# Benton v. Maryland (395 U.S. 784)/Concurrence White

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion White
* Dissenting Opinion Harlan
United States Supreme Court
395 U.S. 784
John Dalmer BENTON, Petitioner, v. State of MARYLAND.
Argued: March 24, 1969. --- Decided: June 23, 1969
Mr. Justice WHITE, concurring.
While I agree with the Court's extension of the prohibition against double jeopardy to the States, and with the Court's conclusion that the concurrent sentence rule constitutes no jurisdictional bar, additional comment on the wisdom and effects of applying a concurrent sentence rule seems appropriate.
In a time of increasingly congested judicial dockets, often requiring long delays before trial and upon appeal, judicial resources have become scarce. Where a man has been convicted on several counts and sentenced concurrently upon each, and where judicial review of one count sustains its validity, the need for review of the other counts is not a pressing one since, regardless of the outcome, the prisoner will remain in jail for the same length of time under the count upheld. Rather than permit other cases to languish while careful review of these redundant counts is carried to its futile conclusion, judicial resources might be better employed by moving on to more pressing business. This is not a rule of convenience to the judge, but rather of fairness to other litigants.
This is not to say, however, that the fact of conviction under the unreviewed counts could never be of importance to the prisoner. After his release it is possible they might be used against him in a recidivism prosecution, or used to impeach his testimony in a trial for another offense, to pick two obvious examples. Nevertheless, the unreviewed counts are, by hypothesis, not of immediate importance to his confinement, and our experience gives us no indication that they are frequently of such importance later that the concurrent sentence rule should not be applied.
The unreviewed count is often one which, but for the concurrent sentence rule, the prisoner would have a right to challenge, either directly or on collateral attack. Arguably, to deny him that right when another man, convicted after a separate trial on each count, or sentenced consecutively, could not be denied that right under the applicable state or federal law, raises an equal protection question. But clearly so long as the denied review is of no significance to the prisoner the denial of equal protection is not invidious but only theoretical.
But should a situation arise in which the convict can demonstrate that the unreviewed count is being used against him, so as to work some harm to him additional to that stemming from the reviewed count, his grievance becomes real. At that point it may be that the unreviewed count may not be used against him, unless it is determined that the lack of earlier review can be cured by then supplying the convict the review to which he would earlier have been entitled but for his concurrent sentence on another count. For myself, postponed review, a question which the Court reserves (ante, at 791, n. 7), presents no insuperable difficulties. Appellate review is always conducted on a cold record, and collateral proceedings frequently deal with a stale record and stale facts. There is nothing inherently unfair in permitting the record to become colder while it is irrelevant to any human need, and other litigants' demands r e more pressing. Whether reversal on such a record, after delayed review, would permit retrial or a hearing on a claim involving for example, a coerced confession, is yet a further question which there is no present need to address. Should a satisfactory hearing or retrial prove impossible this would be an unfortunate byproduct of an initially crowded docket.
For the foregoing reasons, I agree with the Court that the concurrent sentence rule, while not of jurisdictional dimensions, should be preserved as a matter of proper judicial administration both on direct appeal and collateral attack, although at least in theory it raises a number of questions concerning the subsequent effects of the unreviewed counts. It may be that where it can be reliably predicted in a particular case that each count would entail concrete prejudicial consequences at a later date, the appellate court at the time of initial review would prefer to deal with all counts rather than to apply the concurrent sentence rule.
Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
One of the bedrock rules that has governed, and should continue to govern, the adjudicative processes of this Court is that the decision of constitutional questions in the disposition of cases should be avoided whenever fairly possible. Today the Court turns its back on that sound principle by refusing, for the flimsiest of reasons, to apply the 'concurrent sentence doctrine' so as not to be required to decide the far-reaching question whether the Double Jeopardy Clause of the Fifth Amendment is 'incorporated' into the Due Process Clause of the Fourteenth, thereby making the former applicable lock, stock, and barrel to the States. Indeed, it is quite manifest that the Court has actually been at pains to 'reach out' to decide that very important constitutional issue.
I consider that the concurrent sentence doctrine is applicable here, and that dismissal of the writ is accordingly called for. Despite that I feel constrained also to express my views on the merits because of what I conceive to be the importance of the constitutional approach at stake.
