Julius L. Sackman: Thank you very much, sir. I was discussing before the petitioners' contention that the provisions of the Internal Security Act and Section 5 of the Communist Control Act evince the legislative intention not to terminate the right of the petitioners to have and function through employees and that they cited the support of that fact certain statements of the Department of Justice in a brief submitted to this Court in Communist Party against the Subversive Activities Control Board. I also referred to the fact that the reference was to the registration provisions of the Internal Security Act and to the provisions of Section 5 of the Communist Control Act, which deal with the determination by a jury of membership participation or knowledge of purpose. I'd also gotten to the point where I stated that the argument was predicated on an obvious fallacy that analysis of a statute indicated that there was no question of the fact that Congress had effectively destroyed the Communist Party as a legal entity, but that, nevertheless, Congress was aware of the fact that this might drive the movement underground and that it might thereafter continue on an illegal basis that this was mere recognition of the character of the movement, historically. And that the recent history of these operations demonstrated that -- that this is what it would do and what it has done under a voluntary situation and how much more act is that they will do so when they are put out of business by operation of law. In any event, my point is that controlled by the Government is just as essential in the one case when they are illegally operating as it is in the other. The regulatory provisions of the Internal Security Act and the provisions of Section 5 of the Communist Control Act apply as well to operations outside of the law as they do to those within the law as witness the registration of gamblers through the medium of a tax. It is, moreover, unsound and illogical to argue, assuming that the argument is correct, that because the regulatory provisions of the Internal Security Act will have no scope if the activity sought to be regulated or prohibited by the Communist Control Act that, therefore, the proviso in Section 3 of the latter Act should be interpreted to authorize the petitioners to continue to assert, as a legal entity, the very rights, privileges and and immunities which that very Section terminates. Now, we come now, in response now to Mr. Justice Douglas' question, to the all important question, which was the basis of the dissent in the court below. Chief Judge Desmond, speaking for the majority in the New York Court of Appeals, held that whatever rights, privileges and immunities the petitioners may have had were terminated by the Communist Control Act. Associate Judge Fuld, dissenting, held and the petitioners here urged that the requirement to pay an unemployment insurance tax is a liability imposed upon them and not an immunity or right within the Communist Control Act. Now, it seems clear that the very nature -- that at the very nature of things, an obligation or duty to pay a tax cannot be considered a right, privilege or an immunity. But the relevant and the crucial point which is involved in this case is whether the right to be a registered employer was terminated by the Act. The correlative of the right to be an employer is the obligation to pay the tax, but the latter is merely the tail which ought not to be committed to wag the dog. As well might it'd be argued that the obligation to pay an income tax is determinative of the right to earn income or to push the analogy to an even more absurd extreme, the obligation to pay an estate tax is determinative of the right to pass title by will or dissent. Furthermore, this Court in Rapkin against the United States in 1951 settled the law that the obligation to pay a tax is not dependent upon the legality of the transaction upon which the tax is based. Its specious reasoning to conclude that the collection of a tax constitutes tested approval of the transactions from which the obligation to pay the tax arose. The obvious conclusion which may be drawn from the dissenting opinion in the court below is that since the Communist Party has not been expressly exempted from the payment of the tax, it is, therefore, licensed to engage in transactions which have been forbidden by law. But this, too, has been settled adversely to that view in Wainer against the United States in 1936 decision of this Court. In their reply brief, the petitioners refer to the fact that the Bureau of Internal Revenue continues to collect taxes from the Communist Party under the Federal Unemployment Tax Act. And they quote Judge Fuld to the effect that this action is diametrically opposed to the action of the Industrial Commissioner and constitutes recognition of the Communist Party as an employer. They also referred to a recent letter of the Solicitor General of the of the United States to the Clerk of this Court declining to intervene in this case after the Court had certified that the constitutionality of a federal statute had been drawn in question. Although the Solicitor General stated other reasons explaining why he declined to file a brief, there is no gain saying the fact that he agreed that under the views of the dissenting judges below, the constitutional questions is not reached. It is not clear, however, that the Department of Justice agrees with the petitioners on the point which they urged because he merely states that the information, as to the practice of federal agencies in interpreting the statute, has been as is set forth in Judge Fuld's opinion. The petitioners, however, assert that it is a fair inference from the Solicitor General's letter that the position attributed by Judge Fuld to the federal authorities is that of the Department of Justice, as well as that of the Bureau of Internal Revenue. But how does this square with the Solicitor's statement in his letter that the presentation of the constitutional question is conditional in the sense that it will be reached only if the Court places one of several interpretations upon the statute. Assuming, however, that the petitioners' inference is properly drawn, we have simply a difference of opinion between a state administrative officer and a federal administrative officer, a difference of opinion between the Department of Justice and New York's Attorney General as to the meaning of a federal statute. There has been no binding federal judicial construction of the Act. The federal inaction under the Act on administrative or other levels where there has been no judicial pronouncement compelling such an action, does not militate against the legal efficacy of the Act. Where a statute is vague and ambiguous, resort may be held to the practical construction of the Act as revealed by the action of those in whom the power of enforcement of the statute is reposed. But the Communist Control Act is clear and unambiguous in its terms. It is self-executing. It is not in need of further statutory implementation, either federal or state. The failure of the federal authorities to take action or otherwise test the meaning or the validity of the Act need not and cannot be construed as a declaration of federal policy concerning the party status because that policy has been clearly and explicitly stated by the prime fixer of national policy, the Congress of the United States. Whether the position of the Bureau of Internal Revenue evidenced the reluctance to surrender and establish source of taxes or whether the position of the Department of Justice was motivated by an unfounded fear that the regulation program under the Internal Security Act would thereby be prejudiced, does not fall to the fact that both internal revenue and justice had not evidenced the courage of the clearly expressed congressional convictions. Now, the petitioners assert that Congress had no power to enact the Communist Control Act because they say it was dealing with rights granted by state law which do not substantially affect interstate commerce. But the power of Congress with relation to this Act is founded on a much broader and a much more relevant based in the control of interstate commerce, the Federal Government through Congress has a constitutional right to act not only on its own behalf, but also on behalf of the States. Article I Section 8 of the Constitution provides that Congress shall have power to provide for the common defense. This clause has been held to authorize legislation against attempts to subvert, undermine or overthrow the Government. The Act is furthermore a manifestation of congressional power under Article IV Section 4 of the Constitution, which guarantees to every State in the union or republican form of government. And by virtue of this provision, the duty of suppressing sedition and subversion within a State rests directly upon the Federal Government. Aside from the question of constitutional capacity to enact the law such as that which is here involved, it should be noted that the right so to act is without constitutional limitation and is not judicially reviewable. This Court held in Ohio against the Akron Park District in 1930, that questions