Warren E. Burger: 71-1459. Mr. Lewis.
Austin W. Lewis: Mr. Chief Justice and may it please the Court. With the Court’s indulgence and although it will require some repetition, I would like to devote my remaining time here today to a step-by-step analysis of the four legal concepts that I consider are applicable in this case. Hoping that this will place this unique civil right -- civil law problem in proper perspective for the Court. Initially thought, I will say in the absence of additional questions from the Court, I will lay aside any further discussion of the point that state law should be applied here over in a federal law. I believe this is fully covered in the briefs and consider that the Leiter Minerals’ opinion of this Court as well as the other cases cited in the respondent’s brief removes us as a serious issue in the case and while certainly no concessions have been made by the Solicitor General, I had a feeling from the Government’s reply brief and the argument made yesterday that this does not -- will not disturb the Government too seriously. Now, the four items to be considered in my opinion are these: First, a brief discussion of the legal status of mineral servitude in the State of Louisiana; second, a consideration of the three types of mineral servitudes that exist in that State; then third, the legal status of a case of contractual prescription, which on question is involved in the present case; and fourth and finally, the precise nature of the so-called reversionary interests of the United States in a case of contractual prescription, and whether any of the constitutional questions raised by the Government are applicable to this case. Now, on the first point, I will not devote a great deal of time to the basic mineral servitude. Its nature appeared to have been understood by the Court yesterday. Except, I would like to stress that in Louisiana, there can be no separate estate in minerals. No matter what form, the deed or reservation is placed and what language is used, only a servitude or easement is created which expires in 10 years, if not exercise by drilling. I might say that --
Potter Stewart: Is Louisiana unique among the States? Is the law of Louisiana unique among the States --
Austin W. Lewis: It is; it is.
Potter Stewart: -- in holding that there cannot be any property right and --
Austin W. Lewis: I know of no other States that has --
Potter Stewart: -- in minerals as such?
Austin W. Lewis: -- has that rule. No, sir. It was based of course in our civil law concepts and no such --
Potter Stewart: But there is no other -- none of the other States that --
Austin W. Lewis: I am satisfied --
Potter Stewart: -- have borrowed the civil law --
Austin W. Lewis: We made some rather serious research on that which I am having problem too.
Potter Stewart: Do you think, it should --
William H. Rehnquist: In the consequence of not being a property interest is that it can’t be alienated or transferred? One can’t?
Austin W. Lewis: That’s just one evidence that it is not, Your Honor. I think the consequence we are dealing with here is that it involves only a remedial right, the prescription of limitation of 10 years, and therefore, can be valid and modified by subsequent act of the legislature. That is a precise following the case.
Warren E. Burger: I suppose you will come later to the question whether that can override the local Louisiana law, on this subject can override an explicit contract made between the state and the United States.
Austin W. Lewis: I certainly will, Your Honor. I think that’s the key issue in the case. Now, I will say that this strict rule of no separate estate and no mineral estate separate from the fee has met the test of many ingenious offers -- efforts to overcome it. Sales for 20 years, sales in perpetuity, probably the most interesting was to the sale purporting to transfer the fee title and the minerals to the land below a plain 500 feet below the surface. Although they were attempting to get -- avail both the title and the minerals but of course there are those that are simply servitude in disguise.
Harry A. Blackmun: Mr. Lewis.
Austin W. Lewis: Yes, sir.
Harry A. Blackmun: Is this a characteristic of the civil law generally? Well, there isn’t a civilian up here on the bench. So, I ask these rather basic questions.
Austin W. Lewis: Yes, sir. That is the concept that the fee cannot be divided into separate estates has cause the civil law in our Civil Code to evolve a system of charges and burdens upon the land. In other words, the servitude takes the place of a separate mineral estate but the courts firmly hold that such a servitude does not give the owner any title to the minerals in place. He simply possesses the right to go on the land and explore for and reduce those minerals to his possession.
Harry A. Blackmun: And this is true in France and other places with the civil law --
Austin W. Lewis: Yes, it is taken from the French law. But now while this servitude cannot be expanded or converted into a separate estate, it can be modified by contract in two ways. So as a result, we wind up in Louisiana with three types of servitudes and these, I might add, were painstakingly described by the Louisiana Supreme Court in the Leiter advisory opinion. Now, the first of these is a servitude for fix term of five, eight, ten years with no provisions whatever for extending that servitude. Now currently, this is a vested property right that the United States in this case would have a servitude that been on that category, because Act 315 could not have impaired that right. The second is the ordinary statutory servitude previously discussed which expires in 10 years unless exercised by the drilling of a well and obtaining a production. The third and the one that’s under consideration here is a servitude subject to contractual prescription. Now, there are two and only two requirements to establish such as a servitude: One is that when it is originally established, it must be of uncertain or indefinite duration; and second, it must provide for its conditional extinguishment in some way. Now, adjacent to that that is the fact that the servitude in this case mentioned a period of 10 years does not in anyway to track from it being a case of contractual servitude. Actually the law of Louisiana does that and had the period not been mentioned. We consider, if the Court pleases, that this category squarely fits the servitudes in the present case. They provide that if they were not exercised by drilling they would expire in 10 years. Of course, whether or not there would be drilling 10 years later, clearly it was uncertain and indefinite event. It could not be foreseen at the time. And of course as I said, that’s simply a re-expression of Louisiana law, because the servitude could not last for more than 10 years. And of course, it also clearly provided for its conditional extinguishment if a well is not drilled on or before the end of the 10-year period. Now the only the departure of these servitudes from the statutory type is the effect of the use of the servitude by the drilling of a well. A well, not completed as a producer under these servitudes, would not extend the servitude for full period of 10 years as would be the case and statutory interpretation, by the contract it would only extend it for 90 days. If they got production of course it would lasts as long as production lasts. But we submit, if the Court pleases, this limitation has nothing whatever to do with the designation and the classification of the initial servitude as being one of contractual prescription. That depends entirely on the terms relating to the 10-year period and the method by which it could be extended or extinguished at the end of that 10-year period. I think if I may refer the Court to Pages 12 and 13 of the respondent’s brief, you will find quotations from the Supreme Court’s advisory opinion on Leiter that say that's better than I can say it. For example, the last paragraph on Page 12 says this, “Most mineral servitudes are not established for a fix time. A servitude of indefinite duration is extinguished only when it is not exercised for a period of 10 years, precisely our case. Such a servitude, created by mineral reservation and the sale to the Government, would under Act 315 of 1940 be rendered imprescriptible and would never be lost by prescription provided it was in existence at the time the 1940 Act went into effect.” Now, the second quote on Page 13, “Nevertheless contracting parties are at liberty to establish a contractual period of prescription for the conditional extinguishment of the servitude through non-use provided that the period is 10 years or less.” Again, precisely our case. Now, if the Court please, I feel also greatly (Inaudible) in our assertion that this is a case of contractual servitude by the decisions of the two courts below. In the District Court, a train Louisiana jurist said this of the servitudes, “Clearly these servitudes present cases of contractual prescription.” In the Fifth Circuit with the panel containing one of our most distinguished Louisiana jurists, the Court quoted that language of approval and said, and of course as a result to that Act 315 makes imprescriptible this servitude. So, I think when these Louisiana juries reach as a conclusion without any problem whatever, it is for some benefit to our contention that we do have cases of contractual prescription. Now, we now turn to what the legal status of the case of contractual prescription is. The Louisiana Supreme Court said squarely that it is identical with that of the statutory prescription. Therefore, the Court in that connection to Page 30 of our brief where this was said by the Court, speaking of Act 315 of 1940, “The Act grows no distinction between statutory and contractual prescription and as we view the matter from the history of the Act, and the objects, and purposes for which it was adopted, it is manifest that the legislature intended the Act to be applicable to prescription whether established by statute or by contract. For prescription had not already accrued at the time that the Act became effective.” Now, if the Court please, the repeated argument of the Government, it is over and above Act 315, because it has a contract seems to ask to beg the question entirely. The question is, “What did that contract do?” And under the Supreme Court resolution to this thing, it clearly established the case of contractual prescription. The brief of the Government acknowledges that the law of contractual prescription was in existence when the servitudes were purchased. The Government is bound to know the law, it was charged with knowing the law, and certainly it was aware of the rule that if a contractual prescription was established, then it could be modified either lengthened or shortened as prescription applicable to it by subsequent Legislative Act. Now, this brings us to the final and decisive issue in the case in our view. With a clear case of contractual prescription bringing to vow the legal principles of applying to statutory prescription, what were the legal rights of United States with respect to its so-called reversionary interests when Act 315 of 1940 was adopted? Again, the state law is crystal clear on his point. Holding that since only a law prescription of limitation is involved. This law goes only to matters of remedy and does not form a part of the contract itself. And that therefore, the period of prescription maybe shortened or lengthened without impairing the obligations of the contract. This, of course, is because no vested rights were involved. In fact, we have a specific decision of our Louisiana Supreme Court cited on Page 35 of our brief where Act 315 was applied retrospectively to a reservation of mineral rights and a sale to the United States and was held to be constitutional under State Constitution. Now, the ground on all of this, if Your Honor please, is quite fundamental. It simply is based on the recognition that mentioned by Mr. Justice Stewart yesterday that the reversionary interests is not a vested right at all, but it is merely an inchoate hope or expectancy based on the laws of prescription or limitation which could be changed for by legslative Act. And I repeat again my statement yesterday, there is no resemblance whatever between this so-called reversionary interests. It really should be called a hope or expectancy and the common law state in reversion. There is simply no legal resemblance at all. Now, this Court has also refute to recognize that for a statute of limitation are involved which exist when a contract is executed, do not form a part of that contract. And therefore, they may be modified or even abrogated with respect to a pre-existing contract of Constitution. This case is cited on Page 32 of our brief. Now, for the first time in this case in its reply brief --
Warren E. Burger: How many of those cases Mr. Lewis engulfed contracts between two sovereigns, are they?