The Court decides, and I agree, that petitioner's larceny conviction is not moot, and that the concurrent sentence doctrine is not a jurisdictional bar to entertainment of challenges to multiple convictions, so long as the convictions sought to be reviewed are not moot. However, I would also emphasize, in agreement with the position of the Government as amicus curiae, that the concurrent sentence rule does have continuing vitality as an element of judicial discretion, and that appellate courts may decline to review a conviction carrying a concurrent sentence when another 'concurrent' conviction has been reviewed and found valid and the unreviewed conviction foreseeably will have no significant adverse consequences for the appellant. As the Solicitor General has pointed out, the concurrent sentence doctrine plays a significant role in conserving the time and energy of appellate courts. To require that these already overworked courts invariably review in full detail each of several convictions carrying concurrent sentences seems to me senselessly doctrinaire.
As has been noted, the concurrent sentence doctrine is applicable only if there exists a valid concurrent conviction. In thi instance, petitioner's double jeopardy argument is directed to his larceny conviction, but he claims that the concurrent sentence doctrine is no impediment to reaching that question because his concurrent, and otherwise valid, burglary conviction was tainted by having been tried together with the larceny count. It is therefore necessary to consider whether this claim of taint has merit.
The Court finds that resolution of the taint issue is likely to involve such difficult points of Maryland law as to make a remand to the Maryland courts the soundest course. See ante, at 797-798. However, my examination of the question convinces me that the pertinent Maryland law is quite elementary. And, unlike the Court, I am not deterred by the prospect of having to 'examine * * * in detail,' ante, at 798, the 42-page record of petitioner's second trial.
I conclude that there was no real possibility of taint. Burglary in Maryland consists of breaking and entering any dwelling house in the nighttime with intent to steal, take, or carry away the personal goods of another. See Md.Code Ann., Art. 27, § 30(a) (1967). Larceny in Maryland is a common-law crime, consisting of the taking and carrying away of the personal property of another with intent to deprive the owner of the property permanently. See e.g., Fletcher v. State, 231 Md. 190, 189 A.2d 641 (1963). Evidence was introduced at petitioner's second trial to show that he not only entered a locked house at night but also made off with several household appliances. The latter evidence was, of course, pertinent to the larceny count. However, it was also plainly relevant to the burglary count, since it tended to show intent to steal.
Petitioner bases his taint argument primarily on the proposition that he was entitled to have the evidence concerning the missing appliances excluded from his second trial under the doctrine of 'collateral estoppel,' he having been acquitted of larceny at the first trial. However, even if it is assumed that the conviction on the larceny count was bad on double jeopardy or due process grounds and that the principle of collateral estoppel has some application to state criminal trials through the Due Process Clause of the Fourteenth Amendment, I think that the doctrine would not prevent admission of the evidence on the issue of burglary. The principle of collateral estoppel makes conclusive, in collateral proceedings, only those matters which were 'actually litigated and determined in the original action * * *.' Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195 (1877). The Maryland Constitution provides:
'In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.' Md.Const., Art. 15, § 5.
Hence, petitioner's acquittal of larceny at his first trial may have rested solely upon that jury's unique view of the law concerning that offense, and cannot be taken as having necessarily 'determined' any particular question of fact.
It follows from what has been said in this section that there can be no estoppel effect in a collateral proceeding, such as petitioner's second trial for burglary, and that petitioner's taint argument must fail.
Since petitioner's second burglary conviction was not tainted by his simultaneous trial for larceny, it is necessary to consider whether the concurrent sentence doctrine is inapplicable for the other possible reason: that petitioner foreseeably will suffer significant adverse consequences on account of his larceny conviction.
No such consequences can reasonably be predicted. The Court itself notes that only a 'few States' would allow petitioner's larceny conviction to be used against him for purposes of sentencing as a habitual offender, and concedes that 'this possibility may well be a remote one.' Ante, at 790-791. When it is recalled that petitioner had been convicted of three felonies even prior to his present burglary conviction, this possibility is reduced to the vanishing point.
There remain the possibilities that petitioner's larceny conviction might be considered generally by a judge if and when petitioner is sentenced following some future conviction, and that the conviction might be used to impeach him in future judicial proceedings. In the circumstances of this case, these potential consequences are plainly insignificant. Petitioner's burglary and larceny convictions were based upon the very same series of acts on his part. This fact could readily be brought to the attention either of a sentencing judge or of a trier of fact before whom petitioner was sought to be impeached. Predictably, knowledge of the identical origin of the two convictions would reduce the extra impact of the larceny conviction to negligible proportions. Thus, it would be difficult to imagine a case in which a 'concurrent' conviction would be likely to entail fewer adverse consequences.
