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heard. Upon allegations of this gravity in our opinion it ought to be heard, whatever the decision of the State court may have been, and it did not need to set forth contradictory evidence, or matter of rebuttal, or to explain why the motions for a new trial and to set aside the verdict were overruled by the State court. There is no reason to fear an impairment of the authority of the State to punish the guilty. We do not think it impracticable in any part of this country to have trials free from outside control. But to maintain this immunity it may be necessary that the supremacy of the law and of the Federal Constitution should be vindicated in a case like this. It may be that on a hearing a different complexion would be given to the judge's alleged request and expression of fear. But supposing the alleged facts to be true, we are of opinion that if they were before the Supreme Court it sanctioned a situation upon which the Courts of the United States should act, and if for any reason they were not before the Supreme Court, it is our duty to act upon them now and to declare lynch law as little valid when practised by a regularly drawn jury as when administered by one elected by a mob intent on death.

There is an old maxim that "hard cases make bad law," but the manner of its application to the Frank case may not be beyond peradventure. Of course, it is a startling suggestion that, with all the difficulties already encountered in making the processes of the crimi

nal law prompt and efficacious, there should be added the possibility of an appeal, in some instances, to the Federal Courts, through applications for a writ of habeas corpus, with the resultant delay through the time required for determination in the Federal jurisdiction. The theory had been, and remains, that unless the statutes under which the trial took place, or the form of proceedings had, presented a clear Federal question, challenging the validity of the whole trial and the conviction ensuing thereon, the action of the State Court was unreviewable in the Federal Court, through writ of habeas corpus or any other procedure which could delay the execution of the mandate of the State Court without the affirmative action of the Supreme Court or one or more Justices thereof.

The question raised by Justices Holmes and Hughes may not, however, be regarded as disposed of never to recur. The question may perhaps be stated in this direct and concrete way: Suppose John Jones, whom you knew well, instead of Leo Frank, whom you did not know at all, were convicted of murder and was about to be hanged. He had been tried in the State Court, and his conviction had been confirmed on appeal. Under the Federal law, available to every man on equal terms, he was entitled to a writ of habeas corpus if he were held in custody as a result of proceedings violative of the Federal Constitution. Provisions of the Federal Constitution make it a National duty that the

Federal courts shall see to it that nothing happening in a State court shall deprive any man of his life or his liberty without a trial in fact fair. Suppose the State court, the fairness of whose proceedings was challenged, had decided that its proceedings were in fact fair and violated no right under the constitutional guaranties. Suppose John Jones then offered to the Federal District Court evidence which, if true, showed that his trial was not in fact fair, within the meaning of the Federal Constitution; and Jones said that he wanted his writ of habeas corpus, which the Federal statute said he was entitled to when he was held in custody under proceedings not amounting to the fair trial guaranteed by the Federal Constitution. Would you think it would then be the duty of the Federal court to go ahead, hear the other side, take all the facts, and then see to it whether Jones' story was true as to what took place on the trial and whether any requirement of the Federal Constitution had in fact been violated, or ought the Federal court just to let the decision of the State court on the question stand as conclusive without hearing any of the evidence on the question of the fairness of the trial?

Has the National judicial power now no responsibility as to what happens to Jones, if he offers evidence and makes allegations which, if true, would show that he had been convicted through the withholding of the kind of a trial

which the Constitution says the National power shall not permit any State to deny to any man? Or shall the Fourteenth Amendment be amended, by action of the States or judicial construction, so as to read, in effect, that

...

No State shall deprive any person of life, liberty or property without due process of law; provided, however, that nothing herein contained shall be construed to require or authorise the National judicial power to take any action to prevent a State from depriving a person of life or liberty without a fair trial, if the State shall have itself determined that a fair trial was had.

That is a query rather more far-reaching than the fate of your friend Jones-or Leo M. Frank.

CHAPTER XII

COMMUNAL PROPERTY AND RELIGIOUS ORDERS

In determining an action brought by the Order of St. Benedict of New Jersey against one Steinhauser,1 administrator of the estate of a deceased member of the Order, the Supreme Court, through Justice Hughes, drew clearly the distinction between ecclesiastical requirements and civil rights and laid down a broad doctrine as to the lawfulness of communal agreements such as those on which have been based a considerable number of co-operative communities, in the United States and abroad.

The complainant in the case was The Order of St. Benedict of New Jersey, a corporation of that State. This Order was a monastic brotherhood, established at Subacio, Italy, by St. Benedict in the early part of the sixth century. It was brought to America in 1846. One of the distinctive features of the Order is the obedience of its members to what is known as "The Rule of St. Benedict," a collection of mandates enjoining obedience, stability, chastity and poverty. In New Jersey the brotherhood was incorporated, in 1868, by special act 1234 U. S. Reports, page 640.

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