tending to mislead and it was clearly made to appear that the goods were his own and not those of the registrant. This is not to say that, in this view, the case becomes one simply of unfair competition, as that category has been defined in the law; for, whatever analogy may exist with respect to the scope of protection in this class of cases, still the right to be protected against an unwarranted use of the registered mark has been made a statutory right, and the courts of the United States have been vested with jurisdiction of suits for infringement, regardless of diversity of citizenship. Moreover, in view of this statutory right, it could not be considered necessary that the complainant in order to establish infringement should show wrongful intent in fact on the part of the defendant, or facts justifying the inference of such an intent. Having duly registered under the act, the complainant would be entitled to protection against any infringing use; but, in determining the extent of the right which the statute secures and what may be said to constitute an infringing use, regard must be had, as has been said, to the nature of the mark and its secondary, as distinguished from its primary, significance.

The distinction between permissible and prohibited uses may be a difficult one to draw in particular cases but it must be drawn in order to give effect to the act of Congress. That the distinction may readily be observed in practice is apparent. In this case, for instance, if the defendants had so chosen, they could have adopted a distinct mark of their own, which

would have served to designate their inks and completely to distinguish them from those of the complainant. It was not necessary that, in exercising the right to use their own name in trade, they should imitate the mark which the complainant used, and was entitled to use under the statute, as a designation of its wares; or that they should use the name in question upon their labels without unmistakably differentiating their goods from those which the complainant manufactured and sold.

Justice Hughes' outlook upon business problems would seem to be four-square with his declaration of 1908:

It is the function of law to define and punish wrong-doing, and not to throttle business. In the fields of industrial activity the need is that trade should be fair; that unjust discriminations and illegal allowances giving preferential access to markets should be prevented; that coercive combinations and improper practices to stifle competition should be dealt with regardless of individuals; but that honest industry, obtaining success upon its merits, denying no just opportunity to its competitors, should not be put under prohibitions which mingle the innocent and the guilty in a common condemnation.

The line of progress lies not in arbitrary action but in securing suitable publicity and supervision, and by accurate definition of wrongs and the infliction of proper punishment. The processes of justice may be slower and more

laborious; but if we desert the lines of soberness and fair play to get quick results through arbitrary interferences with trade, we shall find that such short cuts lead only to disaster.

CHAPTER XI

THE CASE OF LEO M. Frank and a puzzling qUES

TION OF NATIONAL RESPONSIBILITY

OCCASIONALLY there comes to that august chamber in the Capitol a cause on fire with the heat of racial or social controversy-a cause in which men's deepest feelings have been aroused, public opinion has been sharply aligned, and elemental forces of prejudice and passion have entered an atmosphere where should prevail only impersonal arbitrament under law. At such a time and in such a cause, it becomes one of the great stabilising prerogatives of our revered tribunal to restore to the final determination of the case that perfect fairness, that assurance of freedom from outside influence, and that deep regard for the substance of right and the fundamentals of fair trial, which are the heritage of Anglo-Saxon jurisprudence and the high privilege of every person accused of crime in an American State. In the impressive presence of the Nation's Court and in the contemplation of all it has typified in the imperishable traditions of the Republic, the voices of tumult and antagonism are stilled, and the rancour of the city street and countryside gives way

to the reasoned impartiality of a law-governed Court. Passion and prejudice may have mightily muddled the facts and the issues; public opinion may have found itself unable to see truly or think clearly, in judging of the merits of the bitter controversy; yet amid such a setting of the cause before it, the Supreme Court performs one of its most valuable functions as an expert interpreter and aid of the ultimate consensus of public opinion, through a clear and patient statement of the facts, a fair demarcation of the real issues, and a resolute re-formulation of the applicable essentials.

Such a controversy was presented by the appeal to the Supreme Court from the refusal of the United States District Court for the Northern District of Georgia to grant or hear and try the writ of habeas corpus for which application was made in behalf of Leo M. Frank, a former resident of New York City, who had been convicted in the Georgia State Courts of the murder of a girl of tender years, employed in an Atlanta pencil factory, of which he was superintendent. The resources of appeal and motions for a new trial had been exhausted in behalf of the accused, so far as the State Courts were concerned, and the regularity of the proceedings incident to his trial and conviction had been in all respects sustained. The Supreme Court of the United States was not unanimous in its approval of the action of the United

States District Judge, in refusing the application for the writ without the taking of testimony to ascertain the truth or falsity of the serious allegations of the petition; Justice Holmes and Justice Hughes were in fact constrained to dissent from the prevailing view; but no one can read or re-read the majority and minority opinions in this case without gaining a higher respect for the Court which DeTocqueville said, eighty-one years ago, was "at the head of all known tribunals."

The issue before the Supreme Court was not whether Frank was innocent or guilty of murder, or whether he should be sentenced to death or set free. No one denied that these matters were to be decided, in all respects, by the State Courts of Georgia and under its laws. The issue before the Supreme Court was not whether incidents of outside influence and manifestations of prevalent hostility to the accused, had in fact brought about his conviction under circumstances denying the fundamentals of a fair trial. The United States District Judge had taken no proof to determine the truth or falsity of these allegations, and the Supreme Court, on the appeal from his refusal of the writ, was at least in no better position to judge of the facts on that issue. The question was not at all one of racial hostility to Frank in Georgia, if there was such hostility, or of racial interference in behalf of Frank, if there had been such interFrank vs. Mangum (237 U. 8. Reports, page 309).