Austin W. Lewis: I don’t think they are, Your Honor. Let’s see. No, they all seem to be Ogden versus Saunders, Campbell versus Holt, Jeff O’Brien versus Williams. No, sir it could not be. Now, for the first time in this case, the Government in its reply brief received by me only over the weekend. In spite of those in reference to Mr. Reynolds’ part of pace in the ad. They apparently recognized a probability with application of Louisiana law and they attempt to analyze their rights under the law of Louisiana, under these contracts. That is done on Pages 2, 3, and 4 of their brief. Now, I must mention that I am somewhat troubled over the use on Page 3 of the brief of the old Louisiana decision of Federal Land Bank versus Mulhern and a quotation from that case which indicates that some of the principles I just announced here may not be correct. I think the Court should know that that concept was retracted by the Supreme Court in this very case on rehearing and it’s never been repeated since. It Simply has no place in our law.
Potter Stewart: What was your reference to what page of what brief?
Austin W. Lewis: That’s Page 2 of the reply brief of the Government. On Page 3, I am sorry.
Potter Stewart: Of the reply brief of the Government?
Austin W. Lewis: Of the Government, yes sir, about Federal Land Bank versus Mulhern.
William J. Brennan, Jr.: It was Mulhern on the rehearing, Mr. Lewis or this case on rehearing?
Austin W. Lewis: No, I said in Mulhern case on rehearing.
William J. Brennan, Jr.: Retracted that --
Austin W. Lewis: Retracted, it was not this particularly; it was retracted and said we’re going back to the common law concept which, I mean the civil law concept which I just described. Now as I said, the Government now is offering to the Court its analysis to the law of Louisiana and that is found in the first complete paragraph on page 4 of the reply brief and it says this, “Consequently, once the conveyance is involved in the present case were consummated, the United States by virtue of its undisputed ownership of the surface rights in the land in question had a paramount interest in the minerals below the surface subject only to the limited servitude stipulated in the reservations.” Now if the Court please, I’d like to lay aside beside with that conclusion. This quotation from the Supreme Court of Louisiana in the Leiter Minerals advisory opinion and I quote, “In this case, when property is conveyed and the mineral rights are reserved, the party reserving the minerals is vested with a real right, the right to go up on the land and produce the minerals. In such a case, the purchase of the land subject to this servitude does not acquire the mineral rights. As to the minerals, all the purchaser has acquired is the expectancy or hope that the mineral servitude will be extinguished by the 10-year prescription of non-use, and will not be extended or continued by use beyond this period, for the minerals had been reserved, the purchase of the land pays nothing for them and has no vested right in them.” Then quoting from a prior decision of the Supreme Court in Tennant versus Russell, the Court says this, “A right is vested when the right to enjoinment, present or prospective has become the property of some particular person or persons as a present interest. The right must be absolute, complete, and unconditional independent of a contingency, and a mere expectancy of future benefit. Or a contingent interest in property does not constitute a vested right.” So we say, if the Court please, if this concept of the Louisiana law is accepted by this Court and applied. We think that all of the constitutional issues raised by the United States contract, property, supremacy are dissolve in thin air because we are not dealing with any vested interest in this so-called reversionary interest of the Government.
Warren E. Burger: Mr. Lewis, to just to take into account your time, the Court will extend your time about five minutes in order to give you time to develop this contract matter.
Austin W. Lewis: Thank you very much. Now the reservation, if Your Honor please, is found on Page 180 of the Addendum of our brief. There are two of them but they are identical with Mr. Reynolds’ notice yesterday and that starts off by simply making the normal reservation that would be involved in the statutory prescription. Reserving the right to drill for and to produce into lay pipe lines and do all the necessary incidental things which rights will remain enforced for a period 10 years from the date of vesting title in United States. And as long thereafter as oil, gas, sulfur, or some other minerals produced in the land or so long thereafter as grantor shall conduct drilling or reworking operations thereon with no cessation of more than 60 consecutive days until production results. If production results, of course it remains in effect indefinite. Now, this language, Your Honor, the paragraph I just read, is identical with the law of statutory prescription with the same exemption that I noted earlier, that the drilling operations must be conducted as 60-day intervals to maintain the servitude, if they do not result in production. Otherwise, this is a straight tracking of the Louisiana law. And provided further, if in the said ten-year period of reservation, if not extended as here above provided or the termination of any extended period, the operation has not been that carried on the right to provide and so forth, shall terminate and complete fee title so thereby it become vested in United States. Then, I think there is an important royalty provision. If Your Honor please, this simply is saying that if this conditional extinguishment and it is fairly conditional because it depends on the will of the servitude on as to whether you drill or not drill occurs, then of course the mineral right is terminated. That of course would be true in the case of statutory prescription. So, we say that it's a single exception Your Honor, of the limitation just place on the drilling that there’s no difference between this contract reservation and one that would be made under the law of Louisiana.
William H. Rehnquist: Mr. Lewis.
Austin W. Lewis: Yes.
William H. Rehnquist: Why did the Legislature make Act 315 applicable only to the United States?
Austin W. Lewis: Well, Your Honor, if I am not sure you got my time too much that is a question I was dying to get into. The history of the saying is that this Act was passed primarily for the benefit of the United States. If -- I didn’t cite it in my brief but if the Court will refer to the original opinion of the District Court in the United States versus Nebo Oil Co., you will find the complete history of why it was adopted. United States was the largest purchaser of lands in Louisiana. It was having increase in trouble buying lands because the people did not want to sell and have their mineral rights possibly terminated in 10 years, and as a result of that, in order to facilitate its purchase of the land in Louisiana, this Act was adopted. Now, it’s a valid reason too because Louisiana is an oil rich state. It’s almost impossible to purchase lands at any price if the minerals are not reserve in tracks of in sizeable size.