arising under this provision are political, not judicial in character and does all for the consideration of the Congress and not the courts. Obviously, the right of Congress to act or the wisdom or lack of wisdom which it manifests in exercising the right are not reviewable by this or any other court. Insofar as complaints have been made that the Act violates the Tenth Amendment, with respect to the reserved power of the States, it may be observed that given a clear exercise of the power, as I believe I have demonstrated in this case, the Tenth Amendment imposes no limitations on that power. It merely gives doctrinal body to an objection that Congress has no power at all to act in certain areas. It states, as the Court has said, "But a truism that all is retained which has not been surrendered". Thus, if Congress has power to act in a given area, no valid objection can be raised because of the fact that it thereby enters a field which ordinarily had been regulated by the States. We come now finally to the question of constitutionality of the Act. Thus far, no court has held this Act to be unconstitutional. In 1954, the highest court of the State of New Jersey held in Sullivan v. Reese (ph) that the Act was constitutional. In the case at bar, New York's Court of Appeals expressly refused to accept the petitioners' argument that the Act was unconstitutional. The dissenting judges never reached the question of constitutionality, nor for that matter, did the appellate division reached that question. Although the appellate division made a very definite statement it had no doubt that this could constitutionally be done accepting for the difference in opinion as to interpretation of the Act. This Court, too, seems implicitly to already have approved the Communist Control Act. In Pennsylvania against Nelson, which was decided by this Court in 1956, it was held that by the enactment of the Smith Act, the Internal Security Act of 1950 and the Communist Control Act of 1954, the Federal Government preempted the field of prosecutions for sedition. The Court said, ?Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition.? Taken as a whole, they evince a congressional plan of crucial importance to the question which is involved in this case, is that fact that the determination in the Nelson case was based on a congressional plan, which included the Communist Control Act, and implicit in the acceptance of this plan, as determinative of the Court's conclusion, was the acceptance by the Court of the validity of all elements of the congressional plan. Petitioners assert than the -- the Communist Control Act constitutes a bill of attainder and an ex post facto law. But we are not here involved in a criminal case, nor are we dealing with matters relating to punishment. The constitutional provisions do not apply to legislation which imposes civil disabilities. To strike down the Act, the legislature must have demonstrated penal intent. Furthermore, in order to constitute punishment, this Court has held that the proscription must have retroactive application. This Act, although it obviously imposes only civil disabilities and not punishment, nevertheless, even if it were to be considered to impose punishment, is clearly not retroactive in character because it recognizes the continuing criminal character of the Party. The Act provides for inability to assert in the future, any rights, privileges and immunities in connection with transactions which take place subsequent to the effective date of the Act. Furthermore, apart from the question of whether the Act does or does not constitute a bill of attainder, the petitioners have no standing to raise the question. The provisions of the Fourteenth Amendment and of Article IV Section 2 deal with the privileges and immunities of citizens of the United States and of citizens in the several States. Time and again, it has been held that only natural persons are to be considered citizens under these provisions. The claim is also made of a violation of due process and of the First Amendment. Despite the prescription set forth in the Act, broad as it is, there is nothing in the Act which deprives the Party of substantive due process when action is taken against it to terminate a right which it claims. That is precisely what is taking place in the case at bar. The petitioners were afforded the opportunity if the hearings herein to oppose the termination of their rights, neither the Industrial Commissioner nor the Referee or the Appeals Board denied them the right to present their case, and the statute itself does deny them their right. It is submitted that there has been no violation of due process either substantive or procedural. However, assuming arguendo that there were present, a denial of due process, it is submitted that such denial would be proper as consonant with a basic postulate which underlies the due process provision. Movements which seek to crash freedom need not be tolerated. No democratic or constitutional principle is violated when a democracy acts to exclude those groups from entering the struggle for political power, which, if victorious, will not permit the struggle to continue in accordance with the democratic way. This Court must be aware of the fact that international communism has made tremendous gains, and that the increasing strength of the Soviet world places us in constant peril. Internal subversion has been the main weapon by which Communist victories have been won in many foreign countries. It now threatens the stability of still other countries in all parts of the world. Recognizing the implications, our Government is striving to meet the external threat and recognizing also the ever present and ever pressing internal threat, Congress, the executive and the States have persistently by legislation and security programs attempted to combat communism at home. The courts have refused to construe the Bill of Rights so as to interfere with a reasonable legislative judgement of what laws are essential to national security. This is, as it should be, for without observance of the primary duty of self-preservation of the civil liberties of the individual, would be meaningless, for they must, under such circumstances, circum to the totalitarian regime, which must inevitably follow. If our Government is to survive, it must defend itself not only against the external threat but against the dangerous preliminary attack on our internal security which is the peculiar technique of the Communist conspiracy and the prelude to war. It is submitted that the Constitution should be construed in accordance with its purpose and as one instrument, the basic, primary and overwriting purpose, which our Constitution expressly stated, it was intended to subserve and accomplish, was to secure the blessings of liberty to ourselves and our posterity. Freedom of speech, of religion and of the press, due process and other specific civil rights which are protected by our Bill of Rights are of great importance. And I would very reluctantly minimize that importance, but they are merely elements of and secondary and importance to the most fundamental right of all, freedom itself. Here, truly, you have your absolute, your impregnable, your unlimited right. Call it balancing, if you will, as you did ? as recently as last week in the Konigsberg case, but I do not consider that in the nature of things, any of these secondary freedoms alone can be equated with the fundamental concept of freedom itself. The basic postulate which had limit and control the specific freedoms including due process and First Amendment rights is that they are part of the framework for a constitutional democracy and should, therefore, not be used to curve the power of Congress to exclude from the political struggle of those groups which, if victorious, would crash democracy, deprive us of our fundamental liberty itself and impose a totalitarian regime. It seems clear that preoccupation with or emphasis upon one part of the Constitution and the ignoring of another equally important if not more important part, so as to endanger national survival, constitutes an unrealistic and improper method of applying constitutional standards and principles. The greatest difficulty in recent years has been with respect to the situation wherein the right to assert infringement of civil liberties and the right of government to resist violence seemed to meet. There is required a deeper analysis of violence and nonviolence and their relation to liberal democracy. In the Dennis and Yates cases, this Court affirmed the basic premise of our political system that changes to be brought about by nonviolent constitutional process. No government can assure a right of violent to overthrow. The guarantee and the rights are mutually abhorrent. Certain political philosophers to the contrary not withstanding, violent overthrow exists outside rather than inside the law. Therefore, if the Communist Party is a conspiracy for the violent overthrow of the Government and that fact is now established beyond peradventure of any doubt, its advocacy of such violence colors its every act and it is not protected under the Bill of Rights. Thank you very much, gentlemen.