The Court nonetheless holds that '(b)ecause of the special circumstances in this case' it will not apply the concurrent sentence doctrine, and that it is unnecessary even to decide whether the doctrine has 'continuing validity, even as a rule of convenience.' See ante, at 792. One of the 'special circumstances' cited by the Court is the existence of the 'taint' issue, which the Court finds it desirable to remand to the state courts. As has been noted, I can perceive no difficulties which would justify a remand.
The second of the 'special circumstances' relied on by the Court is that 'in this case the (state courts) decided not to apply the concurrent sentence rule' and reached the 'double jeopardy' issue themselves. See ante, at 792. The Court concludes that '(s)ince (the Maryland courts) decided this federal constitutional question, we see no reason why we should not do so as well.' See ante, at 792-793. This reasoning baffles me. In determining whether or not to reach a constitutional issue the decision of which is not absolutely necessary to the disposition of a case, this Court has long been guided by the rule that '(w)here a case * * * can be decided without reference to questions arising under the Federal Constitution that course is usually pursued and is not departed from without important reasons.' Silver v. Louisville & N.R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (10 9); see Ashwander v. TVA, 297 U.S. 288, 345, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). In deciding whether such 'important reasons' exist, this Court has never regarded itself as bound to reach the constitutional issue merely because the court below did so, and has often declined to pass upon constitutional questions even though fully canvassed by the lower court. On some of these occasions, the Court has relied in justification upon the concurrent sentence doctrine.
Since I cannot believe that the Court wishes as a general matter to abandon the salutary and well-established principle of declining to rule on constitutional questions in advance of necessity, and since I find the 'taint' issue entirely free of the complexities which the Court claims to perceive, I cannot help but conclude that the real reason for reaching the 'double jeopardy' issue in this case is the Court's eagerness to see that provision 'incorporated' into the Fourteenth Amendment and thus made applicable against the States.
As has been shown, this case satisfies both preconditions to application of the concurrent sentence doctrine. Reliance upon that doctrine would enable the Court to avoid decision of a substantial constitutional question. Accordingly, I would apply the concurrent sentence rule and decline to review petitioner's larceny conviction. Since the case was brought here on a writ of certiorari limited to the 'double jeopardy' question, decision of which would affect only the larceny conviction, I would dismiss the writ as improvidently granted.
Having concluded that the writ should be dismissed, I would ordinarily not go further. However, as indicated at the outset, I felt impelled to continue with some observations respecting what can only be regarded as a complete overruling of one of this Court's truly great decisions, and with an expression of my views as to how petitioner's claim respecting his retrial for larceny should fare under the traditional due process approach.
I would hold, in accordance with Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), that the Due Process Clause of the Fourteenth Amendment does not take over the Double Jeopardy Clause of the Fifth, as such. Today Palko becomes another casualty in the so far unchecked march toward 'incorporating' much, if not all, of the Federal Bill of Rights into the Due Process Clause. This march began, with a Court majority, in 1961 when Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was decided and, before the present decision, found its last stopping point in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), decided at the end of last Term. I have at each step in the march expressed my oposition, see, e.g., my opinions in Mapp v. Ohio, supra, at 672, 81 S.Ct., at 1700 (dissenting); Ker v. California, 374 U.S. 23, 44, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 (1963) (concurring in result); Malloy v. Hogan, 378 U.S. 1, 14, 84 S.Ct. 1489, 1497, 12 L.Ed.2d 653 (1964) (dissenting); Pointer v. Texas, 380 U.S. 400, 408, 85 S.Ct. 1065, 1070, 13 L.Ed.2d 923 (1965) (concurring in result); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965) (concurring); Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967) (concurring in result); and Duncan v. Louisiana, supra, at 171 88 S.Ct. 1444 (dissenting); more particularly in the Duncan case I undertook to show that the 'selective incorporation' doctrine finds no support either in history or in reason. Under the pressures of the closing days of the Term, I am content to rest on what I have written in prior opinions, save to raise my voice again in protest against a doctrine which so subtly, yet profoundly, is eroding many of the basics of our federal system.
More broadly, that this Court should have apparently become so impervious to the pervasive wisdom of the constitutional philosophy embodied in Palko, and that it should have felt itself able to attribute to the perceptive and timeless words of Mr. Justice Cardozo nothing more than a 'watering down' of constitutional rights, are indeed revealing symbols of the extent to which we are weighing anchors from the fundamentals of our constitutional system.
Finally, how should the validity of petitioner's larceny conviction be judged under Palko, that is, under due process standards?