Warren E. Burger: Well, why couldn’t that have been accomplished just as well as it had been made effective as to all future transactions?
Austin W. Lewis: Well, I assume it could have, Your Honor, but there we are adverting then to the question of, what was the right, the reversionary right gained by the United States. That did not so when they get them as apply retrospectively. But again, we are just at the point of that reversionary interest of the United States was such an interest that could be cut across by intervening statute.
Potter Stewart: The summary answer to Mr. Justice Rehnquist’s question is contained I think in the excerpts from the opinion of the Louisiana Supreme Court of the Leiter case which appear on Pages 37 and 38 of your brief.
Austin W. Lewis: Yes, that is right that --
Potter Stewart: Is that correct?
Austin W. Lewis: That is correct. I might add too in fact, to answer the question that Louisiana runs in the same problems and not too long after this statute was adopted, they adopted an identical statute making the same imprescriptibility rule with respect to all purchases made by any agency of the State of Louisiana.
William H. Rehnquist: So, Louisiana is in the same boat as the United States?
Austin W. Lewis: That’s right. Exactly. So we have --
Byron R. White: What about private parties?
Austin W. Lewis: Private parties, no. The only rule as to private parties is that prescription does not run against the matter and prescription is extended as the Court made rule thereon.
Byron R. White: Let’s assume, there’s been a general statute in Louisiana not maybe in just the United States but just announcing a general rule of non-prescriptibility to applying to everybody. Would it have applied to the United States?
Austin W. Lewis: Well, I assume so the Government would be purchasing this property in proprietor capacity.
Byron R. White: Well, why didn’t it apply to everybody?
Austin W. Lewis: Because the statute is limited to United States.
Byron R. White: Well, I understand that but how -- what was the reason for limiting it to the United States?
Austin W. Lewis: Well, I think Your Honor, and this Nebo discussion will bear this out, I believe. It was applied because United States was having a serious problem in its land acquisitions in Louisiana, and it was applied for as benefit not as a case of hostile discrimination as the Solicitor General has suggested.
Byron R. White: But it certainly has an impact on the United States?
Austin W. Lewis: It certainly does, but now where that impact --
Byron R. White: But to no other parties, no other parties?
Austin W. Lewis: For that outweighs the benefit the United States gain by its future acquisitions is --
Byron R. White: Well, what is the law? Can you just pick out United States to apply this rule to as --
Austin W. Lewis: We think so Your Honor.
Potter Stewart: United States as to Canada, what's your view?
Austin W. Lewis: Well, first of all we don’t think United States is a person; second and this is the basic concept that I am doing my outmost to get across, whether it was wisely done or equitably done, it did not deprive the United States in this case of contractual prescription of any vested contract right. Now, if it had no right to assert, we just don’t think any of the constitutional issues come into play.
Warren E. Burger: Well, if it isn’t an interest in realty as you suggest, then why doesn’t the Contract Clause govern?
Austin W. Lewis: I am not sure, I --
Warren E. Burger: You’ve argued strongly and very cogently that this contract be it no interest in realty.
Austin W. Lewis: That’s correct.
Warren E. Burger: So then, let’s say it’s just a contract, a contract between two parties in this case between United States --
Austin W. Lewis: But the contract whether there’s an interest in realty or just an interest, the Contract Clause in nominal pain only applies if you have some vested right as being impaired. Now Louisiana Court says, “This is not a vested right.”
Warren E. Burger: Not a vested right in terms of realty?
Byron R. White: Not a vested right period, Your Honor.
William J. Brennan, Jr.: Let me --
Warren E. Burger: And of course, I suppose that’s for the Contract Clause ultimately, isn’t it. I assume sir; yes, sir.
Byron R. White: Let’s assume at the time of United States acquired whatever interest it did acquire if any. The case law in Louisiana was contrary to what you say, it is not and it is clearly so. And then has the United States acquire its interest the case law in Louisiana change some typical -- they overruled prior decisions?
Austin W. Lewis: I I would have -- I would have difficulty with that.
Byron R. White: Now, it is the same as -- what?
Austin W. Lewis: I would have difficulty with that one to just give you a candid answer.
Byron R. White: With what it really was?
Austin W. Lewis: Yes.
Byron R. White: So, your case hinges on whether at the time United States required what I meant is that acquired, the law of Louisiana clearly was that whoever acquires that interest would have known that if it was subject -- whatever it read like -- whatever it read in the contract, it was subject to change?
Austin W. Lewis: Precisely, Your Honor.
Byron R. White: Under the -- by the legislature --
Austin W. Lewis: Precisely that -- well, question, the second. But all I can say is that we talked of that -- the question here is the law of limitation.
Byron R. White: It is just like United States in the deed that it took. If in that deed it took, it said, here you’ll have me set minerals in 10 years, unless the legislature passes the law that says, you will get them in 30 years. That’s a situation you're putting in the legislature before the 10 years is over passes the law that says you're interest is suppose to come for 30 years or its terminate.
Austin W. Lewis: Well, that would be true Your Honor, if you would add a qualification to your -- I mean a provision to a contract. All I'm saying if it last for 10 years unless it is extended by drilling for production. That’s what makes the case of contractual prescription. Now, I had conceded already an argument and I concede in brief --
Byron R. White: Yes, but doesn’t that have to appear clearly from the Louisiana law that whatever the United States acquired when it took its deed, that interest is subject to modification by a change of the law.
Austin W. Lewis: Well, I wouldn not think so Your Honor. The promise involved here is not --
Byron R. White: You do not claim that the Louisiana law at that time made it clear that --
Austin W. Lewis: Well, I thought you said the contract would have to make it clear. I misunderstood you.
Byron R. White: Oh! No.
Austin W. Lewis: Oh! Yes.
Byron R. White: But the --
Austin W. Lewis: But the law of Louisiana was clear that there was a legal classification of contractual prescription. The Government have missed that in its last brief when they bought that was the law of Louisiana.
Byron R. White: And the law is that -- in that case --
Austin W. Lewis: The contractual prescription is the same as statutory prescription. In statutory prescription the rule has been clear throughout the years that this is a matter of remedy based on the -- the remedy lies in the 10-year prescription, the Limitation Act, and it said that just simply does not form a part of the contract and this Court has said that in some five to six decisions thereon. It is the same as cause of action, precisely.
Warren E. Burger: Now for the -- under your theory of the case at any future time, can Louisiana go in and begin drilling operations and --
Austin W. Lewis: Well, the respondents in this case can.
Warren E. Burger: Respondents, I must say, yes.
Austin W. Lewis: Yes, sir; yes, certainly.
Warren E. Burger: Then that might have some impairment of the purpose for which the United States Government acquired it under the Migratory Game verdict, cout it not?
Austin W. Lewis: Your Honor, I respectfully but seriously quarrel with that. This Migratory Game Act provides specifically for the Secretary of Interior taking title subject to limitations, easements, everything else; provided they found that they did not impair the use of the refuge. Now, he found that in this case because --
Warren E. Burger: But he found that it wouldn’t impair it if it were a 10-year limitation.
Austin W. Lewis: Yes, but he had a way knowing that Your Honor. There may have been 100 wells drilled on for like minerals and it could have been going on for another 10 years. So he faced the situation, where he agreed to an easement of indefinite duration and clearly he must have found because the Act requires into -- that would not impair the use of the refuge.
Warren E. Burger: Now, the land company can drill for the next 100 years if they want to go, is that correct?
Austin W. Lewis: yes sir. If there are no further questions, I press appreciation for the additional time.
Warren E. Burger: Thank you Mr. Lewis. Mr. Reynolds we’ll extend your time five or six minutes if you think you need it.
William Bradford Reynolds: Thank you Mr. Chief Justice. Let me state that while we believe the determination here with respect to what the interest was that the United States acquired under these conveyances, it is a matter of federal law. I also want to point out that with respect to the --
Speaker: Could you stop. How do you (Inaudible) United States? The interest that you took a deed?