Earl Warren: Mr. Abt.
John J. Abt: I have nothing further, Mr. Chief Justice.


Earl Warren: Number 1, on the calendar, William Thompson versus Coastal Oil Company. Mr. Axtell.
Silas Blake Axtell: The Court please. Nearly 40 years ago when I first appeared in this Court for a sailor. I've been working for seaman for eight years before that exclusively and have continued. This case is one, very difficult to discuss and I'm going to refrain. I'm going into details as to what caused the injury to the plaintiff. The plaintiff was born in Georgia, 1892. Speaking of his education, he said that if I must answer that question, I have to tell you that the facilities for colored people in Georgia when I was a boy were very inadequate. But learning, I had since I gotten on the ships and running around. The man, William Thompson was a tall, very strong person of normal outlook upon life, and a competent cook, have been a chief cook and assistant chief cook. He signed out not ago on this ship and Marron, Rosina Marron they called her of the Coastal Oil Company. On December 1st, 1949, he was injured on the 12th of January, some 52 days after he had joined the ship. If Your Honors would examine, the appellee's record and brief in the original court at -- you'll turn to page 42, 43, 45, and, particularly, 47 you will see a corroboration by the chief steward of the vessel of the very, very serious charges made by Thompson to the delegates of the ship. When I began for seaman, we didn't have unions to the extent they have them now, we had a union but it was a poor thing so that it's a chief attorney and its chief president or officer and (Inaudible) came to me, the boy in charge of the seaman, the branch of the legal aid society for a legal advice because it didn't cost anything but he made the slave of me while he made free men of the sailors. The man, Thompson, revolted that what he had seen. He went down the alley way to get some men to play poker. He had a -- he love playing poker. He opened the door, what he saw was so terrible especially as there was an extra man in the room with the three offenders. He reported it to chief steward immediately. Schiffers whose testimony we took. We took his testimony after he had been examined by the defendants in the case. They didn't know what his testimony. They didn't even want his statement, as that appears in the record. Schiffers did nothing. He did nothing when he saw what he had seen two months before this --disaster. The master knew it, the chief mate knew it, they all knew it. They tolerated it, a condition that's intolerable. As a father of six sons, I think, it's a matter of public interest for all of us, ashore or on the sea. Such people should be controlled or eliminated from contact with others. They had delegates, one for the deck department, one for the engine room department, one for the steward department. We took the testimony of Kaplus. His testimony appears also in this appellee's additional record. Kaplus verified but the plaintiff had said he was present at the hearing of the three delegates, the next evening, the night of January 13th, the night of the attempted murder. This horrible thing allowed to walk of three amongst men, born in Cuba didn't want to leave the ship. He'd worked into four or five months. He like the job and his associates or referred as in another name, I won't mention. At the meeting, Young, the chief pumpman and the ship's chairman as they call it, said, "What do you got, Thompson? You have no witness to corroborate you. You're all alone. What can you do?" He said, "Well, I demand that these men leave the ship." They could have called it the attention of a coast guard. I don't suppose they knew about the United States Attorney's Office. But it was a union affair and they were going to quash it. Get rid of the men in his own way. This one man, a Negro from Georgia, born in 1892 with characteristics that you and I should emulate. He alone challenged these three horrible things together with the man who was a witness to it in that room, alone. And he said, "What can we do? Where's your evidence? Where is your corroboration?" They didn't call the chief steward to say what he saw two months earlier and everybody else saw in that ship. What did the murderer do? He was heard by Kaplus, I referred to it in our brief, to have said, "I'll kill that." As of the -- he went and got the key from the chief cook and went into the galley and got a cleaver of the weight of this but more the size of this one, in the left, both of which were in evidence at the trial. He waited in an alleyway in a dark place and when Thompson came by alone. He stood behind him and we was not a small man and came down on Thompson, hit like that, twice, third time. Braising only the scalp but the two blows penetrated both tables of his skull. The man fell, moaning to the deck, I'm -- I'm dead -- I'm dead. His instinct then lapsing consciousness permitted that. Had he not had that native wit, that fiend will chop him from the top of his face and head until he was dead. Why? They say $4000 was a reasonable compensation for that. I would say that if there was no injury to endure such an experience with a life of serving in the ships ahead. Man, you even work for 45 years already. He had a few years left, to see a meat cleaver daily in his work is sufficient cause for the neurosis from which he suffered. Now, getting down to the law of this thing. The Circuit Court reversed.We asked for re-argument immediately or in that Court, to grant it. Judge Biggs of Delaware, Judge McLaughlin of New Jersey dissented and their findings were strictly in accordance with the principles of law as established by this great Court in Garrett against Moore-McCormack. The other five judges, Hastie, Staley, Maris, well in any rate, they're all from Pennsylvania. I'm certainly I do not imply that this is a conspiracy from Pennsylvania to reinstate what you disallowed and overruled in the Garrett case. The Garrett case was a Pennsylvania case. If you have time to look at the decision, you then reversed. You will find there the statement that in this State, there has never been a Court of Chancery. Our equity is administered by our courts at common law. And you will find that there is ingrained in that procedure, the proposition that the burden of proving the release, rests, proving there to us that the relief should be set aside rest upon the man's seeking to set is aside. In our federal court, the rule is the opposite. The burden is upon the man who defends release in this case for $4000. The plaintiff in this case was a member and a (Inaudible) Union for whom I was counsel for all my life, until it went out of their business under the drive of the Communist horde. He was one of those men that union men called "company men". Read if you have time, the letters that he wrote to the company, beginning. Telling about how he was annoyed by lawyers who wanted to give him advice. He pushed him away. I think they shouldn't have been there. But what are we going to do? The law schools are pouring him out with thousands. What are they going to do? Do we have to revert to Marxian compensation? Marxian compensation to avoid this thing, I hope not. He was a company man. He sought to ingratiate himself in the minds of his employer, Mr. Mahoney. He told them how bad he felt but he's going to get well and he was going to go back to save his job on the Rosina Marron. And when he transferred from one hospital to another, three of them in the south, I believe, finally appearing in the District Court for the trial of the culprit. The first trial was a mistrial and second trial resulted in a plea of guilty. The coast guard had gotten rid of him, gone back to his native, Cuba. At any rate, the man is a nervous wreck, his work is true but he has told us of his suffering. I personally prepared this case for trial. I was present when it was tried except for the time when Barron, the conjecture was questioned and said that he had told Mr. Thompson about Dr.Farr's report that he had only a 10% permanent disability.
