise of the
responsibilities of jurors. In common law countries, centuries of
tradition have prepared a conception of the impartial attitude
jurors must assume. The jury system postulates a conscious duty of
participation in the machinery of justice which it is hard for
people not brought up in fundamentally popular government at once
to acquire. One of its greatest benefits is in the security it
gives the people that they, as jurors, actual or possible, being
part of the judicial system of the country, can prevent its
arbitrary use or abuse. Congress has thought that a people like the
Filipinos, or the Porto Ricans, trained to a complete judicial
system which knows no juries, living in compact and ancient
communities, with definitely formed customs and political
conceptions, should be permitted themselves to determine how far
they wish to adopt this institution of Anglo-Saxon origin, and
when. Hence the care with which, from the time when Mr. McKinley
wrote his historic letter to Mr. Root in April of 1900 (Public Laws
Philippine Commission, 6-9-Act of July 2, 1902, 691, 692)
concerning the character of government to be set up for the
Philippines by the Phillippine Commission, until the Act Page 258 U. S. 311 of 1917, giving a new Organic Act to Porto Rico, the United
States has been liberal in granting to the islands acquired by the
Treaty of Paris most of the American constitutional guaranties, but
has been sedulous to avoid forcing a jury system on a Spanish and
civil law country until it desired it. We cannot find any intention
to depart from this policy in making Porto Ricans American
citizens, explained as this is by the desire to put them as
individuals on an exact equality with citizens from the American
homeland, to secure them more certain protection against the world,
and to give them an opportunity, should they desire, to move into
the United States proper, and there without naturalization to enjoy
all political and other rights.

															We need not dwell on another consideration which requires us not
lightly to infer, from acts thus easily explained on other grounds,
an intention to incorporate in the Union these distant ocean
communities of a different origin and language from those of our
continental people. Incorporation has always been a step, and an
important one, leading to statehood. Without in the slightest
degree intimating an opinion as to the wisdom of such a policy, for
that is not our province, it is reasonable to assume that, when
such a step is taken, it will be begun and taken by Congress
deliberately, and with a clear declaration of purpose, and not left
a matter of mere inference or construction.

															Counsel for the plaintiff in error also rely on the organization
of a United States district court in Porto Rico, on the allowance
of review of the Porto Rican Supreme Court in cases when the
Constitution of the United States is involved, on the statutory
permission that Porto Rican youth can attend West Point and
Annapolis Academies, on the authorized sale of United States stamps
in the island, on the extension of revenue, navigation,
immigration, Page 258 U. S. 312 national banking, bankruptcy, federal employers' liability,
safety appliance, extradition, and census laws in one way or
another to Porto Rico. With the background of the considerations
already stated, none of these, nor all of them put together,
furnish ground for the conclusion pressed on us.

															The United States district court is not a true United States
court established under Article III of the Constitution to
administer the judicial power of the United States therein
conveyed. It is created by virtue of the sovereign congressional
faculty, granted under Article IV, § 3, of that instrument, of
making all needful rules and regulations respecting the territory
belonging to the United States. The resemblance of its jurisdiction
to that of true United States courts, in offering an opportunity to
nonresidents of resorting to a tribunal not subject to local
influence, does not change its character as a mere territorial
court. Nor does the legislative recognition that federal
constitutional questions may arise in litigation in Porto Rico have
any weight in this discussion. The Constitution of the United
States is in force in Porto Rico, as it is wherever and whenever
the sovereign power of that government is exerted. This has not
only been admitted, but emphasized, by this Court in all its
authoritative expressions upon the issues arising in the Insular cases, especially in the Downes v.
Bidwell and the Dorr cases. The Constitution,
however, contains grants of power, and limitations which in the
nature of things are not always and everywhere applicable and the
real issue in the Insular cases was not whether the
Constitution extended to the Philippines or Porto Rico when we went
there, but which ones of its provisions were applicable by way of
limitation upon the exercise of executive and legislative power in
dealing with new conditions and requirements. The guaranties of
certain fundamental personal rights declared in the Constitution,
as, for instance, Page 258 U. S. 313 that no person could be deprived of life, liberty, or property
without due process of law, had from the beginning full application
in the Philippines and Porto Rico, and, as this guaranty is one of
the must fruitful in causing litigation in our own country,
provision was naturally made for similar controversy in Porto Rico.
Indeed, provision is made for the consideration of constitutional
questions coming on appeal and writs of error from the Supreme
Court of the Philippines, which are certainly not incorporated in
the Union. Judicial Code, § 248.

															On the whole, therefore, we find no features in the Organic Act
of Porto Rico of 1917 from which we can infer the purpose of
Congress to incorporate Porto Rico into the United States with the
consequences which would follow.

															This Court has passed on substantially the same questions
presented here in two cases, Porto Rico v. Tapia, 245 U.S.
639, and People v. Muratti, 245 U.S. 639. In the former,
the question was whether one who was charged with committing a
felonious homicide some 12 days after the passage of the Organic
Act in 1917 could be brought to trial without an indictment of a
grand jury as required by the Fifth Amendment to the Constitution.
The United States District Court of Porto Rico, on a writ of habeas
corpus, held that he could not be held to answer, and discharged
him. In the other case, the felony charged was alleged to have been
committed before the passage of the Organic Act, but prosecution
was begun afterwards. In that, the Supreme Court of Porto Rico held
that an indictment was not rendered necessary by the Organic Act.
This Court reversed the district court in the Tapia case
and affirmed the Supreme Court in the Muratti case,
necessarily holding the Organic Act had not incorporated Porto Rico
into the United States. These cases were disposed of by a per
curiam. Counsel have urged us in the cases Page 258 U. S. 314 at the bar to deal with the questions raised more at length in
exposition of the effect of the Organic Act of 1917 upon the issue,
and we have done so.

															A second assignment of error is based on the claim that the
alleged libels here did not pass the bounds of legitimate comment
on the conduct of the governor of the island, against whom they
were directed, and that its prosecution is a violation of the First
Amendment to the Constitution, securing free speech and a free
press. A reading of the two articles removes the slightest doubt
that they go far beyond the "exuberant expressions of meridional
speech," to use the expression of this Court in a similar case in Gandia v. Pittingill, 222 U. S. 452 , 222 U. S. 458 .
Indeed, they are so excessive and outrageous in their character
that they suggest the query whether their superlative vilification
has not overleaped itself and become unconsciously humorous. But
this is not a defense.

															The judgments of the Supreme Court of Porto Rico are Affirmed. MR. JUSTICE HOLMES concurs in the result.

															*

															"Sec. 5. That all citizens of Porto Rico as defined by section
seven of the act of April twelfth, nineteen hundred, 'temporarily
to provide revenues and a civil government for Porto Rico, and for
other purposes,' and all natives of Porto Rico who were temporarily
absent from that island on April eleventh, eighteen hundred and
ninety-nine, and have since returned and are permanently residing
in that island, and are not citizens of any foreign country, are
hereby declared, and shall be deemed and held to be, citizens of
the United States: Provided, that any person hereinbefore
described may retain his present political status by making a
declaration, under oath, of his decision to do so within six months
of the taking effect of this act before the district court in the
district in which he resides, the declaration to be in form as
follows:"

															"I, _____, _____, being duly sworn, hereby declare my intention
not to become a citizen of the United States as provided in the act
of Congress conferring United States citizenship upon citizens of
Porto Rico and certain natives permanently residing in said
island."

															In the case of any such person who may be absent from the island
during said six months, the term of this proviso may be availed of
by transmitting a declaration, under oath, in the form herein in
provided within six months of the taking effect of the act to the
executive secretary of Porto Rico: And provided further, that any person who is born in Porto Rico of an alien parent and is
permanently residing in that island may, if of full age, within six
months of the taking his majority or within or if a minor, upon
reaching his majority or within one year thereafter, make a sworn
declaration of allegiance to the United States before the United
States district court for Porto Rico setting forth therein all the
facts connected with his or her birth and residence in Porto Rico
and accompanying due proof thereof, and, from and after the making
of such declaration, shall be considered to be a citizen of the
United States.