William Bradford Reynolds: We took a deed to acquire property --
Speaker: Yes, this is property and you are saying the federal law would govern what is it you acquired under that deed? That’s what you have said.
William Bradford Reynolds: That’s our position, Your Honor. That’s correct.
Speaker: You talked about yesterday.
William Bradford Reynolds: I don’t believe I said it.
Speaker: Well, how do you argue that? What's the authority you say when the United States acquires mineral property in a state that the land is actually is the meaning of it as determined by federal law?
William Bradford Reynolds: There are brief -- in our brief we've explain and the decisions of this Court uphold the proposition that when the United States is a party to the contract that the interest that the United States acquires under that contract as a party is a matter of federal law and not state law. And we believe that this is a contract where the United States is a party and entered into and as a matter of federal law to determine what interests the United States did acquire. Now, we further --
Speaker: As if the general company it’s like the United States was issuing the deed itself?
William Bradford Reynolds: Well, that--
Speaker: If the United States have issued a deed, the real property that it owns?
William Bradford Reynolds: That’s right. That would be a matter of federal laws to the interest but the -- if the United States is a party to a contract and into -- with the private party then the interest that the United States obtains under that contract is a matter of federal -- for federal law as oppose to state law.
Speaker: Well, what do you do with the Yazell case?
William Bradford Reynolds: Well, I think the Yazell case, I think is considerably different. It’s a quite a unique situation and there the United States went down into Texas it bargained and negotiated the contract on a basis of the Texas law. It was everybody’s understanding that the existing law in Texas at that time were controlled. And after the fact, the United States turned around and said Texas law was not going to apply. Now, here what we’re talking --
Potter Stewart: But the -- the basic point that your making is wholly contradicted by the Yazell case? That federal law controls it, that’s your point and this contract was written this -- when in reflecting the Louisiana law, was it not?
William Bradford Reynolds: Well, Your Honor let me see if I can state it this way. If -- when we went into Louisiana, if you look to Louisiana to see what interest were acquired. I think that the Louisiana supports law, supports the proposition that the United States when it acquired the property here, acquired a paramount interest to the minerals under the land that the only one who -- in Louisiana who can grant a servitude but it only goes to the use of the minerals. Only goes to exploration for the minerals. The only way Louisiana can do that is the landowner. He has the paramount interest in those minerals. Those minerals are not a separate estate they are part of the property and while --
Potter Stewart: As a matter of Louisiana law?
William Bradford Reynolds: As a matter of Louisiana law and while the counsel for Lake Misere stated that that the reversionary interest which is again the use that comes to the United States the end. Well, that cannot be sold separately. That can be sold along with the sale of the land. If I sell the land, if the United States sells a land then the reversionary interest is sold. Now, we believe that those interests --
Potter Stewart: Well, the new landowner -- the new landowner has the same expectancy as to renounce to, isn’t it?
William Bradford Reynolds: Well, he has the -- when it terminates, he has -- the use reverts to him, the exclusive use to explore for it.
Potter Stewart: Yes, because he is now the landowner.
William Bradford Reynolds: Because he is the landowner.
Potter Stewart: And if he owns a land, he owns the minerals under the land.
William Bradford Reynolds: Now, those -- that’s right. And the United States here own the land. Now, the bundle of interests or the bundle of rights that the United States got, if you want to look to Louisiana law, are as we -- as I stated are the property rights, the inseparable estate in the minerals and the reversionary interest to exclusive use to explore for it. Now, whether that bundle of rights is property under Article 4 is a federal law question. And whether the Government that the -- whether that can be disposed off is a matter for Congress.
Speaker: Well, that’s a little different point you just made?
Potter Stewart: Yes.
William Bradford Reynolds: Well, that I still submit that we take it is a matter of federal law as to what interests were acquired.
Speaker: But no you didn’t --
William Bradford Reynolds: But what I --
Speaker: For whatever the interest.
William Bradford Reynolds: What I'm saying is --
Speaker: I just want to know about the authority was for to Justice Stewart. What's the authority for some case would that -- what's the authority for saying that you look the federal law to the service? What is that you acquire to that deed?
William Bradford Reynolds: I believe that the Allegheny County has authority for that Your Honor as one decision. I also think that Ivanhoe Irrigation District v. McCracken is another authority for that the decisions by this Court.
Speaker: [Voice Overlap] Yazell?
William Bradford Reynolds: I think Yazell was a special situation. I think that the thing that bothered the Court about Yazell was that the Government was trying to remake on agreement with respect to existing law that they been relying on. Here, the Government -- even if you want to look to the Louisiana law, the existing Louisiana law, the Government is trying to assert the interest that it acquired under the existing law. And in Yazell we had a different situation where the Government had gone in and negotiated the particular rights under the state law and then it tried to say, we’ll now we are not going to look to state law.
Harry A. Blackmun: But I gather Mr. Reynolds, even if we don’t agree with this Act, even if we doubted you.
William Bradford Reynolds: Yes, Your Honor.
Harry A. Blackmun: Your second argument is that under the Property Clause in any event, it say whatever you got --
William Bradford Reynolds: Right and we --
Harry A. Blackmun: -- whatever it may be --
William Bradford Reynolds: That’s correct.
Harry A. Blackmun: It’s subject to the Property Clause.
William Bradford Reynolds: It’s subject to the Property Clause. Whatever label the state --
Harry A. Blackmun: And to that extent its federal law, whatever it may be.
William Bradford Reynolds: That’s correct, Your Honor.
Harry A. Blackmun: And then I gather. Do you have a third argument that -- I gather, do you want the Contact Clause or the Due Process Clause at any event the statute limited on Act application of 315 at least in --
William Bradford Reynolds: That the --
Harry A. Blackmun: -- United States?
William Bradford Reynolds: That the --
Harry A. Blackmun: With what?
William Bradford Reynolds: The application of -- or you mean Contract Clause argument? That the application of 315 applied retroactively does abrogate the expressed terms --
Harry A. Blackmun: Right.
William Bradford Reynolds: Of the contract?
Harry A. Blackmun: Now, that is our fourth argument that in any event, the application by 315, only the lands acquired by the United States?
William Bradford Reynolds: We believe that there is a Fourteenth Amendment argument there --
William J. Brennan, Jr.: It is still another argument that you don’t agree with Court of Appeals on the state law?
William Bradford Reynolds: And we also assert that we don’t agree with the Court of Appeals on state laws. That’s correct Your Honor.
William H. Rehnquist: On your Contract Clause argument, Mr. Reynolds, doesn’t the Court’s decision in Blaisdell in 290 U.S. upholding the Minnesota Mortgage Moratorium Act back in the 30’s, where the Minnesota had altered the time for exercise the equity of redemption, give you some trouble?
William Bradford Reynolds: I don’t believe so Your Honor. I think that the -- in fact that supports the proposition that we’re making here. There, the Court emphasize that the state was acting in a particular a special emergency with respect to housing shortages. That in meeting this emergency, the statute was a limited one addressed to the particular emergency that the extension of the sale’s rights after the foreclosure and the special exemption given under that Missouri’s statute was a very limited one only for a period of time. And they went and look at the purposes behind the statute to see whether or not in that particular situation you could impair the obligation of -- it was permissible to impair the obligation to contract. Now in this case, there are no reasons comparable to what we had in the Blaisdell to want a retroactive application of Louisiana Act 315 to impair the obligation of contracts. One of the principle reasons of the statute as we've been told this morning was purely perspective to make it easier for the United States to acquire lands in Louisiana in the future and what we’re talking about here is retroactive application to cutoff the interests that are already have been acquired which certainly doesn’t further the prospective purpose. So, I don’t think that we have any of the circumstances that we are involved in Blaisdell which the Court said because of those special unique service that it was permissible in that instance to impair the obligation.