Felix Frankfurter: Mr. Axtell, what would you say is the legal difference of the position between yourself and your opponent?
Silas Blake Axtell: Well, the difference is that the plaintiff was under impression that he was well. There is an article here in the Saturday post last week on Schizophrenics that is in enlightening. These -- these men, they get to be very up buoyant, optimistic, then they go down. This man borrowed $50 from men in the hospital in New York. He got $100 more and then went to their office and got $300 to go to Arkansas to get hot baths, so he feels better. He came back feeling fine, was sent to Dr.Farr for the second time -- no, the first time. And they came back optimistic. The hospital record said he was practically cured and nothing wrong with him. The hospital record shows encephalopathy of the brain by trauma.He thought he was cured and he had lost about $2000 in maintenance and wages. They were giving him $2000 extra. He would go into work. But when he returned to work and he had to use this meat axe and the heat of the galley, he found hot flashes on his head. He imagined it in a place where he was injured. Completely nervous, unable to stay at any job more than a little while, rushing on -- I never forget the time when he would -- in my office waiting for the trial if he could get it over. We pressed for trial. They opposed. Finally, on condition we waive a jury. They said they've tried the case. They had one of these offenders, his deposition in Court. He denied everything of course. The injury is very serious. We felt as lawyers if the Court gave him in $20,000 not more than half what he might have but that figure was one the plaintiff had fixed for himself in his negotiation to these underwriters. And they have said, "But you're all right now." As you read the Waters case we've cited in our brief and the (Inaudible) case, you will find -- excuse me. The Ninth Circuit in the Waters case. The chief engineer settled his case for $1000, the United States Government, and tuberculosis. He had complained of unseaworthy conditions and that the crew were incompetent. And he as chief engineer had to spend so much time rushing in and out of the engine room long hours, with no opportunity to rest, that he developed the tuberculosis. That man presumably intelligent, fairly well-educated, settled his case for a $1000. The District Court sustained the release. The Circuit Court, the very learned opinion by Judge Bone reversed the District Court. I want to -- you bear with me, how much time I got here? I -- I'm unaware of the time could -- five minutes more?
Speaker: (Inaudible)
Silas Blake Axtell: Yes, thank you. This thing really began, these releases, we called them red, white and blue releases. It takes so long to fill them out. They haven't been going along that to Vernon Jones who got his early training in my office way back in 19 -- had got acquainted with the sailors. (Inaudible) office that they got the people took him over. And he designed this release which the man has to write out and go back and repeat something he's five or six lines or questions about. To prove beyond any doubt, he knows what he's getting. To release -- he is releasing all that he knows about and all that he hasn't known about that doctors make mistakes and everybody makes mistakes. But regardless of that, he's signing off his rights entirely. Now, I've been to sea myself enough to know that the change in economic condition of the seaman which has been suggested here as a reason for this sustaining the Circuit Court is not a reason. A man doesn't change his thinking or attitude toward the land and its people because he gets more money for the risk of his life and the denial of happiness that follows the sea life. It doesn't change a bit. I remember on 1919, ordinary seaman on the West (Inaudible) when we came to the Panama Canal and we've been aboard that ship for several weeks. I couldn't get ashore quick enough.Came back to the vessel and a bunch of bananas on my shoulder, I've gone back to the second one because somebody had stolen the first one. Walked down some planks and jumped on to the deck. That is no proof of incompetence, I hope, but I do say that a sailor, to get his money will say "I believe you" and he -- he does believe him and he signs and he signed anything. So, the mere language of the release should be disregarded. The first case was a case of (Inaudible), boy from that island in the Mediterranean -- what is it? The one the British are holding down there. He had hurt his shoulder in the icebox of a Standard Oil tanker. He'd signed a release for $87.50, maintenance and cure. The case came in before Judge Conger who hadn't been on the bench long. I decided to withdraw the indemnity allegation because I have felt that to prove that there was negligence under the Jones Act, just because ice accumulated on the deck of a refrigerator wasn't a very strong case. But the evidence showed that the versa which had been calcified and shown so by the x-ray had cleared up under treatment. And he went back to work after signing the release and then he found he had to go back to the hospital, the calcification had returned to the shoulder. The hospital and the company doctor made a mistake. The judge, he gave him in those days that wasn't much as 1938, $228 in maintenance to make up for the additional time that he was laid out. The Court here has in our briefs, about five of them, all the law there is on this subject. All we ask is this that you give careful consideration to the original case that I submitted to Judge Conger, Harden against Gordon 4027, federal cases 1823, read the Minerva of the House of Lords in England mentioned in our brief in the Circuit Court on appellee's addition to the record. 1825, you find them. I don't see any evidence they knew about Judge Story's decision in 1823. But the similarity is there and it -- it should be observed today. Most unfortunate would it be to take a man like this who's already suffering from a neurosis and aggravation. And add to it, the frustration of defeat after this long battle.
Speaker: Mr. Axtell, what do you consider the legal ground to be on which this release should be set aside?