U.S. Supreme Court Gideon v. Wainwright, 372
U.S. 335 (1963) Gideon v. Wainwright No. 155 Argued January 15,
1963 Decided March 18,
1963 372
U.S. 335 CERTIORARI TO THE SUPREME COURT OF
FLORIDA Syllabus Charged in a Florida State Court with a noncapital felony,
petitioner appeared without funds and without counsel and asked the
Court to appoint counsel for him, but this was denied on the ground
that the state law permitted appointment of counsel for indigent
defendants in capital cases only. Petitioner conducted his own
defense about as well as could be expected of a layman, but he was
convicted and sentenced to imprisonment. Subsequently, he applied
to the State Supreme Court for a writ of habeas corpus, on the
ground that his conviction violated his rights under the Federal
Constitution. The State Supreme Court denied all relief. Held: The right of an indigent defendant in a criminal
trial to have the assistance of counsel is a fundamental right
essential to a fair trial, and petitioner's trial and conviction
without the assistance of counsel violated the Fourteenth
Amendment. Betts v. Brady, 316 U.
S. 455 , overruled. Pp. 372 U. S.
336 -345.

															Reversed and cause remanded. Page 372 U. S. 336 MR. JUSTICE BLACK delivered the opinion of the Court.

															Petitioner was charged in a Florida state court with having
broken and entered a poolroom with intent to commit a misdemeanor.
This offense is a felony under Page 372 U. S. 337 Florida law. Appearing in court without funds and without a
lawyer, petitioner asked the court to appoint counsel for him,
whereupon the following colloquy took place:

															"The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel
to represent you in this case. Under the laws of the State of
Florida, the only time the Court can appoint Counsel to represent a
Defendant is when that person is charged with a capital offense. I
am sorry, but I will have to deny your request to appoint Counsel
to defend you in this case."

															"The DEFENDANT: The United States Supreme Court says I am
entitled to be represented by Counsel."

															Put to trial before a jury, Gideon conducted his defense about
as well as could be expected from a layman. He made an opening
statement to the jury, cross-examined the State's witnesses,
presented witnesses in his own defense, declined to testify
himself, and made a short argument "emphasizing his innocence to
the charge contained in the Information filed in this case." The
jury returned a verdict of guilty, and petitioner was sentenced to
serve five years in the state prison. Later, petitioner filed in
the Florida Supreme Court this habeas corpus petition attacking his
conviction and sentence on the ground that the trial court's
refusal to appoint counsel for him denied him rights "guaranteed by
the Constitution and the Bill of Rights by the United States
Government." [ Footnote 1 ]
Treating the petition for habeas corpus as properly before it, the
State Supreme Court, "upon consideration thereof" but without an
opinion, denied all relief. Since 1942, when Betts v.
Brady, 316 U. S. 455 , was
decided by a divided Page 372 U. S. 338 Court, the problem of a defendant's federal constitutional right
to counsel in a state court has been a continuing source of
controversy and litigation in both state and federal courts.
[ Footnote 2 ] To give this
problem another review here, we granted certiorari. 370 U.S. 908.
Since Gideon was proceeding in forma pauperis, we
appointed counsel to represent him and requested both sides to
discuss in their briefs and oral arguments the following: "Should
this Court's holding in Betts v. Brady, 316 U.
S. 455 , be reconsidered?" I The facts upon which Betts claimed that he had been
unconstitutionally denied the right to have counsel appointed to
assist him are strikingly like the facts upon which Gideon here
bases his federal constitutional claim. Betts was indicted for
robbery in a Maryland state court. On arraignment, he told the
trial judge of his lack of funds to hire a lawyer and asked the
court to appoint one for him. Betts was advised that it was not the
practice in that county to appoint counsel for indigent defendants
except in murder and rape cases. He then pleaded not guilty, had
witnesses summoned, cross-examined the State's witnesses, examined
his own, and chose not to testify himself. He was found guilty by
the judge, sitting without a jury, and sentenced to eight years in
prison. Page 372 U. S. 339 Like Gideon, Betts sought release by habeas corpus, alleging
that he had been denied the right to assistance of counsel in
violation of the Fourteenth Amendment. Betts was denied any relief,
and, on review, this Court affirmed. It was held that a refusal to
appoint counsel for an indigent defendant charged with a felony did
not necessarily violate the Due Process Clause of the Fourteenth
Amendment, which, for reasons given, the Court deemed to be the
only applicable federal constitutional provision. The Court
said:

															"Asserted denial [of due process] is to be tested by an
appraisal of the totality of facts in a given case. That which may,
in one setting, constitute a denial of fundamental fairness,
shocking to the universal sense of justice, may, in other
circumstances, and in the light of other considerations, fall short
of such denial."

															316 U.S. at 316 U. S. 462 .
Treating due process as "a concept less rigid and more fluid than
those envisaged in other specific and particular provisions of the
Bill of Rights," the Court held that refusal to appoint counsel
under the particular facts and circumstances in the Betts case was not so "offensive to the common and fundamental ideas of
fairness" as to amount to a denial of due process. Since the facts
and circumstances of the two cases are so nearly indistinguishable,
we think the Betts v. Brady holding, if left standing,
would require us to reject Gideon's claim that the Constitution
guarantees him the assistance of counsel. Upon full
reconsideration, we conclude that Betts v. Brady should be
overruled. II The Sixth Amendment provides, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." We have construed Page 372 U. S. 340 this to mean that, in federal courts, counsel must be provided
for defendants unable to employ counsel unless the right is
competently and intelligently waived. [ Footnote 3 ] Betts argued that this right is extended to
indigent defendants in state courts by the Fourteenth Amendment. In
response, the Court stated that, while the Sixth Amendment laid
down

															"no rule for the conduct of the States, the question recurs
whether the constraint laid by the Amendment upon the national
courts expresses a rule so fundamental and essential to a fair
trial, and so, to due process of law, that it is made obligatory
upon the States by the Fourteenth Amendment."

															316 U.S. at 316 U. S. 465 .
In order to decide whether the Sixth Amendment's guarantee of
counsel is of this fundamental nature, the Court in Betts set out and considered

															"[r]elevant data on the subject . . . afforded by constitutional
and statutory provisions subsisting in the colonies and the States
prior to the inclusion of the Bill of Rights in the national
Constitution, and in the constitutional, legislative, and judicial
history of the States to the present date."

															316 U.S. at 316 U. S. 465 .
On the basis of this historical data, the Court concluded that
"appointment of counsel is not a fundamental right, essential to a
fair trial." 316 U.S. at 316 U. S. 471 .
It was for this reason the Betts Court refused to accept
the contention that the Sixth Amendment's guarantee of counsel for
indigent federal defendants was extended to or, in the words of
that Court, "made obligatory upon, the States by the Fourteenth
Amendment." Plainly, had the Court concluded that appointment of
counsel for an indigent criminal defendant was "a fundamental
right, essential to a fair trial," it would have held that the
Fourteenth Amendment requires appointment of counsel in a state
court, just as the Sixth Amendment requires in a federal court. Page 372 U. S. 341 We think the Court in Betts had ample precedent for
acknowledging that those guarantees of the Bill of Rights which are
fundamental safeguards of liberty immune from federal abridgment
are equally protected against state invasion by the Due Process
Clause of the Fourteenth Amendment. This same principle was
recognized, explained, and applied in Powell v. Alabama, 287 U. S. 45 (1932), a case upholding the right of counsel, where the Court held
that, despite sweeping language to the contrary in Hurtado v.
California, 110 U. S. 516 (1884), the Fourteenth Amendment "embraced" those " fundamental
principles of liberty and justice which lie at the base of all our
civil and political institutions,'" even though they had been
"specifically dealt with in another part of the federal
Constitution." 287 U.S. at 287 U. S. 67 . In many cases other than Powell and Betts, this Court has looked to the fundamental nature
of original Bill of Rights guarantees to decide whether the
Fourteenth Amendment makes them obligatory on the States.
Explicitly recognized to be of this "fundamental nature," and
therefore made immune from state invasion by the Fourteenth, or
some part of it, are the First Amendment's freedoms of speech,
press, religion, assembly, association, and petition for redress of
grievances. [ Footnote 4 ] For
the same reason, though not always in precisely the same
terminology, the Court has made obligatory on the States the Fifth
Amendment's command that Page 372 U. S. 342 private property shall not be taken for public use without just
compensation, [ Footnote 5 ] the
Fourth Amendment's prohibition of unreasonable searches and
seizures, [ Footnote 6 ] and the
Eighth's ban on cruel and unusual punishment. [ Footnote 7 ] On the other hand, this Court in Palko v. Connecticut, 302 U. S. 319 (1937), refused to hold that the Fourteenth Amendment made the
double jeopardy provision of the Fifth Amendment obligatory on the
States. In so refusing, however, the Court, speaking through Mr.
Justice Cardozo, was careful to emphasize that

															"immunities that are valid as against the federal government by
force of the specific pledges of particular amendments have been
found to be implicit in the concept of ordered liberty, and thus,
through the Fourteenth Amendment, become valid as against the
states,"

															and that guarantees "in their origin . . . effective against the
federal government alone" had, by prior cases,

															"been taken over from the earlier articles of the federal bill
of rights and brought within the Fourteenth Amendment by a process
of absorption."