Harry A. Blackmun: Now, what’s your view of the validity of the statute insofar as it is currently applicable and prospectively applicable, than applicable to your contemporaneous acquisitions of land in Louisiana under this Act?
William Bradford Reynolds: Your Honor, we are not challenging the perspective application of the statute. And I think that the certainly a good number of the arguments we are making here --
Harry A. Blackmun: Would not --
William Bradford Reynolds: -- be inapplicable with respect to perspective applications --
Harry A. Blackmun: Well, its --
William Bradford Reynolds: -- that they’re address to the retroactive applications.
Harry A. Blackmun: Unless you’ve, except that your basic argument, I suppose that federal law and its applicable, and I gather from your argument and as a matter of fact I also gather from previous opinions of this Court that that’s just the way of saying that law is anything the Government wants it to be in a particular case.
William Bradford Reynolds: I think that on a perspective law, I think that a federal law controls that we that some of the arguments we make it could be asserted. I --
Harry A. Blackmun: Against the contem --
William Bradford Reynolds: Again, I think that the --
Harry A. Blackmun: Against the contemporaneous validity of the statute, right?
William Bradford Reynolds: That’s right but I think there that’s much closer to Yazell and I believe that we would have a much more difficult time in that circumstance. Because the State of Louisiana has there declared that these contractual prescriptions are imprescriptible by statute. When we’re going down in Louisiana and we would be -- we would know that the existing law of the State at that time declared it. And I think that that’s a much more comparable situation to what you had in Yazell where the Government would go in and it would enter into the contract on the basis of that law and then, try to get out from under later. I don’t think we have that here.
Warren E. Burger: Going back to the Blaisdell case, the equity of redemption under the Mortgage Foreclosure Law was a matter of state statute giving one year for redemption as I recall it and the Mortgage Moratorium Act was in effect an extension of that one year.
William Bradford Reynolds: Of that one year.
Warren E. Burger: So that it wasn’t just a purely a matter of contract. It was a matter of statute.
William Bradford Reynolds: Well, that -- it was statute but the -- there was a question of whether you could -- whether the statute, the operation of the statute would.
Warren E. Burger: Well, the contract that had been made of course.
William Bradford Reynolds: Yes, Your Honor.
Warren E. Burger: In the light of that statute but I'm simply suggesting it wasn’t purely a matter of contract.
William Bradford Reynolds: Not purely.
Warren E. Burger: It was contract plus statute.
William Bradford Reynolds: Plus statute.
Warren E. Burger: Just as you have here I presumed, you have contract plus statute?
William Bradford Reynolds: Well, we have a subsequently inactive statute that the -- I guess it would be --
Warren E. Burger: No, subsequently inactive in both cases?
William Bradford Reynolds: But the statute there was directed, I think it’s a very definite emergency situations that just aren’t present here.
Warren E. Burger: Well, the difference is that in Blaisdell case, the contract has been made with reference to in a pre-existing statute. Here, it was a subsequent statute only.
William Bradford Reynolds: Well --
Warren E. Burger: In the Yazell case, you had before and after.
William Bradford Reynolds: Right. Here, that’s correct. If there no further questions I --
Warren E. Burger: I think not.
William Bradford Reynolds: I've already used more than my allotted time.
Warren E. Burger: Thank you Mr. Reynolds. Thank you Mr. Lewis. The case is submitted.


Earl Warren: Number 44, Billy Ferguson, Appellant, versus Georgia. Mr. Maxwell.
Paul James Maxwell: Chief Justice Warren, this Honorable Court pleases. This is an appeal from the Supreme Court of the State of Georgia. Billy Ferguson, the appellant in this case, a 19-year-old boy who is arrested without a warrant in July the 17th, 1958 at Douglasville, Georgia. He was immediately taken to the jail and locked up, where he was questioned for approximately seven hours by about five or six policemen, deputy sheriffs and Georgia Bureau of Investigation officers. All of whom refused to take this boy before committing magistrate on the Georgia law to inform amicus right to have counsel. And after being confined in jail, he was then being questioned. He was forced to take a paraffin test. He was finally and mentally coerced into making a confession.
William O. Douglas: Would you speak up a little bit careful? What kind of a test was he --
Paul James Maxwell: Paraffin test, Your Honor. Paraffin test.
William O. Douglas: But could you describe what -- what the paraffin test is?
Paul James Maxwell: Paraffin test, Your Honor, is where they put wax, as I understand it, on your hand to see whether you have fired a gun or not, to see if you had recently fired a pistol or a gun. He was indicted by the grand jury on September the 15th, 1958 which was approximately two months after he was arrested. He was tried on September the 23rd, 1958 and found guilty and sentenced to death by electrocution. The Supreme Court of Georgia affirmed the lower court. Now, this Honorable Court pleases, we contend that this appellant has been denied his constitutional rights before his trial, during his trial and after his trial. He was not given we contend a fair impartial and legal trial. Now, if this Court pleases, Georgia has to say the very least a unique and a distinctive law which is called Section 38-415 in which will be found set out on page 3 of the appellant's brief in which I would like at this time to read. In all criminal trials, the prisoner shall have the right to make to the court jury just such statements on the case as he may deem improper in his defense. It shall not be under oath and shall have such force only as a jury who may think right to give it. They may believe in preference to the sworn and testimony in the case. The prisoner shall not be compelled to answer any questions on cross-examination should he think proper to decline to answer. Now, Georgia Supreme Court has repeatedly held that the defense lawyer has no right to ask or assist the defendant in any way when he is on the stand. It is our contention, if this Honorable Court pleases, that this Code Section 38-415, as construed by the Supreme Court of Georgia, is invalid under both the Due Process and the Equal Protection Clause of the Federal Constitution. Now, I would like to say right here, if the Court pleases, that when I first moved to Georgia about eight years ago, I was indeed surprised that this unique law but I was more surprised that while the Code Section has been in operation since I believe 1868 and there have been hundred of cases taken up to the Supreme Court of the State of Georgia regarding its logic and other factories, no one ever raised the constitutional validity of that statute until I attempted to do so in the Corbin case which is 212 Georgia, page 231 where in the Georgia Supreme Court ruled that I -- it was not properly raised and therefore refused to pass on it. And it was brought to this Court on certiorari and of course declined. The Supreme Court of Georgia like I said before has repeatedly held that they cannot assist in any way. Now, if I may illustrate what happens in Georgia, the defendant has told the (Inaudible) upon the witness stand.
Charles E. Whittaker: He's told?
Paul James Maxwell: He is told. He wants -- wants -- defend lawyer wants him to do this, told about on a witness stand. He gets up on the witness stand and the judge turns to him and says, now, Mr. -- in this case, "Mr. Ferguson, you are charged with murder. You have a right to make to the jury setting over there just such a statement as you want to make if you care to make one. You can't be sworn, nobody can ask any questions. Now, go ahead and make a statement if you want to make one. Now, this Honorable Court will try to realize --
Earl Warren: Is that exactly what was said in this case?
Paul James Maxwell: Yes sir, Your Honor.
Earl Warren: It is. Is that in the record?