A brief recapitulation of the facts first seems advisable. Petitioner was indicted and tried simultaneously for burglary and larceny. He was acquitted of larceny but convicted of burglary. Petitioner appealed, and the Maryland courts remanded in light of earlier Maryland decisions holding invalid a provision of the Maryland Constitution requiring that grand and petit jurors declare their belief in God. Petitioner was given the option either of accepting the result of his trial or of demanding reindictment and retrial. He chose to attack the indictment, was re-indicted and retried for both larceny and burglary, and was convicted of both offenses.
The principle that an accused should not be tried twice for the same offense is deeply rooted in Anglo-American law. In this country, it is presently embodied in the Fifth Amendment to the Federal Constitution and in the constitution or common law of every State. The Palko Court found it unnecessary to decide '(w)hat the answer would have to be if the state were permitted after a trial free from error to try the accused over again or to bring another case against him * * *.' 302 U.S., at 328, 58 S.Ct., at 153. However, I have no hesitation in stating that it would be a denial of due process at least for a State to retry one previously acquitted following an errorless trial. The idea that the State's interest in convicting wrongdoers is entirely satisfied by one fair trial ending in an acquittal, and that the accused's interest in repose must thereafter be given precedence, is indubitably a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id., at 325, 58 S.Ct., at 152.
The situation in this case is not quite so simple. Had petitioner not appealed his burglary o nviction, the State would surely have allowed him to rest on his larceny acquittal and merely serve out his burglary sentence. However, the State argues that the burglary and larceny counts were originally contained in a single indictment; that upon petitioner's appeal the indictment was declared totally void and the trial court found to have lacked jurisdiction; and that the State could then proceed as if there had never been a previous indictment or trial.
The State's contention that petitioner's first trial was a complete nullity because the trial court 'lacked jurisdiction' is unconvincing. As has been noted, it appears that the State would willingly have been petitioner serve out the burglary sentence imposed in consequence of that trial. Under state procedure, petitioner could avail himself of the 'jurisdictional' defect only by appealing his conviction. The crucial issue, therefore, is what legitimate interest had the State in compelling petitioner to jeopardize his larceny acquittal as a condition of appealing his burglary conviction?
I can perceive no legitimate state interest. Certainly it is the purest fiction to say that by appealing his burglary conviction petitioner 'waived' his right not to be retried for larceny or 'consented' to retrial on that charge. The notion of 'waiver' was first employed in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), to justify retrial of an accused for the same offense following reversal of a conviction on appeal. The 'waiver' doctrine was more fully articulated in Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905), where it was held that retrial and conviction for murder following a successful appeal from a manslaughter conviction did not violate the Double Jeopardy Clause. Trono apparently dictated the result in Brantley v. Georgia, 217 U.S. 284, 30 S.Ct. 514, 54 L.Ed. 768 (1910), in which the Court held in a brief per curiam, without citing any authority, that a Georgia retrial and conviction for murder following the reversal on appeal of an earlier manslaughter conviction did not amount to 'a case of twice in jeopardy under any view of the Constitution of the United States.' Id., at 285, 30 S.Ct., at 515. We have since recognized that the 'waiver' rationale is a 'conceptual abstraction' which obscures rather than illuminates the underlying clash of societal and individual interests. See United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). Accordingly, 1 do not think that the reasoning in Trono or the apparent holding in Brantley, insofar as they would require affirmance of petitioner's larceny conviction, can any longer be regarded as good law.
Nor did the State in the present case have the sorts of interests which have been held to justify retrial for the same offense after a conviction has been reversed on appeal by the accused and in the more unusual case when an acquittal has been set aside following an appeal by the State. When the accused has obtained a reversal on appeal, the societal interest in convicting the guilty has been deemed too weighty to permit every such accused to be 'granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' United States v. Tateo, supra, at 466, 84 S.Ct., at 1589. The rationale for allowing the State to appeal an acquittal has been that the State, like the accused, is entitled to assure itself of a trial 'free from the corrosio of substantial legal error' which might have produced an adverse verdict. See Palko v. Connecticut, supra, at 328, 58 S.Ct., at 153.
In the present case, the State did not appeal, and the defect in the composition of the grand jury could not have affected petitioner's subsequent acquittal at trial. Society's legitimate interest in punishing wrongdoers could have been fully vindicated by retrying petitioner on the burglary count alone, that being the offense of which he was previously convicted. The State had no more interest in compelling petitioner to stand trial again for larceny, of which he had been acquitted, than in retrying any other person declared innocent after an error-free trial. He retrial on the larceny count therefore, in my opinion, denied due process, and on that ground reversal would be called for under Palko.