															302 U.S. at 302 U. S.
324 -326.

															We accept Betts v. Brady's assumption, based as it was
on our prior cases, that a provision of the Bill of Rights which is
"fundamental and essential to a fair trial" is made obligatory upon
the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth
Amendment's guarantee of counsel is not one of these fundamental
rights. Ten years before Betts v. Brady, this Court, after
full consideration of all the historical data examined in Betts, had unequivocally declared that "the right to the
aid of Page 372 U. S. 343 counsel is of this fundamental character." Powell v.
Alabama, 287 U. S. 45 , 287 U. S. 68 (1932). While the Court, at the close of its Powell opinion, did, by its language, as this Court frequently does, limit
its holding to the particular facts and circumstances of that case,
its conclusions about the fundamental nature of the right to
counsel are unmistakable. Several years later, in 1936, the Court
reemphasized what it had said about the fundamental nature of the
right to counsel in this language:

															"We concluded that certain fundamental rights, safeguarded by
the first eight amendments against federal action, were also
safeguarded against state action by the due process of law clause
of the Fourteenth Amendment, and among them the fundamental right
of the accused to the aid of counsel in a criminal
prosecution." Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S.
243 -244 (1936). And again, in 1938, this Court said:

															"[The assistance of counsel] is one of the safeguards of the
Sixth Amendment deemed necessary to insure fundamental human rights
of life and liberty. . . . The Sixth Amendment stands as a constant
admonition that, if the constitutional safeguards it provides be
lost, justice will not 'still be done.'" Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 462 (1938). To the same effect, see Avery v. Alabama, 308 U. S. 444 (1940), and Smith v. O'Grady, 312 U.
S. 329 (1941). In light of these and many other prior
decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that "one
charged with crime, who is unable to obtain counsel, must be
furnished counsel by the State," conceded that "[e]xpressions in
the opinions of this court lend color to the argument. . . ." 316
U.S. at 316 U. S.
462 -463. The fact is that, in deciding as it did -- that
"appointment of counsel is not a fundamental right, Page 372 U. S. 344 essential to a fair trial" -- the Court in Betts v.
Brady made an abrupt break with its own well considered
precedents. In returning to these old precedents, sounder, we
believe, than the new, we but restore constitutional principles
established to achieve a fair system of justice. Not only these
precedents, but also reason and reflection, require us to recognize
that, in our adversary system of criminal justice, any person haled
into court, who is too poor to hire a lawyer, cannot be assured a
fair trial unless counsel is provided for him. This seems to us to
be an obvious truth. Governments, both state and federal, quite
properly spend vast sums of money to establish machinery to try
defendants accused of crime. Lawyers to prosecute are everywhere
deemed essential to protect the public's interest in an orderly
society. Similarly, there are few defendants charged with crime,
few indeed, who fail to hire the best lawyers they can get to
prepare and present their defenses. That government hires lawyers
to prosecute and defendants who have the money hire lawyers to
defend are the strongest indications of the widespread belief that
lawyers in criminal courts are necessities, not luxuries. The right
of one charged with crime to counsel may not be deemed fundamental
and essential to fair trials in some countries, but it is in ours.
From the very beginning, our state and national constitutions and
laws have laid great emphasis on procedural and substantive
safeguards designed to assure fair trials before impartial
tribunals in which every defendant stands equal before the law.
This noble ideal cannot be realized if the poor man charged with
crime has to face his accusers without a lawyer to assist him. A
defendant's need for a lawyer is nowhere better stated than in the
moving words of Mr. Justice Sutherland in Powell v.
Alabama: "The right to be heard would be, in many cases, of little avail
if it did not comprehend the right to be Page 372 U. S. 345 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."

															287 U.S. at 287 U. S. 68 -69.
The Court in Betts v. Brady departed from the sound wisdom
upon which the Court's holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as
friends of the Court, argue that Betts was "an anachronism
when handed down," and that it should now be overruled. We
agree.

															The judgment is reversed, and the cause is remanded to the
Supreme Court of Florida for further action not inconsistent with
this opinion. Reversed. [ Footnote 1 ]

															Later, in the petition for habeas corpus, signed and apparently
prepared by petitioner himself, he stated, "I, Clarence Earl
Gideon, claim that I was denied the rights of the 4th, 5th and 14th
amendments of the Bill of Rights."

															[ Footnote 2 ]

															Of the many such cases to reach this Court, recent examples are Carnley v. Cochran, 369 U. S. 506 (1962); Hudson v. North Carolina, 363 U.
S. 697 (1960); Moore v. Michigan, 355 U.
S. 155 (1957). Illustrative cases in the state courts
are Artrip v. State, 136 So. 2d 574 (Ct.App.Ala.1962); Shafer v. Warden, 211 Md. 635, 126 A.2d 573 (1956). For
examples of commentary, see Allen, The Supreme Court,
Federalism, and State Systems of Criminal Justice, 8 De Paul L.Rev.
213 (1959); Kamisar, The Right to Counsel and the Fourteenth
Amendment: A Dialogue on "The Most Pervasive Right" of an Accused,
30 U. of Chi.L.Rev. 1 (1962); The Right to Counsel, 45 Minn.L.Rev.
693 (1961).

															[ Footnote 3 ] Johnson v. Zerbst, 304 U. S. 458 (1938).

															[ Footnote 4 ] E.g., Gitlow v. New York, 268 U.
S. 652 , 268 U. S. 666 (1925) (speech and press); Lovell v. City of Griffin, 303 U. S. 444 , 303 U. S. 450 (1938) (speech and press); Staub v. City of Baxley, 355 U. S. 313 , 355 U. S. 321 (1958) (speech); Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 244 (1936) (press); Cantwell v. Connecticut, 310 U.
S. 296 , 310 U. S. 303 (1940) (religion); De Jonge v. Oregon, 299 U.
S. 353 , 299 U. S. 364 (1937) (assembly); Shelton v. Tucker, 364 U.
S. 479 , 364 U. S. 486 ,
488 (1960) (association); Louisiana ex rel. Gremillion v.
NAACP, 366 U. S. 293 , 366 U. S. 296 (1961) (association); Edwards v. South Carolina, 372 U. S. 229 (1963) (speech, assembly, petition for redress of grievances).

															[ Footnote 5 ] E.g., Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S.
235 -241 (1897); Smyth v. Ames, 169 U.
S. 466 , 169 U. S.
522 -526 (1898).

															[ Footnote 6 ] E.g., Wolf v. Colorado, 338 U. S.
25 , 338 U. S. 27 -28
(1949); Elkins v. United States, 364 U.
S. 206 , 364 U. S. 213 (1960); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 655 (1961).

															[ Footnote 7 ] Robinson v. California, 370 U.
S. 660 , 370 U. S. 666 (1962).

															MR. JUSTICE DOUGLAS.