Paul James Maxwell: Yes, I believe -- I certainly believe it is, Your Honor, and that's what they mostly, say very seldom do I ever repeat the Code Section word to word. However, most people especially a boy like this boy, most people who have never been to a court for anything in their life, they're tongue tied, they're nervous, the lawyer -- his lawyer might just well get up and go downstairs or outside and go and have a cup of coffee, he can't do a thing for him, he can't help in any way whatsoever. He gets up there and he'll stammer around and most of them will say, "Well, I -- " that is -- I -- look at the jury and say, "Well, I didn't do it." And none at all else to say, and the lawyer sits there like this, "Tongue tie can't help him anyway whatsoever." However, the Supreme Court has now interpreted into this Code Section that while the defense lawyer has not -- does not have a right to ask any questions, it is discretionary where the judge as to whether he shall be allowed to ask any questions or not. Now, as it isn't -- so the City of Atlanta, the criminal court is divided in two sections, two divisions. Now, if I may point out to this Court, down at this under the hall as division number one, down at this under the hall as division number two. Let's assume that there was a murder trial about to start down in division number one and a murder trial to start down in division number two. The lawyer -- the defense lawyer down on number one, says to the judge, "If Your Honor pleases, I know I don't have any right to ask any questions on the Georgia law but from my help my client out." And that judge says, "Well yes, go ahead. Ask him anything you want to ask him.Help him all you want to help him." At the same time -- same at the other end of the hall, that lawyer has the same question and the judge says, "Absolutely not, you have no right to ask him any questions and I forbid you to ask too many questions." Now, how can anybody say that that is equal protection of the law?
John M. Harlan II: What's the fact here? Did they usually exercise their discretion (Voice Overlap) --
Paul James Maxwell: No, sir. They do not. They do not exercise that discretion.
John M. Harlan II: You mean it varies from judge to judge?
Paul James Maxwell: Yes, sir.
Charles E. Whittaker: Did the judge have, if he allowed some questions to be asked by defense counsel, would he then also be able to allow the prosecutor to ask some questions of this defendant?
Paul James Maxwell: Not Your Honor, unless -- unless the defendant refused. Now, if their defendant says it's alright for him to ask me questions, then he may do so.
Charles E. Whittaker: I thought the statute said that he -- the defendant could not be cross examined.
Paul James Maxwell: Unless, he -- if he declines to do so Your Honor, it says, if he declines to do so mostly with this permission.
Charles E. Whittaker: I understand that Section 38416 one following the one you've read makes of such an accuse than incompetent witness, but under the preceding section, he maybe likes to get on the stand but not as witness, --
Paul James Maxwell: Yes.
Charles E. Whittaker: -- make any statement he wants. But, he cannot be cross examined.
Paul James Maxwell: That is right.
Charles E. Whittaker: Is that right? Now, wouldn't it be a little bit in Congress for a witness to be allowed to be examined on direct by his own counsel and still not to allow any cross-examination of him?
Paul James Maxwell: It would Your Honor. It would. My contention is this, that that Code Section does not say anything about direct examination. It stresses and strongly says, "Cross-examination." Now, if the Court is going to interpret the cross-examination means, any kind of examination, that it would be up to the defendant to say, "I would like my attorney to ask me some questions and I would like the Solicitor to ask me some questions." But it has not deemed to be in to be that way. It is deemed that he can't get up and make a statement but he cannot be cross examined if he declines to do so.
Felix Frankfurter: Well, isn't the -- isn't the null of this case that Georgia had continued to what was essentially under relevantly, recently (Inaudible) at all --
Paul James Maxwell: (Inaudible) law.
Felix Frankfurter: The question is whether the fact that its own law makes it a true law. Didn't I ask you for these questions, these both?
Paul James Maxwell: The answer to -- to Mr. Justice Frankfurter is that the old law is embodied in 416 which follows --
Felix Frankfurter: No, I'm not talking about your Georgia but that -- that would be in each law.
Paul James Maxwell: Yes, sir. Yes, sir Your Honor. Yes sir, it was.
Felix Frankfurter: Well, if you mean the competent witness that he could make a statement about whatever he wants to make a statement about, and Georgia has continued that, the only statement you make as I understand it, the question is whether time has so far outlawed that old laws could make it come in competent with the Fourteenth Amendment. That's your -- that's our problem, isn't it?
Paul James Maxwell: Yes, sir, it is. It's the only State as I understand it in the United States that has such a law.
Charles E. Whittaker: Your statement and your conclusion would make of the accuse defendant, a competent but not a compellable witness, is that your view?
Paul James Maxwell: My view is Your Honor that the whole Code Section is invalid. You're asking my view. My view is that it's all invalid. It's invalid because it denies to the first it denies to the defendant the benefit of counsel that the most important time of his trial when he needs counsel law and he does any other trial.
Charles E. Whittaker: You said both sections of lawyers, is that it?
Paul James Maxwell: I -- I believe if the -- the part that says that he may make a statement, any statement that he desires to make, I believe that that would mean that he would have a right to have assistance, at least assistance from his own attorney in making that statement.
Charles E. Whittaker: He hasn't advised him counsel from him -- from his lawyer before he gets on the stand the (Voice Overlap) --
Paul James Maxwell: Before he gets on the stand. Yes, sir.
Charles E. Whittaker: It is only that he can't be examined there.
Paul James Maxwell: He can't be assisted even.
Charles E. Whittaker: Now, would you allow full examination -- you think he has to have a full examination and cross-examination? Full, is that it?
Paul James Maxwell: I prefer my reference would be -- I prefer for the justice on both sides for the defense and for the State if he was allowed to do like you do every other jurisdiction including the federal courts if you want to put the man up on a witness stand and let him get up, he swore in and testify and then be cross examined. I don't see how a jury could arrive at the truth about things if some man is put up on a witness stand and that the judge tells the jury, "Now, you're going to believe if want to you can believe in preference to a sworn testimony. Most people believe in the sworn testimony. Now, it is worthy also a note that Your Honors, Justice Whittaker -- Mr. Justice Whittaker stated that that is followed by 4 -- 416. Now, in a reply brief that was stated on page 9. They were -- they say and even if the Code Section 38-415 is invalid that if found this case would not be benefit since he would be unable to make any statement. Now, my answer to that is first of all, we have to cross that bridge if it is invalid when we can't do it. But secondly, I feel a no that the Georgia Legislature at this Court was to rule that that Code Section was invalid on the constitutional grounds which we had certainly asking this Court to do that the Georgia -- Georgia Legislature would immediately pass a bill which they have been trying to get them to do. Every grand jury presumptive recommends that it'd be abolished. And most judges and lawyers on layman preferred to have it abolish than they give into their vagarious way of doing things by having any competent witness. Now also, where it says that he is incompetent to show you how confusing this whole thing is on page 14 at the top of the page, of the reply brief, the appellee says, "It is respectfully submitted that the Georgia practice of the law in a criminal defendant who was incompetent to be a witness to make an unsworn statement without being under direct examination buy his counsel is not violated with these vagrancies. The part I want to bring out is where it says who was incompetent to be a witness. Now in 1951, the Georgia Legislature added to the Georgia Code Section 38-1606 an evidence of following and I quote "provided, however, that this Section shall not prevent a party charged with adultery from being competent to testify as to his or her innocent of such charge." Therefore, defendant charged in the State of Georgia with a crime of filthy is competent but if he's charged with murder, he is not competent. That's how confusing it is. That was an Act of 1951 where they simply made adultery, the crime of adultery a person could be a competent witness. Now, this appellant was arrested without a warrant, never taken before committing (Inaudible). He's held in jail for about two months. A writ of habeas corpus was taken out on his behalf on September the 4th and the trial judge set that out for a hearing on the 23rd -- the 15th day of September, 1958, which was the same day that the grand jury was meeting. Now, that was in violation, this holding there was in violation of Code Section 27-212 which is set out on page 3 of the appellant's brief and with says that any personal arrested without a warrant shall be conveyed immediately or as soon as possible before admitting magistrate and anybody held over 48 hours shall be released. When this -- and also I'd like to bring out -- to bring to this Court's attention in the appellee's brief. They say on page 17 that there is no evidence in the record of any illegal detention, no record in the evidence of any illegal detention. They stated that on page17. In the record on page -- starting on page 26, 27 and 28, if this Court pleases, the officer, J.B. Cooper says, "We have a Justice of the Peace on this courthouse, I did not stop at that Justice of the Peace or anywhere else and obtain a war of any kind, not on my superiors handed me a warrant or told me that they had a warrant. When I pursued in, I had time to stop and obtain a warrant if I had wanted to do it.