Silas Blake Axtell: Well, on the ground that there was a mistake as to the extent of injury. The man approached the thing, he was optimistic, he wanted to be -- he wanted the end of thing. He wanted his money. There wasn't any fraud. There wasn't any duress. But there was a mistake and the mistake was inherent in an injury he had sustained. You read the testimony of Dr.Samberg in the record. Now, we call Dr. Samberg specialist, one of the leading men in America who happened to be the consultant at the Marine Hospital where this man was a patient. They called Dr. Farr, the Yale Medical School who is a surgeon. I've known Dr. Farr for ever since I began the practice of law, classmate of theory of the Burlingame firm, great picture on Yale, 1903. Well, he is a kindly man. He says that 10% total disability, the judge in the record says "Well, if this man isn't hurt worse than 10%, I'm no judge." Read the list of statutes where I point to where Judge Hartshorne questions the plaintiff, questions down, the man who took the release. Questions Dr. Farr and questions Dr. Samberg. He took the trial away from counsel. They didn't call Mr. Thompson back to rebut the statement that he'd been told about the 10% because I was in an Naturalization Court hearing an eloquent address to new citizens when I couldn't be. Mr. Gleason, the lawyer who were trying it was alone. However, take the judge's conclusion and then I ask you this. The McAllister case by Judge Minton, you recall the question. How did he get the polio? Was it from the open latrine on the deck where the Chinese longshoremen were brought or permitted or was it from a visit ashore? Who could tell? Science had no answer. The judge decided who was he? It was Judge Hincks who'd been on the bench 40 years or more conscientious fine man. He decided the facts. Does your -- do Your Honors, want a succession of appeals like this or do you consider if expedient and proper in this time to follow the doctrine of the McAllister case which has been followed in all the Circuits practically to get rid of these disputed questions of fact. This trial is de novo, were invented, I presume by expediency like when the early cases I tried in Philadelphia where I had a mistrial because I mentioned to the jury the amount we're going to sue for or asking for, a rule peculiar to Philadelphia. That had a reason -- I presume in a similar railroad case where there was no other way to reverse the plaintiff. Now, you then have the situation. Allow the federal judge to be the guardian of the Court and the law says he is. Let him have it. Let the man appeal to him. If he decides against the man that ends it, should end it. If he decides the other way, it probably will end it to. Let him have that but why should the Circuit Court intervene and bring in ancient myths from Pennsylvania about equity and the burden of proof especially when they're in direct conflict with the stated policy of this Court. Garrett against Moore-McCormack is the law. It has been correctly applied by Judge Hartshorne and it had been misapplied by this Circuit Court, the Third Circuit.
Earl Warren: Mr. Hanrahan.
Michael E. Hanrahan: Thank you, Your Honor. If the Court please. I realized that my task is to sustain this release and to urge the Court to render an opinion on this reargument. Reiterating Justice Black's holding in the Garrett case so that the maritime industry as a whole has -- who are looking at this case most eagerly had something to determine just where they stand. I might say that if a release entered into one of the circumstances that Thompson -- surrendering Thompson release, it set aside here that the whole amicable adjustment, 90% of the seaman's claims today, I'm talking about today and a few years ago of being settled out of Court that are quick release so the man doesn't have to wait four or five years for this case to come up and pay attorney's fees and doctor's fees and so forth. Before -- before going into a brief summary of the facts, I think, it's just important to -- for the -- my further argument to really reiterate the three-fold holding of the Garrett case, one then, I admit representing the steamship company. I have the burden of proof which I contend was sustained when the Circuit Court reversed the District Court's holding. It's clearly erroneous under the facts. The second element of the Garrett decision was that we must prove that the seaman signed the release with a full understanding of his rights. And the third, and this is most important, I think, in consideration with Your Honor's question, the mistake. “The adequacy of the consideration and the nature of the legal and medical advise available at the time the release was signed are ought to be considered.” Just by hitting highlights, I think, it's important just to point out to the Court that a lot seaman has changed so considerably over the years.I mean, the days of Captain Bligh, Moby Dick and the whipping post of gun. Things have changed considerably since Mr. Axtell has -- have been representing seaman. I saw that he had a quote that he published and his one published by the attorney for the National Maritime Union. This is a summary for the seaman of -- of what the law is. This is given to the seaman. There is no question here for instance that Thompson himself had executed releases before. He's let us knew -- summarized in the appendix that he -- I think he wrote about eight of them to the company and telling them how he felt. He knew we had these headaches. He knew he had a triple fracture of the skull. He had a -- or I think, the record indicates close to a dozen office of legal advice to -- to represent him, but he chose to go ahead on his own.
Speaker: It turned -- it turned out however, did it not that the representations that were made by Barron as to the difficulties of this case because he thought the unseaworthiness rule -- unseaworthiness rule would not apply were mistaken although, being (Voice Overlap) isn't he?
Michael E. Hanrahan: Well, there -- there were two things. Whether or not there was a -- in their petition for rehearing and argue about the mistake on the medical diagnosis. In other words, they would have you believe that the validity of the seaman's release was dependent upon the infallibility of a medical diagnosis. I say that on the medical aspects alone, that their arguments about mistake are vague and hypothetical --
Speaker: Leave -- leave out the medical aspects and address yourself, if you will please to the question, the legal aspects the question (Voice Overlap) --
Michael E. Hanrahan: All right -- all right now --
Felix Frankfurter: -- misrepresentations to the strength of this case or the statement not to misrepresentation, the representation.
Michael E. Hanrahan: The case was decided in 1950 before the Second Circuit's opinion in the Keen case and this Court's opinion on the Boudin case. The Third Circuit when -- have reviewed this case said that the Keen and Boudin cases could not have ex post fact -- facto effect. My argument or just to review what those cases held there -- they held that notice was not a requirement of an assailant's vicious propensities as long as he in fact did have these vicious propensities or peristaltic or homicidal maniac, I think, was the one involved in the Keen case. But again, I say if -- if even this law is considered to have ex post facto effect, Thompson was settling a case of questionable liability. This was a civil case. They could have had a jury here. There was no telling what the jury would have done. Now, we -- we'll admit all through here that this man, Medina who did the assaulting was a feminine. I mean, he had feminine tendencies. The alleged homosexual act that preceded the assault is highly disputed. It's disputed all through the record. There's only the -- the libelant himself was said that such an act took place, but as this Court can go so far as to hold that the ship is unseaworthy merely because an effeminate seaman is employed. I mean, that -- that --
Speaker: That's a question that the Court of Appeals is in reach. They didn't --
Michael E. Hanrahan: That's true.
Speaker: They didn't reach the seaworthiness question and therefore, I suppose if we reverse this case. We probably send it back for him and consider that question, wouldn't it? Or it would be solely might do that.
Michael E. Hanrahan: The defendant there -- yes. That would have been a question. I think the conclusion of law to determine whether or not the ship is unseaworthy merely because an employee is an effeminate seaman.
Speaker: All we got up here at this stage is the validity of the release.
Michael E. Hanrahan: Right.
Speaker: Right.
Earl Warren: But suppose the -- suppose the captain of the ship knew of the characteristics of this man --
Michael E. Hanrahan: I'll admit that.
Earl Warren: And he knew it, they knew it (Voice Overlap) --
Michael E. Hanrahan: -- with effeminate with gait the --
Earl Warren: No, beyond that. Suppose -- suppose they knew the other proclivities of this man other than just having the appearance of being effeminate, would that affect the seaworthiness of the --
Michael E. Hanrahan: I doubt. I am being practical that it would -- it would require almost the psychiatric determination of every seaman before return to ship.