															While I join the opinion of the Court, a brief historical resume
of the relation between the Bill of Rights and the first section of
the Fourteenth Amendment seems pertinent. Since the adoption of
that Amendment, ten justices have felt that it protects from
infringement by the States the privileges, protections, and
safeguards granted by the Bill of Rights. Page 372 U. S. 346 Justice Field, the first Justice Harlan, and probably Justice
Brewer, took that position in O'Neil v. Vermont, 144 U. S. 323 , 144 U. S.
362 -363, 144 U. S.
370 -371, as did Justices BLACK, DOUGLAS, Murphy and
Rutledge in Adamson v. California, 332 U. S.
46 , 332 U. S. 71 -72,
124. And see Poe v. Ullman, 367 U.
S. 497 , 367 U. S.
515 -522 (dissenting opinion). That view was also
expressed by Justices Bradley and Swayne in the Slaughter-House
Cases , 16 Wall. 36, 83 U. S.
118 -119, 83 U. S. 122 ,
and seemingly was accepted by Justice Clifford when he dissented
with Justice Field in Walker v. Sauvinet, 92 U. S.
90 , 92 U. S. 90 , 92 U. S. 92 .
[ Footnote 2/1 ] Unfortunately, it
has never commanded a Court. Yet, happily, all constitutional
questions are always open. Erie R. Co. v. Tompkins, 304 U. S. 64 . And
what we do today does not foreclose the matter.

															My Brother HARLAN is of the view that a guarantee of the Bill of
Rights that is made applicable to the States by reason of the
Fourteenth Amendment is a lesser version of that same guarantee as
applied to the Federal Government. [ Footnote 2/2 ] Mr. Justice Jackson shared that view.
[ Footnote 2/3 ] Page 372 U. S. 347 But that view has not prevailed, [ Footnote 2/4 ] and rights protected against state
invasion by the Due Process Clause of the Fourteenth Amendment are
not watered-dow versions of what the Bill of Rights guarantees.

															[ Footnote 2/1 ]

															Justices Bradley, Swayne and Field emphasized that the first
eight Amendments granted citizens of the United States certain
privileges and immunities that were protected from abridgment by
the States by the Fourteenth Amendment. See Slaughter-House
Cases, supra, at 83 U. S.
118 -119; O'Neil v. Vermont, supra, at 144 U. S. 363 .
Justices Harlan and Brewer accepted the same theory in the O'Neil case ( see id. at 144 U. S.
370 -371), though Justice Harlan indicated that all
"persons," not merely "citizens," were given this protection. Ibid. In Twining v. New Jersey, 211 U. S.
78 , 211 U. S. 117 ,
Justice Harlan's position was made clear:

															"In my judgment, immunity from self-incrimination is protected
against hostile state action not only by . . . [the Privileges and
Immunities Clause], but [also] by . . . [the Due Process
Clause]."

															Justice Brewer, in joining the opinion of the Court, abandoned
the view that the entire Bill of Rights applies to the States in Maxwell v. Dow, 176 U. S. 581 .

															[ Footnote 2/2 ] See Roth v. United States, 354 U.
S. 476 , 354 U. S. 501 ,
506; Smith v. California, 361 U.
S. 147 , 361 U. S.
169 .

															[ Footnote 2/3 ] Beauharnais v. Illinois, 343 U.
S. 250 , 343 U. S. 288 . Cf. the opinions of Justices Holmes and Brandeis in Gitlow v. New York, 268 U. S. 652 , 268 U. S. 672 ,
and Whitney v. California, 274 U.
S. 357 , 274 U. S.
372 .

															[ Footnote 2/4 ]

															The cases are collected by MR. JUSTICE BLACK in Speiser v.
Randall, 357 U. S. 513 , 357 U. S. 530 . And see Eaton v. Price, 364 U. S. 263 , 364 U. S.
274 -276.

															MR. JUSTICE CLARK, concurring in the result.

															In Bute v. Illinois, 333 U. S. 640 (1948), this Court found no special circumstances requiring the
appointment of counsel, but stated that,

															"if these charges had been capital charges, the court would have
been required, both by the state statute and the decisions of this
Court interpreting the Fourteenth Amendment, to take some such
steps." Id. at 339 U. S. 674 .
Prior to that case, I find no language in any cases in this Court
indicating that appointment of counsel in all capital cases was
required by the Fourteenth Amendment. [ Footnote 3/1 ] At the next Term of the Court, Mr. Justice
Reed revealed that the Court was divided as to noncapital cases,
but that "the due process clause . . . requires counsel for all
persons charged with serious crimes. . . ." Uveges v.
Pennsylvania, 335 U. S. 437 , 335 U. S. 441 (1948). Finally, in Hamilton v. Alabama, 368 U. S.
52 (1961), we said that, "[w]hen one pleads to a capital
charge without benefit of counsel, we do not stop to determine
whether prejudice resulted." Id. at 368 U. S.
55 . Page 372 U. S. 348 That the Sixth Amendment requires appointment of counsel in "all
criminal prosecutions" is clear both from the language of the
Amendment and from this Court's interpretation. See Johnson v.
Zerbst, 304 U. S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U. S. 455 (1942), that the Fourteenth Amendment requires such appointment in
all prosecutions for capital crimes. The Court's decision today,
then, does no more than erase a distinction which has no basis in
logic and an increasingly eroded basis in authority. In Kinsella v. United States ex rel. Singleton, 361 U.
S. 234 (1960), we specifically rejected any
constitutional distinction between capital and noncapital offenses
as regards congressional power to provide for court-martial trials
of civilian dependents of armed forces personnel. Having previously
held that civilian dependents could not constitutionally be
deprived of the protections of Article III and the Fifth and Sixth
Amendments in capital cases, Reid v. Covert, 354 U. S.
1 (1957), we held that the same result must follow in
noncapital cases. Indeed, our opinion there foreshadowed the
decision today, [ Footnote 3/2 ] as
we noted that:

															"Obviously Fourteenth Amendment cases dealing with state action
have no application here, but if Page 372 U. S. 349 they did, we believe that to deprive civilian dependents of the
safeguards of a jury trial here . . . would be as invalid under
those cases as it would be in cases of a capital nature."

															361 U.S. at 361 U. S.
246 -247.

															I must conclude here, as in Kinsella, supra, that the
Constitution makes no distinction between capital and noncapital
cases. The Fourteenth Amendment requires due process of law for the
deprival of "liberty," just as for deprival of "life," and there
cannot constitutionally be a difference in the quality of the
process based merely upon a supposed difference in the sanction
involved. How can the Fourteenth Amendment tolerate a procedure
which it condemns in capital cases on the ground that deprival of
liberty may be less onerous than deprival of life -- a value
judgment not universally accepted [ Footnote 3/3 ] -- or that only the latter deprival is
irrevocable? I can find no acceptable rationalization for such a
result, and I therefore concur in the judgment of the Court.

															[ Footnote 3/1 ]

															It might, however, be said that there is such an implication in Avery v. Alabama, 308 U. S. 444 (1940), a capital case in which counsel had been appointed, but in
which the petitioner claimed a denial of "effective" assistance.
The Court, in affirming, noted that,

															"[h]ad petitioner been denied any representation of counsel at
all, such a clear violation of the Fourteenth Amendment's guarantee
of assistance of counsel would have required reversal of his
conviction." Id. at 308 U. S. 445 .
No "special circumstances" were recited by the Court, but, in
citing Powell v. Alabama, 287 U. S.
45 (1932), as authority for its dictum, it appears that
the Court did not rely solely on the capital nature of the
offense.

															[ Footnote 3/2 ]

															Portents of today's decision may be found as well in Griffin
v. Illinois, 351 U. S. 12 (1956), and Ferguson v. Georgia, 365 U.
S. 570 (1961). In Griffin, a noncapital case,
we held that the petitioner's constitutional rights were violated
by the State's procedure, which provided free transcripts for
indigent defendants only in capital cases. In Ferguson, we
struck down a state practice denying the appellant the effective
assistance of counsel, cautioning that

															"[o]ur decision does not turn on the facts that the appellant
was tried for a capital offense and was represented by employed
counsel. The command of the Fourteenth Amendment also applies in
the case of an accused tried for a noncapital offense, or
represented by appointed counsel."