Hugo L. Black: Stop at what?
Paul James Maxwell: And get a warrant.
Hugo L. Black: Oh.
Paul James Maxwell: So there is evidence in the brief that he was illegal -- that it was an illegal detention. Now, the judge set this writ of habeas corpus hearing found for 2:30 on September the 15th. In a few minutes, just a few minutes before we go to trial and hearing the writ, it was announced by the Solicitor that the grand jury has indicted the appellant. The trial judge then issued a bench warrant for his arrest. He issued a bench warrant although he had been in the jail still was and had been for two months but he answered the bench warrant and that he said, "It is now moot because I just issued a warrant." They waited two months. They do what they should have done two months previously. Now, when he was put in jail and questioned for six -- for seven -- about seven hours by all these policemen, deputy sheriffs forced to take a paraffin test, we had claimed that that was an illegal detention. Now, it is very worthy and worthwhile to notice that on page 9 of the -- of the transcript of the record, this confession -- to me this is very important, this is a confession that they got from this boy. I have been advised of my rights --
Earl Warren: Where do you find that?
Paul James Maxwell: On page 9, Mr. Chief Justice Warren, at the bottom of the page. (Inaudible) number first.
Earl Warren: Yes.
Paul James Maxwell: "I have been advised of my rights that I do not have to make a statement of any kind, that any statement I do make can be used against me in a court." The plural is used, "I have been advised that my rights," but the only right that's in there recently, it doesn't have to make a statement. It certainly doesn't say anywhere in there that I have -- I may have an attorney if I want one. It says nothing about that whatsoever. They used the word plural rights for one right that they told him about. They did not tell him any other right to have counsel. Now, it is very true that later on, somewhere in the transcript here, when he was being questioned by the State Solicitor, one of them said, "Oh, yes, we asked him if he wants a lawyer and he said he didn't want one." But it was at the beginning of that confession right there where he was advised of his rights." We advised him that he -- that I have been advised that I have a right to have a counsel. I do not have to make a statement. If I do not care to do so, if I had it in all there, I would agree to it but it doesn't say it there." And that's what the boy signed and that's why we have to go on then.
Earl Warren: Did you raise federal question?
Paul James Maxwell: But says --
Earl Warren: Did you raise the federal question?
Paul James Maxwell: In the lower court?
Earl Warren: In the trial court.
Paul James Maxwell: Yes, sir.
Earl Warren: Where on this issue? Where did you raise it?
Paul James Maxwell: Oh, I'm sorry. You mean on this --
Earl Warren: From what you've just been talking to us about.
Paul James Maxwell: You mean this part about the confession?
Earl Warren: Yes.
Paul James Maxwell: I didn't raise it as saying at the time in a court that it was against his federal rights. If that's what Your Honor mean.
Earl Warren: Where did you -- where did you first raise it?
Paul James Maxwell: I raised it all the way through it because a lot of these things, Your Honor, we didn't know about until afterwards.
Earl Warren: Well, didn't you know -- you know about this, didn't you?
Paul James Maxwell: I knew about that. Yes, sir.
Earl Warren: You didn't raise it?
Paul James Maxwell: I objected to it.
Earl Warren: Well, you didn't raise it. You didn't raise it.
Paul James Maxwell: (Voice Overlap) being admitted into evidence because it was a violation of his constitutional rights of being -- its confession being used for --
Earl Warren: Where -- where --
Paul James Maxwell: -- the mistake I made according to Supreme Court in United States was that I use this Honorable Court's rulings and two federal cases.
Earl Warren: Where -- where does it appear in the transcript that you raised that question?
Paul James Maxwell: On page 76, Your Honor, the Supreme Court of Georgia's ruling under A. It says that the Supreme Court of United States, those were the same cases that I raised the issue of the --
Earl Warren: Page what?
Paul James Maxwell: Page 76, Your Honor, A, subject A.
Earl Warren: Well, that's the opinion of the Court.
Paul James Maxwell: Although -- that's what I raised Your Honor, and they're saying that -- that --
Earl Warren: But where did you raise it in the -- where did you first raise it, I asked you?
Paul James Maxwell: In the trial court.
Earl Warren: But where in this record does it show that? That's what I mentioned to you.
Paul James Maxwell: This particular brief available, so it's in this -- that was sent up is of course not the complete one and I'm going to have -- to be sorry to say, Your Honor, I don't know just where. It isn't here.
Earl Warren: Then go ahead with your argument.
Paul James Maxwell: But it was -- it was raised about those federal cases as being inadmissible along -- in the record that I said it was so inadmissible on all of those facts. Now one of the main things, other main points that we have that we did not know what were after. The trial of this case was that two of the juror men that tried this case were related to the Solicitor that was to the prosecuting attorney. We didn't know it at the time and we found a lot after the trial.Of course, it was well-known to the prosecuting attorney and a third chairman was related to the sheriff that had trusted the other. Now there again, we bring him to Supreme Court of Georgia into this as being a violation of his constitutional rights. The only two things that the judge of the lower court in his order overruling the motion for a new trial was bias and the jury who's being related to the Solicitor. Now, the Supreme Court of Georgia held -- literally held that it's perfectly alright for -- to have 12 jury men related to the prosecuting attorney in the criminal case. Of course, you can't do it in a civil case but on a criminal case it's perfectly alright because he's not supposed to have an interest in the case. Now of course, I don't know if any prosecuting attorney who has ever run the clause, this doesn't mean they're doing everything in the world they can to our conviction. And I would say that any jury men if they're related to the prosecutor and the defense did not know it then I certainly would not say if that was an impartial jury by any means. I don't believe that the Federal Constitution for an impartial jury man would be covered by saying if they were relative to other prosecuting attorney.
Earl Warren: (Inaudible) questioning of the jurors on the part here?
Paul James Maxwell: Yes sir, Your Honor. There are again the -- impermeably honest, the Supreme --not the Supreme Court but the trial judge practically set out a line but I didn't ask him.
Earl Warren: He what?
Paul James Maxwell: He said the truth I didn't ask him this question. I asked everyone of those jury men because I knew that Douglasville is a small town about 3000 people and I certainly responded enough to know that I was one of the tough time getting an impartial jury. And I asked each one of them a series of questions, one of them was, are you related to the Solicitor or to anybody sitting at his table?
Earl Warren: Is that in the record?
Paul James Maxwell: Just a second, Your Honor. I will cover that completely. The other question was how well do you know the Solicitor? Now, the States all fit at the making after the rehearing -- the hearing for motion for a new trial, they have 12 affidavits.One from each one of the jurors stated this and submitted up to the trial judge. In those 12 affidavits, it says this, "They all admitted that I asked him a question of how well they knew the Solicitor." One of them said that I asked him -- yes, I asked him if he was related by blood or marriage. Another one said he wasn't quite sure. However, the judge in his order overruling the most of a new trial which is on page 11 of the appellant's brief, the Court finds as a matter of fact that from affidavits of the 12 jurors sworn who tries that case submitted on behalf of the State of Georgia that the question, are you related to the Solicitor or anyone in his law office or anyone around the table was not in fact and in truth asked of the said jurors individually or collectively when the jurors were being examined. Now, the problem now comes up though that we do not have those affidavits and all in this record because the Supreme Court of State of Georgia stopped us from doing it. That's another one of our grounds for asking from up here, where this had gone through. When I have time to go to the Supreme Court of Georgia on this appeal, missing parts, there were some missing parts missing. Now of course, in Georgia, the lawyer is supposed to check it all. That was my fault. I make no comments about that. That was my mistake. However, there's a Code Section which will be found by on -- in the appellant's brief, on page 4, at top of the page, which says, if however it appears the appellate court --
Earl Warren: Where are -- where you reading?
Paul James Maxwell: Page 4 Your Honor.
Earl Warren: 4?