Earl Warren: No. That isn't it. I say suppose the captain knew of his proclivities and in spite of that knowledge, he signed him up to go -- go aboard ship and associate with these other members of the crew. Would you say that affected the --
Michael E. Hanrahan: No.
Earl Warren: Seaworthy?
Michael E. Hanrahan: I don't think so. Not mere effeminateness.
Earl Warren: I didn't say mere effeminacy.
Michael E. Hanrahan: Or -- or actual homo -- natural homosexualist.
Earl Warren: Exactly.
Michael E. Hanrahan: Well, I -- I'm really not prepared to answer that but thinking, as I stand here before you, it's -- it's a disgusting thing to normal people, but whether something that would actually affect the seaworthiness of a ship. I mean the laws, gone into homicidal maniac. I -- I don't think -- the ship would actually be unseaworthy if it had such a -- a man on board. I mean that the seamen are known for their -- their wild endeavors ashore. That doesn't affect the efficient running of a ship. I don't -- I don't think that even if there was a proven -- and the captain had noticed of a homosexualist that affect the ship seaworthiness, to do what it's supposed to do. But again, I'm -- I'm here principally to -- to sustain a release for $4000. Now, $4000 is not one of these old releases where a fellow would lose a finger or something and the company would give him $15. Such considerations would shot the conscience of the Court. But as I say, at the time Thompson signed this release, he had the choice of determining whether or not he would proceed to trial before a jury whether it was perceived in admiralty before a judge. He was equipped with the -- a discharge from the Marine Hospital itself. I -- I would like to get back, Your Honor, to rule out any question of mistake of medical diagnosis here because that -- that is not in this case. When he was discharged months before his signed to release --
Speaker: But so far as I'm concerned, you don't have to take how many times on that. I agree with you on that point. I'd like to put this specific question or because -- perhaps, I haven't made myself clear. The rule of law as it was understood at the time this release was made was that the unseaworthiness doctrine did not apply to this sort of a situation. Is that right? That was before the Second Circuit's decision in the Keen case --
Michael E. Hanrahan: That's right.
Speaker: Right?
Michael E. Hanrahan: Right.
Speaker: And therefore, the representation, however, innocent he was assuming that (Voice Overlap) was to the effect that this man had a difficult case because he would have to prove under the Jones Act the seaworthiness doctrine not being applicable, that the shipowner knew that this man was a homosexual, is that right?
Michael E. Hanrahan: Right.
Speaker: Now, what about a rule of law in this seaman's cases or let me ask you one preliminary question. Does the shipowner knew that this man did not have a lawyer, is that right?
Michael E. Hanrahan: Right.
Speaker: What would you say to a rule of law in the seaman's cases that if a shipowner knowing that a seaman has not got a lawyer makes a representation as to the law that he does so with his own risk?
Michael E. Hanrahan: Such as a -- a proposition taken hypothetically like that it is -- is difficult to answer. I -- I think we have to consider the specific representation. If the company represented have said to him that your chances is one out of a hundred above the collecting on -- on this that the law is stuck against you and it was -- it was really strong there. I -- I think that that would be one thing, but I -- I think if a -- it's a consideration where they talked about the pros and cons and as here, Thompson started a figure of 1500 and this was talked about and it considered the length of time. He have to wait after a trial and possibilities of -- of winning the case because even though the law might have been a mistake it would be before a jury who would --
Speaker: No, but the law -- the question of whether the seaworthiness rule applied if you were representing this seaman would have a great bearing as to the strength of his case, wouldn't it?
Michael E. Hanrahan: Yes -- yes, because the Keen case and the Boudin case were landmark cases.
Speaker: Exactly. And therefore -- oh, therefore, I suggest that when the steamship company knows that it is dealing with a man who is not represented by a lawyer. Is it an unattainable proposition of law to say that in this seaman's cases, if he chooses to make a representation as to the law however innocent, however good faith, he has to stand at all on the risk, take the risk?
Michael E. Hanrahan: Well, I -- I think, Your Honor, that that's under todays circumstances, that's pending over --
Speaker: I'm talking about seaman's cases not --
Michael E. Hanrahan: Yes.
Speaker: Not anything else.
Michael E. Hanrahan: I know -- I know. I mean, with the -- with the way the seaman's slot has been approved, besides attorney's actually retained by the unions. They have counselors on the staff but frequently the -- while the seaman's in the hospital, negotiations will be done by a representative of -- of -- you know -- actually works in the office of the S.I.U. or the N.M.U. We handle sort of the whole thing for them. Now, to expect even on the seaman's case with the facilities they have available today to expect the adjustor for the company who was a layman himself to give him an adequate brief on the law before he signs the releases that -- that it's going pretty far.
Speaker: Well, all he has to do is not to say anything on the law. I'm assuming that this release had this representative of yours, Mr. Barron said nothing about the law would have been a perfectly valid release because I agree with you myself that the question of each of the mistake on the medical evidence is --
Michael E. Hanrahan: Well --
Speaker: I think you're right on that.
Michael E. Hanrahan: -- we get back to this too. Even if it -- on the stand, the length of disability, he was on about January 1930 to about July of 1950, some six odd months. Now, for those months he spent in the various marine hospitals at no cost to himself. So, if there was no liability, get his maintenance and cure. In other words, for the two months, he was out-patient received a few hundred dollars. I mean that's what have been entitled. This was a liability case. So, after his discussion with them, he's given $3700 more which is the whole spirit of negotiating settlement of this sort. I mean, what the seaman and what the (Inaudible) do, would they make not only a joint approximation of future disability or just how badly hurt the fellow is. But the -- the possibilities of winning the case, I don't think there is a lawyer in this Court room that hasn't experienced the situation where he was 99% sure he is going to win a case and just something that he couldn't -- can't explain today, laws I mean. But here, there was certainly adequacy of consideration.
Speaker: Why -- Why don't this man have a lawyer?
Michael E. Hanrahan: I'm sorry?
Speaker: Does the record show why this man didn't have a lawyer?
Michael E. Hanrahan: He didn't want one. He wrote -- he wrote letters himself.
Speaker: I thought you said that the lawyers presented themselves, the union lawyers presented themselves to him.
Michael E. Hanrahan: I don't know whether they were union lawyers or not. I presume they were regular seaman employees, went to the Marine Hospital. I mean, they go there to see their own patients and they talk to the seaman. It was --
Earl Warren: Soliciting business. They were -- were they there soliciting --
Michael E. Hanrahan: Various letters here at the back of the (Voice Overlap) --
Earl Warren: Were they soliciting his business? Is that what they were there for?