															365 U.S. at 365 U. S.
596 .

															[ Footnote 3/3 ] See, e.g., Barzun, In Favor of Capital Punishment, 31
American Scholar 181, 188-189 (1962).

															MR. JUSTICE HARLAN, concurring.

															I agree that Betts v. Brady should be overruled, but
consider it entitled to a more respectful burial than has been
accorded, at least on the part of those of us who were not on the
Court when that case was decided.

															I cannot subscribe to the view that Betts v. Brady represented "an abrupt break with its own well considered
precedents." Ante, p. 372 U. S. 344 .
In 1932, in Powell v. Alabama, 287 U. S.
45 , a capital case, this Court declared that, under the
particular facts there presented --

															"the ignorance and illiteracy of the defendants, their youth,
the circumstances of public hostility . . . and, above all, that
they stood in deadly peril of their lives"

															(287 U.S. at 287 U. S. 71 ) --
the state court had a duty to assign counsel for Page 372 U. S. 350 the trial as a necessary requisite of due process of law. It is
evident that these limiting facts were not added to the opinion as
an afterthought; they were repeatedly emphasized, see 287
U.S. at 287 U. S. 52 , 287 U. S. 57 -58, 287 U. S. 71 ,
and were clearly regarded as important to the result.

															Thus, when this Court, a decade later, decided Betts v.
Brady, it did no more than to admit of the possible existence
of special circumstances in noncapital, as well as capital, trials,
while at the same time insisting that such circumstances be shown
in order to establish a denial of due process. The right to
appointed counsel had been recognized as being considerably broader
in federal prosecutions, see Johnson v. Zerbst, 304 U. S. 458 , but
to have imposed these requirements on the States would indeed have
been "an abrupt break" with the almost immediate past. The
declaration that the right to appointed counsel in state
prosecutions, as established in Powell v. Alabama, was not
limited to capital cases was, in truth, not a departure from, but
an extension of, existing precedent.

															The principles declared in Powell and in Betts, however, have had a troubled journey throughout the
years that have followed first the one case and then the other.
Even by the time of the Betts decision, dictum in at least
one of the Court's opinions had indicated that there was an
absolute right to the services of counsel in the trial of state
capital cases. [ Footnote 4/1 ] Such
dicta continued to appear in subsequent decisions, [ Footnote 4/2 ] and any lingering doubts were finally
eliminated by the holding of Hamilton v. Alabama, 368 U. S. 52 .

															In noncapital cases, the "special circumstances" rule has
continued to exist in form while its substance has been
substantially and steadily eroded. In the first decade after Betts, there were cases in which the Court Page 372 U. S. 351 found special circumstances to be lacking, but usually by a
sharply divided vote. [ Footnote
4/3 ] However, no such decision has been cited to us, and I have
found none, after Quicksall v. Michigan, 339 U.
S. 660 , decided in 1950. At the same time, there have
been not a few cases in which special circumstances were found in
little or nothing more than the "complexity" of the legal questions
presented, although those questions were often of only routine
difficulty. [ Footnote 4/4 ] The
Court has come to recognize, in other words, that the mere
existence of a serious criminal charge constituted, in itself,
special circumstances requiring the services of counsel at trial.
In truth, the Betts v. Brady rule is no longer a
reality.

															This evolution, however, appears not to have been fully
recognized by many state courts, in this instance charged with the
front-line responsibility for the enforcement of constitutional
rights. [ Footnote 4/5 ] To continue
a rule which is honored by this Court only with lip service is not
a healthy thing, and, in the long run, will do disservice to the
federal system.

															The special circumstances rule has been formally abandoned in
capital cases, and the time has now come when it should be
similarly abandoned in noncapital cases, at least as to offenses
which, as the one involved here, carry the possibility of a
substantial prison sentence. (Whether the rule should extend to all
criminal cases need not now be decided.) This indeed does no more
than to make explicit something that has long since been
foreshadowed in our decisions. Page 372 U. S. 352 In agreeing with the Court that the right to counsel in a case
such as this should now be expressly recognized as a fundamental
right embraced in the Fourteenth Amendment, I wish to make a
further observation. When we hold a right or immunity, valid
against the Federal Government, to be "implicit in the concept of
ordered liberty" [ Footnote 4/6 ] and
thus valid against the States, I do not read our past decisions to
suggest that, by so holding, we automatically carry over an entire
body of federal law and apply it in full sweep to the States. Any
such concept would disregard the frequently wide disparity between
the legitimate interests of the States and of the Federal
Government, the divergent problems that they face, and the
significantly different consequences of their actions. Cf. Roth
v. United States, 354 U. S. 476 , 354 U. S.
496 -508 (separate opinion of this writer). In what is
done today, I do not understand the Court to depart from the
principles laid down in Palko v. Connecticut, 302 U.
S. 319 , or to embrace the concept that the Fourteenth
Amendment "incorporates" the Sixth Amendment as such.

															On these premises I join in the judgment of the Court.

															[ Footnote 4/1 ] Avery v. Alabama, 308 U. S. 444 , 308 U. S.
445 .

															[ Footnote 4/2 ] E.g., Bute v. Illinois, 333 U.
S. 640 , 333 U. S. 674 ; Uveges v. Pennsylvania, 335 U. S. 437 , 335 U. S.
441 .

															[ Footnote 4/3 ] E.g., Foster v. Illinois, 332 U.
S. 134 ; Bute v. Illinois, 333 U.
S. 640 ; Gryger v. Burke, 334 U.
S. 728 .

															[ Footnote 4/4 ] E.g., Williams v. Kaiser, 323 U.
S. 471 ; Hudson v. North Carolina, 363 U.
S. 697 ; Chewning v. Cunningham, 368 U.
S. 443 .

															[ Footnote 4/5 ] See, e.g., Commonwealth ex rel. Simon v. Maroney, 405
Pa. 562, 176 A.2d 94 (1961); Shaffer v. Warden, 211 Md.
635, 126 A.2d 573 (1956); Henderson v. Bannan, 256 F.2d
363 (C.A. 6th Cir.1958).

															[ Footnote 4/6 ] Palko v. Connecticut, 302 U. S. 319 , 302 U. S.
325 .


U.S. Supreme Court Rochin v. California, 342
U.S. 165 (1952) Rochin v. California No. 83 Argued October 16,
1951 Decided January 2,
1952 342
U.S. 165 CERTIORARI TO THE DISTRICT COURT OF
APPEAL FOR THE SECOND APPELLATE DISTRICT OF
CALIFORNIA Syllabus Having "some information" that petitioner was selling narcotics,
three state officers entered his home and forced their way into the
bedroom occupied by him and his wife. When asked about two capsules
lying on a bedside table, petitioner put them in his mouth. After
an unsuccessful struggle to extract them by force, the officers
took petitioner to a hospital, where an emetic was forced into his
stomach against his will. He vomited two capsules which were found
to contain morphine. These were admitted in evidence over his
objection, and he was convicted in a state court of violating a
state law forbidding possession of morphine. Held: The conviction is reversed, because it was
obtained by methods violative of the Due Process Clause of the
Fourteenth Amendment. Pp. 342 U. S.
166 -174. 101 Cal. App.
2d 140 , 225 P.2d 1, reversed.

															In a California state court, petitioner was convicted of
violating a state law forbidding the possession of morphine. The
District Court of Appeal affirmed. 101 Cal. App.
2d 140 , 225 P.2d 1. The State Supreme Court denied a review.
This Court granted certiorari. 341 U.S. 939. Reversed, p. 342 U. S.
174 . Page 342 U. S. 166 MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

															Having "some information that [the petitioner here] was selling
narcotics," three deputy sheriffs of the County of Los Angeles, on
the morning of July 1, 1949, made for the two-story dwelling house
in which Rochin lived with his mother, common law wife, brothers
and sisters. Finding the outside door open, they entered and then
forced open the door to Rochin's room on the second floor. Inside
they found petitioner sitting partly dressed on the side of the
bed, upon which his wife was lying. On a "night stand" beside the
bed, the deputies spied two capsules. When asked "Whose stuff is
this?", Rochin seized the capsules and put them in his mouth. A
struggle ensued in the course of which the three officers "jumped
upon him" and attempted to extract the capsules. The force they
applied proved unavailing against Rochin's resistance. He was
handcuffed and taken to a hospital. At the direction of one of the
officers, a doctor forced an emetic solution through a tube into
Rochin's stomach against his will. This "stomach pumping" produced
vomiting. In the vomited matter were found two capsules which
proved to contain morphine.