## Notes

* ↑ See Memorandum for the United States as Amicus Curiae 20 23. Counsel for the Government estimated during oral argument that the concurrent sentence doctrine is employed in the disposition of about 10% of all federal criminal appeals.
* ↑ See, e.g., Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv.L.Rev. 542 (1969).
* ↑ Like the Court, see ante, at 791, n. 7, I express no view on the question whether collateral consequences may constitutionally be imposed on account of a conviction which was denied review on direct appeal because of the concurrent sentence doctrine.
* ↑ This Court said in dictum in Hoag v. New Jersey, 356 U.S. 464, 471, 78 S.Ct. 829, 834, 2 L.Ed.2d 913 (1958): 'Despite its wide employment, we entertain grave doubts whether collateral estoppel can be regarded as a constitutional requirement. Certainly, this Court has never so held.' See also id., at 470 471, 78 S.Ct., at 834; Sealfon v. United States, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180 (1948); United States v. Oppenheimer, 242 U.S. 85, 88, 37 S.Ct. 68, 69, 61 L.Ed. 161 (1916).
* ↑ See also Restatement, Judgments § 68(1).
* ↑ The Court also suggests that the concurrent sentence doctrine should not be applied for the additional reason that the eventual length of petitioner's burglary sentene is 'still in some doubt.' See ante, at 793. Petitioner received a 10-year sentence following his first burglary conviction and a 15-year sentence after his second conviction. The latter sentence was subsequently vacated and resentencing ordered by a federal district court. See Benton v. Copinger, 291 F.Supp. 141 (1968). The State has appealed. Whatever the outcome of that appeal, I consider that the probability of petitioner's burglary sentence being reduced below five years, so as to make the concurrent sentence doctrine inoperative, is manifestly negligible.
* ↑ Cf., e.g., Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 1898, 20 L.Ed.2d 917 (1968).
* ↑ See Supplementary Brief for Respondent 20, n. 6.
* ↑ So far as I have been able to discover, there is no State in which petitioner's larceny conviction could have habitual offender consequences.
* ↑ See, e.g., Cichos v. Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966); Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964); Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964); Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Rice v. Sioux City Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955).
* ↑ See, e.g., United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).
* ↑ In the interest of strict accuracy, it should be pointed out that Mr. Justice STEWART cannot and does not fully join in the above sentence of this opinion. He joined my dissenting opinion in Duncan v. Louisiana, supra, but wrote a separate memorandum in Mapp v. Ohio, supra, at 672, 81 S.Ct. at 1700, joined the opinion of Mr. Justice Clark in Ker v. California, supra; joined Mr. Justice White's dissenting opinion in Malloy v. Hogan, supra, at 33, 84 S.Ct., at 1506; wrote an opinion concurring in the result in Pointer v. Texas, supra, at 409, 85 S.Ct., at 1070; wrote a dissenting opinion in Griffin v. California, supra, at 617, 85 S.Ct., at 1234; and separately concurred in the result in Klopfer v. North Carolina, supra, at 226, 87 S.Ct., at 995.
* ↑ The 'double jeopardy' concept has been an established part of the English common law since at least 1700, and was contained in the constitutions or common law of many American jurisdictions prior to 1787. See J. Sigler, Double Jeopardy 1-37 (1969); Bartkus v. Illinois, 359 U.S. 121, 151-155, 79 S.Ct. 676, 695-697, 3 L.Ed.2d 684 (1959) (Black, J., dissenting).
* ↑ See Sigler, supra, at 77-117.
* ↑ In the federal realm, the Trono decision was, of course, limited to its 'peculiar factual setting' by Green v. United States, 355 U.S. 184, 197, 78 S.Ct. 221, 228, 229, 2 L.Ed.2d 199 (1957), in which I joined the dissenting opinion of Mr. Justice Frankfurter. Id., at 198. Mr. Justice Stewart was not a member of the Court of the time Green was decided.
* ↑ Trono was the only federal decision cited by the State of Georgia in its brief in Brantley.
* ↑ For more detailed analyses of these interests, see generally Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1 (1960); Van Alstyne, In Gideon's Wake: Harsher Penalties and the 'Successful' Criminal Appellant, 74 Yale L.J. 606 (1965); Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965); Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L.Rev. 1272 (1964).
* ↑ However, in the federal system it has been held that the Government may not appeal from an acquittal without placing the accused 'a second time in jeopardy for the same offense.' Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 806, 49 L.Ed. 114 (1904). See also id., at 134-137, 24 S.Ct., at 797, 807 (Holmes, J., dissenting).
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