Michael E. Hanrahan: Well, I'm not going to accuse them of abilisters (Inaudible), that sort that I mean --
Earl Warren: Well, what -- were they trying to get him to employ?
Michael E. Hanrahan: They were trying to get him to try to get his case, yes.
Earl Warren: Well, sure. They're soliciting his business weren't they?
Michael E. Hanrahan: They do.
Earl Warren: You wouldn't --
Michael E. Hanrahan: I mean to(Voice Overlap) --
Earl Warren: You wouldn't hold anything against a man for not giving in to set persuasion, would you?
Michael E. Hanrahan: Not giving in, no. No. That's quite to answer, Your Honors question about the representations made. I think under -- we have reached the point today with the advancement in union organization, the facilities they seem to have. The ability to retain counsel that -- that just as the Garrett case says that the determining factor in the establishment of the release is valid and not -- it's not -- it is the nature of the legal and -- and medical advice available to him. That's -- that's what we have to go back. That's what I urge, a reiteration of that principle.
Earl Warren: Well, don't you think you are taking into consideration also, Mr. Hanrahan, the -- the nature of the injury that the man has? Now, you were talking a little while ago about a man losing a finger. Don't you think that they ought to be a lot more consider -- a lot more careful when they're dealing with a man who has had a severe blow on the head that went through his skull and they gave him a mental condition than they would if he happened to have lost a finger and they were negotiating?
Michael E. Hanrahan: I do and that -- that's a question that I wanted to answer before, that there has been a or a lot of vagueness in resulting to hypothesis when talking about the medical aspects of this case and the mistakes in prognosis, because when he got out of the Marine Hospital before signing the release. He was given a slip by the Marine Hospital and what could be more independent than our own United States Public Health Service. That he had this fractured skull and encephalopathy which is a brain damage due to trauma. But they said he'd be able to go back to work in a month. Nobody denies that he had fractured skull that he knew it and he was dealt with accordingly. And as a matter of fact, they adjusted and then send him to a company doctor who predicted a longer disability than the Marine Hospital that is three months. And a permanent disability which the Marine Hospital -- and which the man was informed, getting back to representations, he is told this by the adjustor. And then the man goes back to work and this all talks in petitioners briefs that he wasn't able to sell that it's high ratings as he could before, but that's contradicted in the record because I've put in the records in the grace line and the Moore-McCormack line showing that he could work or two years later as chief cook, which was two degrees higher than he had worked in that other considerably higher wage per month. In the time that elapsed from the date of the assault and was discharged from the hospital to the Marine Hospital, he did go back to the Marine Hospital on four occasions but they weren't for this head condition. They were urethritis, kidney trouble, ulcers and a penile sore coming that fall in the appendix abstracts from these various marine hospitals with the exception, that a week before the trial, his attorney sent him over to the Marine Hospital and he took two out-patient treatments there. And that -- that's all I know, just asked for treatments. And there, the diagnosis which is also in the record says, "No evidence of fracture or intracranial pressure." Those were the abstracts of the last visit proceeding the trial.
Hugo L. Black: May I ask you whether the Court of Appeals -- did the Court of Appeals upset to any extent, the findings of the District Court?
Michael E. Hanrahan: Yes. Well, they -- they take -- they take those -- no. I -- I see what you mean. They -- they take -- they accept -- they take those findings and then say it's fairly erroneous as a matter of law.
Hugo L. Black: And did the Court -- and did the District Court find as a fact that the injured man had been induced to sign the release, put an adequate sum by the agent of the shipping company the two statements that were wrong, one of fact and one of law, is that what --
Michael E. Hanrahan: One -- one --
Hugo L. Black: -- the District Court (Voice Overlap) --
Michael E. Hanrahan: The -- the only actual representation here as I quote --
Hugo L. Black: On page --
Michael E. Hanrahan: They do say in the opinion that he -- that Barron, the claim agent, said he had a weak case. But --
Hugo L. Black: They say that that the result of this, incorrect. No intentional -- not intentional default statements of both facts and law to Thompson. This man unrepresented by counsel without any independent medical advices on signing for release. And it is clear that defendant's agent in insisting that Thompson's is practically well did induce Thompson to sign the release for the inadequate sum. Was that upset in any way?
Michael E. Hanrahan: Well, it was upset to the extent that the Circuit Court consider the release --
Hugo L. Black: They held as a matter of law that the District Court was wrong but they did not upset, his findings of fact did it, to the effect that this release had been induced by misstatements, not intentionally false both as to the extent of the injuries and the adequacy of the amount and as to the --
Michael E. Hanrahan: They do -- they do --
Hugo L. Black: -- and as to the fact of liability.
Michael E. Hanrahan: They do say that.
Hugo L. Black: And that we have to accept that, do we not? Because the Court of Appeals accepted it and therefore, we'd reach the question. Do we not, as to whether when a man, a seaman without lawyer has been induced to sign a release by the claim agent who not -- who honestly, we say honestly but not -- not dishonest, but honestly makes two misstatements to the man. One, it's got a weak case under the law and the other --
Michael E. Hanrahan: Oh, the other wasn't --
Hugo L. Black: -- and -- and the other that you --
Michael E. Hanrahan: The other was a fact --
Hugo L. Black: -- practically well.
Michael E. Hanrahan: Well, I don't think he -- actually, according to the record, it didn't tell he's actually well (Voice Overlap) --
Hugo L. Black: He didn't use that language --
Michael E. Hanrahan: -- 10% disability --
Hugo L. Black: -- but that's what the Court found from the facts. We have to accept that, do we not? It hadn't been upset for the Court --
Michael E. Hanrahan: That is Judge Hartshorne opinion --
Hugo L. Black: Yes. So, we -- we reached the question as to whether release signed under those conditions, statements were made that were not correct, both of fact and of law to a man like this without a lawyer, whether that as a question of law, it should set aside the release. That's the dispute -- that's the difference between a Court of Appeals and the District Court, isn't it?
Michael E. Hanrahan: I -- I think that's a fair statement. But in winding up, I just --
Harold Burton: Well, may I ask you --
Michael E. Hanrahan: -- like to --
Harold Burton: -- Mr. Hanrahan, here?
Michael E. Hanrahan: Yes, sir.
Harold Burton: May I ask you, what mistake of fact was represented to the seaman. What is the --
Michael E. Hanrahan: The Circuit --
Harold Burton: Mistake of opinion.