															Rochin was brought to trial before a California Superior Court,
sitting without a jury, on the charge of possessing "a preparation
of morphine" in violation of the California Health and Safety Code
1947, § 11500. Rochin was convicted and sentenced to sixty days'
imprisonment. The chief evidence against him was the two capsules.
They were admitted over petitioner's objection, although the means
of obtaining them was frankly set forth in the testimony by one of
the deputies, substantially as here narrated.

															On appeal, the District Court of Appeal affirmed the conviction,
despite the finding that the officer

															"were Page 342 U. S. 167 guilty of unlawfully breaking into and entering defendant's
room, and were guilty of unlawfully assaulting and battering
defendant while in the room,"

															and "were guilty of unlawfully assaulting, battering, torturing
and falsely imprisoning the defendant at the alleged hospital." 101 Cal. App.
2d 140 , 143, 225 P.2d 1, 3. One of the three judges, while
finding that "the record in this case reveals a shocking series of
violations of constitutional rights", concurred only because he
felt bound by decisions of his Supreme Court. These, he asserted,
"have been looked upon by law enforcement officers as an
encouragement, if not an invitation, to the commission of such
lawless acts." Ibid. The Supreme Court of California
denied without opinion Rochin's petition for a hearing. [ Footnote 1 ] Two justice dissented from
this denial, and, in doing so, expressed themselves thus:

															". . . a conviction which rests upon evidence of incriminating
objects obtained from the body of the accused by physical abuse is
as invalid as a conviction which rests upon a verbal confession
extracted from him by such abuse. . . . Had the evidence forced
from defendant's lips consisted of an oral confession that he
illegally possessed a drug . . . , he would have the protection of
the rule of law which excludes coerced confessions from evidence.
But because the evidence forced from his lips consisted of real
objects, the People of this state are permitted to base a
conviction upon it. [We] find no valid ground of distinction
between a verbal confession extracted by physical abuse and a
confession wrested from defendant's body by physical abuse."

															101 Cal. App. 2d 143, 149-150, 225 P.2d 913, 917-918. Page 342 U. S. 168 This Court granted certiorari, 341 U.S. 939, because a serious
question is raised as to the limitations which the Due Process
Clause of the Fourteenth Amendment imposes on the conduct of
criminal proceedings by the States.

															In our federal system, the administration of criminal justice is
predominantly committed to the care of the States. The power to
define crimes belongs to Congress only as an appropriate means of
carrying into execution its limited grant of legislative powers.
U.S.Const. Art. I, § 8, cl. 18. Broadly speaking, crimes in the
United States are what the laws of the individual States make them,
subject to the limitations of Art. I, § 10, cl. 1, in the original
Constitution, prohibiting bills of attainder and ex post
facto laws, and of the Thirteenth and Fourteenth
Amendments.

															These limitations, in the main, concern not restrictions upon
the powers of the States to define crime, except in the restricted
area where federal authority has preempted the field, but
restrictions upon the manner in which the States may enforce their
penal codes. Accordingly, in reviewing a State criminal conviction
under a claim of right guaranteed by the Due Process Clause of the
Fourteenth Amendment, from which is derived the most far-reaching
and most frequent federal basis of challenging State criminal
justice,

															"we must be deeply mindful of the responsibilities of the States
for the enforcement of criminal laws, and exercise with due
humility our merely negative function in subjecting convictions
from state courts to the very narrow scrutiny which the Due Process
Clause of the Fourteenth Amendment authorizes." Malinski v. New York, 324 U. S. 401 , 324 U. S. 412 , 324 U. S. 418 .
Due process of law, "itself a historical product," Jackman v.
Rosenbaum Co., 260 U. S. 22 , 260 U. S. 31 , is
not to be turned into a destructive dogma against the States in the
administration of their systems of criminal justice. Page 342 U. S. 169 However, this Court too has its responsibility. Regard for the
requirements of the Due Process Clause

															"inescapably imposes upon this Court an exercise of judgment
upon the whole course of the proceedings [resulting in a
conviction] in order to ascertain whether they offend those canons
of decency and fairness which express the notions of justice of
English-speaking peoples even toward those charged with the most
heinous offenses." Malinski v. New York, supra, at 324 U. S.
416 -417. These standards of justice are not
authoritatively formulated anywhere as though they were specifics.
Due process of law is a summarized constitutional guarantee of
respect for those personal immunities which, as Mr. Justice Cardozo
twice wrote for the Court, are "so rooted in the traditions and
conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97 , 291 U. S. 105 ,
or are "implicit in the concept of ordered liberty." Palko v.
Connecticut, 302 U. S. 319 , 302 U. S. 325 .
[ Footnote 2 ]

															The Court's function in the observance of this settled
conception of the Due Process Clause does not leave us without
adequate guides in subjecting State criminal procedures to
constitutional judgment. In dealing not with the machinery of
government, but with human rights, the absence of formal
exactitude, or want of fixity of meaning, is not an unusual, or
even regrettable, attribute of constitutional provisions. Words
being symbols do not speak without a gloss. On the one hand, the
gloss may be the deposit of history, whereby a term gains technical
content. Thus the requirements of the Sixth and Seventh Amendments
for trial by jury in the federal Page 342 U. S. 170 courts have a rigid meaning. No changes or chances can alter the
content of the verbal symbol of "jury" -- a body of twelve men who
must reach a unanimous conclusion if the verdict is to go against
the defendant. [ Footnote 3 ] On
the other hand, the gloss of some of the verbal symbols of the
Constitution does not give them a fixed technical content. It
exacts a continuing process of application.

															When the gloss has thus not been fixed, but is a function of the
process of judgment, the judgment is bound to fall differently at
different times and differently at the same time through different
judges. Even more specific provisions, such as the guaranty of
freedom of speech and the detailed protection against unreasonable
searches and seizures, have inevitably evoked as sharp divisions in
this Court as the least specific and most comprehensive protection
of liberties, the Due Process Clause.

															The vague contours of the Due Process Clause do not leave judges
at large. [ Footnote 4 ] We may
not draw on our merely personal and private notions and disregard
the limits that bind judges in their judicial function. Even though
the concept of due process of law is not final and fixed, these
limits are derived from considerations that are fused in the whole
nature of or judicial process. See Cardozo, Page 342 U. S. 171 The Nature of the Judicial Process; The Growth of the Law; The
Paradoxes of Legal Science. These are considerations deeply rooted
in reason and in the compelling traditions of the legal profession.
The Due Process Clause places upon this Court the duty of
exercising a judgment, within the narrow confines of judicial power
in reviewing State convictions, upon interests of society pushing
in opposite directions.

															Due process of law, thus conceived, is not to be derided as
resort to a revival of "natural law." [ Footnote 5 ] To believe that this judicial exercise of
judgment could be avoided by freezing "due process of law" at some
fixed stage of time or thought is to suggest that the most
important aspect of constitutional adjudication is a function for
inanimate machines, and not for judges, for whom the independence
safeguarded by Article III of the Constitution was designed and who
are presumably guided by established standards of judicial
behavior. Even cybernetics has not yet made that haughty claim. To
practice the requisite detachment and to achieve sufficient
objectivity no doubt demands of judges the habit of self-discipline
and self-criticism, incertitude that one's own views are
incontestable, and alert tolerance toward views not shared. But Page 342 U. S. 172 these are precisely the presuppositions of our judicial process.
They are precisely the qualities society has a right to expect from
those entrusted with ultimate judicial power.

															Restraints on our jurisdiction are self-imposed only in the
sense that there is from our decisions no immediate appeal short of
impeachment or constitutional amendment. But that does not make due
process of law a matter of judicial caprice. The faculties of the
Due Process Clause may be indefinite and vague, but the mode of
their ascertainment is not self-willed. In each case, "due process
of law" requires an evaluation based on a disinterested inquiry
pursued in the spirit of science, on a balanced order of facts
exactly and fairly stated, on the detached consideration of
conflicting claims, see Hudson County Water Co. v.
McCarter, 209 U. S. 349 , 209 U. S. 355 ,
on a judgment not ad hoc and episodic, but duly mindful of
reconciling the needs both of continuity and of change in a
progressive society.