Paul James Maxwell: Yes sir. On top of the page, Section 6-810 subsection 4. If however, it appears to the appellate court an argument of the counsel on the hearing or in the consideration of the same preparatory in making up the judgment of the Court that any part or portion of the record of the case in the court below has been brought up and such -- has not been brought up that such part of a record is necessary in the opinion of the Court to read before them an order to fully and fairly adjudicate the question of issue in the alleged errors then the Court show by its order directed to the Court to the court below require them to certify and send up such portions of the record. As in the opinion of appellate court, I need full and necessary in order to fully and fairly adjudicate the errors of assignment. Now, that has been interpreted word per word as a must on the Supreme Court by Chief Justice Duckworth of the Supreme Court of Georgia. When the Court overrules -- the Supreme Court overruled it and said that the record wasn't up there, I came back on the rehearing and asked them about that Code Section and asked to send out and have it sent out. Now, they dilly-dally around, they sat down to the lower court what they have would be a word approved brief of evidence.
Earl Warren: I beg your pardon.
Paul James Maxwell: Approved brief of evidence. If you have the approved brief of evidence down below, send it up. If you don't, let us know, so of course, the court down below said, "Yes, we have all these affidavits submitted by the State and all down here, but they haven't -- they haven't approved. They don't have an approved by the judge. So the Supreme Court of Georgia said, "Well, if they aren't approved then we can't force them to set up." However, in Atlantic National Bank versus Zinc, they held it's just the opposite of that, which is cited on our brief there. And our contention is that the only two things that that lower court and his order overruling a motion from a new trial, the only two things that he mentions both retained to the missing parts were not set up. That's all he refers to. We don't refer to any other ground behind it, just so as two grounds. Now, how in the world can a Supreme Court rule that there were no errors in the trial court if they don't have any forum to go over what his own far as this?
Earl Warren: Was this called on cleaving and practice applicable to both criminal and civil litigation?
Paul James Maxwell: Yes, sir. Of course the -- our careful reading of the -- the record here or not the record but our saying that's referring to all Supreme Courts' doings about this will show that the judge has said that these affidavits were kind of -- duly and timely presented. They were on record in the Court but -- in the clerk's office. Therefore, it -- I just cannot understand why if all that was done that the judge gave us -- gave the State and myself time to file these things which we did file, which he turns around his ordinances that he gave us time and they were duly and timely presented. They were filed on the clerk's office. Why anybody could say enough by the record? Now, I just don't understand when the whole order that the judge writes is on that final record and nothing else.
Charles E. Whittaker: Do I understand you to say that those were affidavits by the jurors?
Paul James Maxwell: Yes, sir.
Charles E. Whittaker: And all said that you had not asked these questions?
Paul James Maxwell: No, sir. (Inaudible) said that I did not ask them whether they were related to the Solicitor. What I've said I did ask him if -- if he was related to the Solicitor and once that he wasn't quite sure, but everyone of them, everyone of those 12 said yes, I did ask them the question, how well do you know Mr. Noland, the Solicitor. And it's my contention if I ask a man how well do you know John Jones, he's a brother of his. He ought to come out and say, "Well, I all know him well pretty good, he's my brother."
John M. Harlan II: Well, what is the relationship the one that you're talking about?
Paul James Maxwell: Second or third cousins.
John M. Harlan II: Second or third cousins --
Paul James Maxwell: Yes sir, which in the civil angle in -- that the Supreme Court held in Georgia, he would be incompetent. Well in the criminal case, he would not be. The Supreme Court --
Earl Warren: What -- what are their answers? What were their answers as to whether or not they knew the prosecutor?
Paul James Maxwell: That Your Honor, their answer was simply what any man would say, I know him pretty well, or I've seen him around town, or I have been with him for a while or something, I met him at large, or something like that. There was no indication that they were close at all in any way.
Earl Warren: One of those who was relative, the one that you stated that the question had been asked of him?
Paul James Maxwell: No, sir. My contention is that the fair and impartial trial is just as much on the part of the State, prosecutors to give you that fair (Inaudible). And all do respect to Mr. Noland, I think that he knew they were relatives of his and they should have searched them, because that's no way to convict the person if I have relatives on the witness stand or on the jury. I -- I say that anybody who was guilty, if they've given all their fair just rights under our way of law and then a jury comes back and finds him guilty, that's the way we have it in the United States but I don't feel that there should be any conniving or having jury men or anything else to convict the person.
Earl Warren: Mr. Winn.
Dan Winn: If the Court please. If I can take the -- an issue of moments of this time to try to narrow the issues of this case before the Court, I think that Your Honors have been able to see that basically, there is only one constitutional question before this Court that is the constitutionality of Code 6 in 38-415 of the Georgia Code allowing the unsworn statement. Now, I will, later in my argument, see why I believe that is the only question, but at this point, I would like to clear up one or two inaccuracies that I feel have been presented to the Court concerning the Georgia law on unsworn statements. As Mr. Justice Frankfurter stated, this law is a continuation of the common law possibly not quite as broad in the usage as it was at that time because as some authorities, I have studied -- stated they allowed the accused to also argue his case at the same time in addition to making such statement as he saw fit. In that respect, it is not quite as broad. However, in the interpretation given this by the Supreme Court of Georgia and in my experience since there was a statement by counsel for Mr. Ferguson that been my experience it has been extremely liberally construed in behalf of the accused even in the trial courts, and of course, I cannot demonstrate that to you.
Felix Frankfurter: What happened in -- would you mind telling exactly what happened in this particular case, Mr. Winn?
Dan Winn: In this particular case, the only -- the colloquy is shown in the record if the Court please that is -- and not as my friend Mr. Maxwell stated an accused is told to take the stand and I -- I believe he -- he stated that -- in this case, this accused was told to -- to take the stand --
Earl Warren: By his counsel.
Dan Winn: That is -- yes, sir, but that is not the -- that is not the practice. He has the right at the time the State rest to present anything he wants to present as in any other court. And it was a part of that. He wants to make an unsworn statement. He can't either make it or not make it. The State cannot -- cannot comment on his failure to take the stand or his failure to be a witness at all. He cannot even comment on.
Felix Frankfurter: Well, but they couldn't very well, could they, Mr. Winn, as he can't be a witness?
Dan Winn: No sir.
Felix Frankfurter: Now --
Dan Winn: The failure to take the stand, I'm sorry.
Felix Frankfurter: May I -- it's failure to make some statement.
Dan Winn: Yes sir.
Felix Frankfurter: May I ask, it's just for a matter of -- to get -- get more vividly how you do things down there. When the State rest and assume that the defense puts in a defense who are the witnesses, may the defendant may -- at the very outset, may be accountable for the defendant to say, "My client didn't make statement Your Honor," how much do you wait until if it's all -- if the cases all in?
Dan Winn: He may do that at any time. He may never mention that if he sees fit.
Felix Frankfurter: Yes, I know. You mean you -- he's not -- you don't compel him to do anything (Inaudible)
Dan Winn: No, sir.
Felix Frankfurter: If he wants to make a statement by way of an opening, he can do that?
Dan Winn: Yes, sir. He can make that either at the beginning of the case or at the conclusion of the States case. He has a -- has a right to make his opening state --
Felix Frankfurter: Could he make it at the beginning of the trial?
Dan Winn: Yes, sir. If he sees fit at the --
Felix Frankfurter: Does -- does counsel for the -- the prosecutor doesn't tell the jury what the case is about?
Dan Winn: Yes, sir.
Felix Frankfurter: Does then the defendant's counsel make his statement?
Dan Winn: He may. He may at that time make a statement.
Felix Frankfurter: Well, may the -- may -- the counsel makes -- tells the jury what he plans to defend.
Dan Winn: Yes, sir.
Felix Frankfurter: And in addition to that, the defendant himself makes a statement?
Dan Winn: No, sir.
Felix Frankfurter: No.
Earl Warren: We'll recess now, Mr. --