Michael E. Hanrahan: Judge Hartshorne said they had a weak case and that he was -- I -- I wish I had the -- the actual statement, Judge Hartshorne (Inaudible). He thought he was more disable than --
Harold Burton: But if the agent said that he had a weak case, is -- is that a representation of fact or opinion overall?
Michael E. Hanrahan: I think it's a -- it's a question of opinion.
Harold Burton: Was there any misrepresentation? Just to the honest, misrepresentation of any fact?
Michael E. Hanrahan: There was no discussion between Barron and Thompson. I thought the Keen case before and the Boudin case because they hadn't been decided then, but just -- they talked generally about the solve cases and how long you have to wait for trial, whether or not he'd win the case and they discussed amounts beginning with $15,000 and brought it down to the -- for the (Inaudible)
Hugo L. Black: Well is this --
Michael E. Hanrahan: But I --
Hugo L. Black: Is this statement by the District Court correct and has it been upset in any event, that Thompson settled a conference for Barron latter or defendants or other agent told Thompson of this prognosis of Dr.Farr now found to be incorrect and it has been found to be incorrect?
Michael E. Hanrahan: Well, Judge Hartshorne mentioned that but that were was no real finding of how they were incorrect because he had worked -- he had worked --
Hugo L. Black: Well then, did the Court of Appeals upset this finding of the District Court?
Michael E. Hanrahan: No, because they took the --
Hugo L. Black: Alright. Now -- now, let us go on. And Barron refused to consider any greater settlement figure than $4000 because he insisted to Thompson that Thompson was practically well then. Barron admits that if he hadn't then known that Dr.Farr's prognosis was incorrect and that Thompson's future would be serious, as it has now turned out to be. He would not have evaluated his case at $4000, but would have told Thompson to get a lawyer before he settle.
Michael E. Hanrahan: That -- that was an answer to a hypothetical question put by --
Hugo L. Black: What you -- what you have isn't it, a finding of fact by the district judge that this man did make his statement, which was not true, but which he thought was true and that that induced this man without his lawyer to sign the release. And the Court of Appeals said, held that even though without offsetting that time that even though this statement was made and was not correct. It was an honest misstatement and that as a matter of law, the release wouldn't be set aside while making an honest mistake of the fact, even though it abused the man to settle his case with an adequate sum.
Michael E. Hanrahan: I think that's incorrect statement. I'd just like to say these few words of encouragement.
Felix Frankfurter: Before you sit down, would you tell me concern (Inaudible) to your petition for certiorari, have you got your petition?
Michael E. Hanrahan: My petition for certiorari? (Voice Overlap)
Felix Frankfurter: Well -- whatever the opinion is, you turn to the opinion of the Court of Appeals and just ask for information. The copy that I have (Inaudible) says similarly this “misrepresentation” (Inaudible) I'd like to know (Inaudible) why is the word misrepresentation a quotable word?
Michael E. Hanrahan: You read from the Circuit Court's opinion --
Felix Frankfurter: And, have you got the opinion there? (Inaudible) Well, in the opinion, perhaps you have it in your mind. The opinion says similarly quote misrepresentation in quotation. I want to know the source of that quotation (Inaudible) Never mind. I don't want to take your time.
Michael E. Hanrahan: I'm sorry. I can't just --
Felix Frankfurter: All right.
Michael E. Hanrahan: -- spot find it.
Earl Warren: So let me --
Michael E. Hanrahan: But our --
Felix Frankfurter: (Inaudible)
Michael E. Hanrahan: Our contention throughout here is for release such as this is set aside, the only way that those sides can feel that a seaman or at least as effectively board is to insist that he have an attorney, insist that he have his own doctor and virtual approval of a -- of a court. I urge this Court --
Felix Frankfurter: What you say is that the rule of law, that no release should be deemed valid, unless the claimant, suppose actively represented by a lawyer and the claimant had a doctor of his own choice. What do you say to this Court announcing such a rule of law? In order to release (Voice Overlap) --
Michael E. Hanrahan: Well, I --
Felix Frankfurter: So that the lawyer did take care of anything that's said about the wage or the -- or the severity of the case as a matter of law and the doctor can talk to the phraseology.
Michael E. Hanrahan: I think it describes the whole purpose of a release. A release as a joint approximation for -- and frequently valid and most -- most of the time it's valid between two lay people, that's the whole purpose of it. The whole purpose of the case that the release that followed the Garrett case --
Felix Frankfurter: But that would -- that might your answer. It is an appropriate assumption if the people are dealing it on (Inaudible) In here, you haven't got people dealing (Inaudible)
Michael E. Hanrahan: I -- I think you do, Your Honor, and the -- the opportunities this man had, the independent medical advice of the Marine Hospital, we have the (Inaudible) the fact that he had executed releases before. He knew his way around. He knew how to negotiate a settlement. He had done it before in the past.
Earl Warren: But do you think that the -- your claims adjustor and the -- and the -- an unschooled seaman or layman in the same sense so far as this case is concerned?
Michael E. Hanrahan: Substantially, yes. Particularly, today with the education orientation that the --
Earl Warren: Do this man have -- do this man have much education?
Michael E. Hanrahan: I don't think that was ever brought out in the record, but his -- his letters themselves integrate of -- a fair amount of literacy (Voice Overlap) could be of the education, the claim agent had, no.
Earl Warren: You mean, he could write?
Michael E. Hanrahan: Put thoughts together and understand what was wrong with him -- what he had to accomplish.
Earl Warren: Thank you.
Silas Blake Axtell: I understand I have a moment and I think it's quite important.
Earl Warren: Yes. You better step to the lectern mister, so you can be heard --
Silas Blake Axtell: I think it's quite important that I speak concerning the state of the law at the time Judge Hand made what we -- what a lot of people thought was new law in the Keen case. He did not. He said he used the words res integra. But the truth is that he overlooked the decision of the Ninth Circuit in the Ross case reported 299 F.2d. Your Honor, Chief Justice, remember Henry (Inaudible) of California, Attorney of the Old Sailors' Union of the Pacific, the case of (Inaudible), the mate was notorious as a bruiser he had (Inaudible) and he drove this man around and beat him. Beat him so that he blinded him.
Earl Warren: Your time is up.
Silas Blake Axtell: It does.
Earl Warren: Really, that isn't --
Silas Blake Axtell: Well, that was the law --
Earl Warren: Yes.
Silas Blake Axtell: -- when they settle this case and it was their duty to know it.