															Applying these general considerations to the circumstances of
the present case, we are compelled to conclude that the proceedings
by which this conviction was obtained do more than offend some
fastidious squeamishness or private sentimentalism about combatting
crime too energetically. This is conduct that shocks the
conscience. Illegally breaking into the privacy of the petitioner,
the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents -- this course of
proceeding by agents of government to obtain evidence is bound to
offend even hardened sensibilities. They are methods too close to
the rack and the screw to permit of constitutional
differentiation.

															It has long since ceased to be true that due process of law is
heedless of the means by which otherwise relevant and credible
evidence is obtained. This was not true even before the series of
recent cases enforced the constitutional principle that the States
may not base convictions upon Page 342 U. S. 173 confessions, however much verified, obtained by coercion. These
decisions are not arbitrary exceptions to the comprehensive right
of States to fashion their own rules of evidence for criminal
trials. They are not sports in our constitutional law, but
applications of a general principle. They are only instances of the
general requirement that States, in their prosecutions, respect
certain decencies of civilized conduct. Due process of law, as a
historic and generative principle, precludes defining, and thereby
confining, these standards of conduct more precisely than to say
that convictions cannot be brought about by methods that offend "a
sense of justice." See Mr. Chief Justice Hughes, speaking
for a unanimous Court in Brown v. Mississippi, 297 U. S. 278 , 297 U. S.
285 -286. It would be a stultification of the
responsibility which the course of constitutional history has cast
upon this Court to hold that in order to convict a man the police
cannot extract by force what is in his mind but can extract what is
in his stomach. [ Footnote
6 ]

															To attempt in this case to distinguish what lawyers call "real
evidence" from verbal evidence is to ignore the reasons for
excluding coerced confessions. Use of involuntary verbal
confessions in State criminal trials is constitutionally obnoxious
not only because of their unreliability. They are inadmissible
under the Due Process Clause even though statements contained in
them may be independently established as true. Coerced confessions
offend the community's sense of fair play and decency. So here, to
sanction the brutal conduct which, naturally enough, was condemned
by the court whose judgment is before us would be to afford
brutality the cloak of law. Nothing Page 342 U. S. 174 would be more calculated to discredit law, and thereby to
brutalize the temper of a society.

															In deciding this, case we do not heedlessly bring into question
decisions in many States dealing with essentially different, even
if related, problems. We therefore put to one side cases which have
arisen in the State courts through use of modern methods and
devices for discovering wrongdoers and bringing them to book. It
does not fairly represent these decisions to suggest that they
legalize force so brutal and so offensive to human dignity in
securing evidence from a suspect as is revealed by this record.
Indeed, the California Supreme Court has not sanctioned this mode
of securing a conviction. It merely exercised its discretion to
decline a review of the conviction. All the California judges who
have expressed themselves in this case have condemned the conduct
in the strongest language.

															We are not unmindful that hypothetical situations can be
conjured up standing imperceptibly from the circumstances of this
case and, by gradations, producing practical differences despite
seemingly logical extensions. But the Constitution is "intended to
preserve practical and substantial rights, not to maintain
theories." Davis v. Mills, 194 U.
S. 451 , 194 U. S.
457 .

															On the facts of this case, the conviction of the petitioner has
been obtained by methods that offend the Due Process Clause. The
judgment below must be reversed. Reversed. MR. JUSTICE MINTON took no part in the consideration or decision
of this case.

															[ Footnote 1 ]

															The petition for a hearing is addressed to the discretion of the
California Supreme Court, and a denial has apparently the same
significance as the denial of certiorari in this Court. Cal.Const.
Art. VI, §§ 4, 4c; "Rules on Appeal," Rules 28, 29, 36 Cal. 2d
24-25 (1951). See 3 Stan.L.Rev. 243-269 (1951).

															[ Footnote 2 ]

															What is here summarized was deemed by a majority of the Court,
in Malinski v. New York, 324 U. S. 401 , 324 U. S. 412 and 324 U. S. 438 ,
to be "the controlling principles upon which this Court reviews on
constitutional grounds a state court conviction for crime." They
have been applied by this Court many times, long before and since
the Malinski case.

															[ Footnote 3 ]

															This is the federal jury required constitutionally, although
England and at least half of the States have, in some civil cases,
juries which are composed of less than 12 or whose verdict may be
less than unanimous. See County Courts Act, 1934, 24 &
25 Geo. V, c. 53, § 93; Arizona State Legislative Bureau,
Legislative Briefs No. 4, Grand and Petit Juries in the United
States, v-vi (Feb. 15, 1940); The Council of State Governments, The
Book of the States, 1950-1951, 515.

															[ Footnote 4 ]

															Burke's observations on the method of ascertaining law by judges
are pertinent:

															"Your committee do not find any positive law which binds the
judges of the courts in Westminster-hall publicly to give a
reasoned opinion from the bench in support of their judgment upon
matters that are stated before them. But the course hath prevailed
from the oldest times. It hath been so general and so uniform that
it must be considered as the law of the land."

															Report of the Committee of Managers on the Causes of the
Duration of Mr. Hastings' Trial, 4 Speeches of Edmund Burke (1816),
200-201.

															And Burke had an answer for those who argue that the liberty of
the citizen cannot be adequately protected by the flexible
conception of due process of law:

															". . . the English jurisprudence has not any other sure
foundation, nor consequently the lives and properties of the
subject any sure hold, but in the maxims, rules, and principles,
and juridical traditionary line of decisions. . . ." Id. at 201.

															[ Footnote 5 ]

															Morris R. Cohen, " Jus Naturale Redivivum, " 25
Philosophical Review 761 (1916), and "Natural Rights and Positive
Law," Reason and Nature 401-426 (1631); F. Pollock, "The History of
the Law of Nature," Essays in the Law 31-79 (1922).

															[ Footnote 6 ]

															As to the difference between the privilege against
self-crimination protected, in federal prosecutions, under the
Fifth Amendment and the limitations which the Due Process Clause of
the Fourteenth Amendment imposes upon the States against the use of
coerced confessions, see Brown v. Mississippi, supra, 297
U.S. at 297 U. S.
285 .

															MR. JUSTICE BLACK, concurring. Adamson v. California, 332 U. S.
46 , 332 U. S.
68 -123, sets out reasons for my belief that state, as
well as federal, courts and law enforcement officers must obey the
Fifth Amendment's command that "No person . . . shall be
compelled Page 342 U. S. 175 in any criminal case to be a witness against himself." I think a
person is compelled to be a witness against himself not only when
he is compelled to testify, but also when as here, incriminating
evidence is forcibly taken from him by a contrivance of modern
science. Cf. Boyd v. United States, 116 U.
S. 616 ; Counselman v. Hitchcock, 142 U.
S. 547 , 142 U. S. 562 ; Bram v. United States, 168 U. S. 532 ; Chambers v. Florida, 309 U. S. 227 .
California convicted this petitioner by using against him evidence
obtained in this manner, and I agree with MR. JUSTICE DOUGLAS that
the case should be reversed on this ground.

															In the view of a majority of the Court, however, the Fifth
Amendment imposes no restraint of any kind on the states. They
nevertheless hold that California's use of this evidence violated
the Due Process Clause of the Fourteenth Amendment. Since they hold
as I do in this case, I regret my inability to accept their
interpretation without protest. But I believe that faithful
adherence to the specific guarantees in the Bill of Rights insures
a more permanent protection of individual liberty than that which
can be afforded by the nebulous standards stated by the
majority.

															What the majority hold is that the Due Process Clause empowers
this Court to nullify any state law if its application "shocks the
conscience," offends "a sense of justice," or runs counter to the
"decencies of civilized conduct." The majority emphasize that these
statements do not refer to their own consciences, or to their
senses of justice and decency. For we are told that "we may not
draw on our merely personal and private notions"; our judgment must
be grounded on "considerations deeply rooted in reason and in the
compelling traditions of the legal profession." We are further
admonished to measure the validity of state practices not by our
reason or by the traditions of the legal profession, but by "the
community's sense of fair play and decency"; by the "traditions and
conscience of our people"; or by "those canons of decency and
fairness Page 342 U. S. 176 which express the notions of justice of English-speaking
peoples." These canons are made necessary, it is said, because of
"interests of society pushing in opposite directions."

															If the Due Process Clause does vest this Court with such
unlimited power to invalidate laws, I am still in doubt as to why
we should consider only the notions of English-speaking peoples to
determine what are immutable and fundamental principles of justice.
Moreover, one may well ask what avenues of investigation are open
to discover "canons" of conduct so universally favored that this
Court should write them into the Constitution? All we are told is
that the discovery must be made by an "evaluation based on a
disinterested inquiry pursued in the spirit of science, on a
balanced order of facts."

															Some constitutional provisions are stated in absolute and
unqualified language, such, for illustration, as the First
Amendment, stating that no law shall be passed prohibiting the free
exercise of religion or abridging the freedom of speech or press.
Other constitutional provisions do require courts to choose between
competing policies, such as the Fourth Amendment, which, by its
terms, necessitates a judicial decision as to what is an
"unreasonable" search or seizure. There is, however, no express
constitutional language granting judicial power to invalidate every
state law of every kind deemed "unreasonable" or contrary to the
Court's notion of civilized decencies; yet the constitutional
philosophy used by the majority has, in the past, been used to deny
a state the right to fix the price of gasoline, Williams v.
Standard Oil Co. of Louisiana, 278 U.
S. 235 ; and even the right to prevent bakers from
palming off smaller for larger loaves of bread, Jay Burns
Baking Co. v. Bryan, 264 U. S. 504 .
These cases, and others, [ Footnote
2/1 ] Page 342 U. S. 177 show the extent to which the evanescent standards of the
majority's philosophy have been used to nullity state legislative
programs passed to suppress evil economic practices. What
paralyzing role this same philosophy will play in the future
economic affairs of this country is impossible to predict. Of even
graver concern, however, is the use of the philosophy to nullify
the Bill of Rights. I long ago concluded that the accordion-like
qualities of this philosophy must inevitably imperil all the
individual liberty safeguards specifically enumerated in the Bill
of Rights. [ Footnote 2/2 ]
Reflection and recent decisions [ Footnote 2/3 ] of this Court sanctioning abridgment of
the freedom of speech and press have strengthened this
conclusion.

															[ Footnote 2/1 ] See n. 12 of dissenting opinion, Adamson v.
California, supra, at p. 332 U. S.
83 .

															[ Footnote 2/2 ] E.g., Adamson v. California, supra, and cases cited in
the dissent.

															[ Footnote 2/3 ] American Communications Ass'n v. Douds, 339 U.
S. 382 ; Feiner v. New York, 340 U.
S. 315 ; Dennis v. United States, 341 U.
S. 494 .

															MR. JUSTICE DOUGLAS, concurring.

															The evidence obtained from this accused's stomach would be
admissible in the majority of states where the question has been
raised. [ Footnote 3/1 ] So far as
the reported cases reveal, the only states which would probably
exclude the evidence would be Arkansas, Iowa, Michigan, and
Missouri. [ Footnote 3/2 ] Page 342 U. S. 178 Yet the Court now says that the rule which the majority of the
states have fashioned violates the "decencies of civilized
conduct." To that, I cannot agree. It is a rule formulated by
responsible courts with judges as sensitive as we are to the proper
standards for law administration.

															As an original matter, it might be debatable whether the
provision in the Fifth Amendment that no person "shall be compelled
in any criminal case to be a witness against himself" serves the
ends of justice. Not all civilized legal procedures recognize it.
[ Footnote 3/3 ] But the choice was
made by the Framers, a choice which sets a standard for legal
trials in this country. The Framers made it Page 342 U. S. 179 a standard of due process for prosecutions by the Federal
Government. If it is a requirement of due process for a trial in
the federal courthouse, it is impossible for me to say it is not a
requirement of due process for a trial in the state courthouse.
That was the issue recently surveyed in Adamson v.
California, 332 U. S. 46 . The
Court rejected the view that compelled testimony should be
excluded, and held, in substance, that the accused in a state trial
can be forced to testify against himself. I disagree. Of course, an
accused can be compelled to be present at the trial, to stand, to
sit, to turn this way or that, and to try on a cap or a coat. See Holt v. United States, 218 U.
S. 245 , 218 U. S.
252 -253. But I think that words taken from his lips,
capsules taken from his stomach, blood taken from his veins, are
all inadmissible provided they are taken from him without his
consent. They are inadmissible because of the command of the Fifth
Amendment.

															That is an unequivocal, definite and workable rule of evidence
for state and federal courts. But we cannot, in fairness, free the
state courts from that command and yet excoriate them for flouting
the "decencies of civilized conduct" when they admit the evidence.
That is to make the rule turn not on the Constitution, but on the
idiosyncrasies of the judges who sit here.

															The damage of the view sponsored by the Court in this case may
not be conspicuous here. But it is part of the same philosophy that
produced Betts v. Brady, 316 U. S. 455 ,
denying counsel to an accused in a state trial against the command
of the Sixth Amendment, and Wolf v. Colorado, 338 U. S.
25 , allowing evidence obtained as a result of a search
and seizure that is illegal under the Fourth Amendment to be
introduced in a state trial. It is part of the process of erosion
of civil rights of the citizen in recent years.

															[ Footnote 3/1 ] See People v. One 1941 Mercury Sedan, 74 Cal. App. 2d
199 , 168 P.2d 443 (pumping of accused's stomach to recover
swallowed narcotic); Rochin v. California, 101 Cal. App.
2d 140 , 225 P.2d 1 (pumping of accused's stomach to recover
swallowed narcotic); People v. Tucker, 88 Cal. App. 2d
333 , 198 P.2d 941 (blood test to determine intoxication); State v. Ayres, 70 Idaho 18, 211 P.2d 142 (blood test to
determine intoxication); Davis v. State, 189 Md. 640, 57
A.2d 289 (blood typing to link accused with murder); Skidmore
v. State, 59 Nev. 320, 92 P.2d 979 (examination of accused for
venereal disease); State v. Sturtevant, 96 N.H. 99, 70
A.2d 909 (blood test to determine intoxication); State v.
Alexander, 7 N.J. 585, 83 A.2d
441 (blood typing to establish guilt); State v.
Gatton, 60 Ohio App. 192 (commenting on refusal to submit to
blood test or urinalysis to determine intoxication); State v.
Nutt, 78 Ohio App. 336, 65 N.E.2d 675 (commenting on refusal
to submit to urinalysis to determine intoxication); but cf.
Booker v. City of Cincinnati, 1 Ohio Supp. 152 (examination
and urinalysis to determine intoxication); State v. Cram, 176 Or. 577, 160 P.2d 283 (blood test to determine intoxication); Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688
(blood typing linking accused to assault).

															[ Footnote 3/2 ] Bethel v. State, 178 Ark. 277, 10 S.W.2d 370
(examination for venereal disease); State v. Height, 117
Iowa 650, 91 N.W. 935 (examination for venereal disease); State
v. Weltha, 228 Iowa 519, 292 N.W. 148 (blood test to determine
intoxication, limiting rules on search and seizure); but cf.
State v. Benson, 230 Iowa 1168, 300 N.W. 275 (comment on
refusal to submit to blood test to determine intoxication); People v. Corder, 244 Mich. 274, 221 N.W. 309 (examination
for venereal disease); but see People v. Placido, 310
Mich. 404, 408, 17 N.W.2d 230, 232; State v. Newcomb, 220
Mo. 54, 119 S.W. 405 (examination for venereal disease); State
v. Matsinger, Mo., 180 S.W. 856 (examination for venereal
disease).

															[ Footnote 3/3 ] See Ploscowe, The Investigating Magistrate in European
Criminal Procedure, 33 Mich.L.Rev. 1010 (1935).