9 Opinion of the Court. v. Georgia, supra, at 405–406. See also Phyle v. Duffy, supra. To protect itself society must have power to try, convict, and execute sentences. Our legal system demands that this governmental duty be performed with scrupulous fairness to an accused. We cannot say that it offends due process to leave the question of a convicted person's sanity to the solemn responsibility of a state's highest executive with authority to invoke the aid of the most skillful class of experts on the crucial questions involved. This leaves the contention that the Georgia statutes do not make provisions for an adversary hearing in which a convicted defendant can be present by friends, attorneys, or in person, with the privilege of cross-examining witnesses and offering evidence. Whether this Governor declined to hear any statements on petitioner's behalf, this record does not show. We would suppose that most if not all governors, like most if not all judges, would welcome any information which might be suggested in cases where human lives depend upon their decision. Both the Nobles and the Phyle cases stand for the universal common-law principle that upon a suggestion of insanity after sentence, the tribunal charged with responsibility must be vested with broad discretion in deciding whether evidence shall be heard. This discretion has usually been held nonreviewable by appellate courts. The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence. We cannot say that the trust thus reposed in judges should be denied governors, traditionally charged with saying the last word that spells life or death. There is no indication 4 See cases collected in Notes, Ann. Cas. 1916E, 424 et seq.; 49 A. L. R. 801 et seq.; 38 L. R. A. 577 et seq. FRANSPORTER :. that either the Governor or the physicians who acted on petitioner's application viclated the humanitarian policy of Georgia against execution of the size. We hold that the Georgia statute as appled is not a denial of due process of law. Aformed. MR. JUSTICE DOUGLAS took te part in the sonst leration or decision of this case. MR. JUSTICE FRANKFURTER. dissenting In the history of murder, the onset of sanity while awaiting execution of a death sentence is not a rare phenomenon. The legal problems which such supervening insanity raises happily do not involve explorations of the pathological processes which give rise to the eonflict between so-called legal and medical insanity. See M'Naghten's Case, 10 C1. & F. 200 1843: Glueck, Mental Disorder and the Criminal Law pessim · 1925); Minutes of Evidence before the 1949 Royal Commission on Capital Punishment. The case now before the Court presents a familiar constitutional issue placed in the setting of a claim of supervening insanity, The question is this: may a State without offending the Due Process Clause of the Fourteenth Amendment put to death one on whose behalf it is claimed that he became insane while awaiting execution. if all opportunity to have his case put is denied and the claim of supervening insanity is rejected on the basis of an er parte inquiry by the Governor of the State? This issue was before the Court very recently, but in the circum#tances the matter was not ripe for decision. Phyle v. Duffy, 334 U. S. 431. On the record before us the issue must be met. Unlike the situation in Phyle v. Duffy, it cannot be urged that the Georgia judgment under 9 FRANKFURTER, J., dissenting. review leaves open the opportunity for a hearing which was given when Phyle v. Duffy went back to the California courts. 34 Cal. 2d 144, 208 P. 2d 668. We cannot avoid now deciding whether one awaiting electrocution who makes a substantial claim that he has become insane can be denied opportunity to address the mind of the Governor, or those who advise him, in order to establish the fact of such insanity. In Phyle's case, the Court recognized "the gravity of the questions here raised under the due process clause." 334 U. S. at 439. Apparently between June 1948 and today the gravity seems to have been dispelled. These grave questions are now almost summarily answered. It cannot be due to the weightiness of the argument presented at the bar of this Court for none was made here by Georgia, and its slight brief hardly discusses the problems. The immediate question before us depends on the view one takes of the legal right of a State to execute a person become insane after sentence. If the Due Process Clause of the Fourteenth Amendment does not bar the State from infliction of the death sentence while such insanity persists, of course it need make no inquiry into the existence of supervening insanity. If it chooses to make any inquiry it may do so entirely on its own terms. If the Due Process Clause does limit the State's power to execute such an insane person, this Court must assert the supremacy of the Due Process Clause and prohibit its violation by a State. The Court in an easy, quick way puts this crucial problem to one side as not before us. But in determining what procedural safeguards a State must provide, it makes all the difference in the world whether the United States Constitution places a substantive restriction on the State's power to take the life of an insane man. If not to execute is merely a benevolent withholding of the 874433 0-506 FRANKFURTER, J., dissenting. 339 U.S. right to kill, the State may exercise its benevolence as it sees fit. But if Georgia is precluded by the Due Process Clause from executing a man who has temporarily or permanently become insane, it is not a matter of grace to assert that right on behalf of the life about to be taken. If taking life under such circumstances is forbidden by the Constitution, then it is not within the benevolent discretion of Georgia to determine how it will ascertain sanity. Georgia must afford the rudimentary safeguards for establishing the fact. If Georgia denies them she transgresses the substance of the limits that the Constitution places upon her. Does the Due Process Clause then bar a State from executing a man under sentence of death while insane? It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due process is that which comports with the deepest notions of what is fair and right and just. The more fundamental the beliefs are the less likely they are to be explicitly stated. But respect for them is of the very essence of the Due Process Clause. In enforcing them this Court does not translate personal views into constitutional limitations. In applying such a large, untechnical concept as "due process," the Court enforces those permanent and pervasive feelings of our society as to which there is compelling evidence of the kind relevant to judgments on social institutions. That it offends our historic heritage to kill a man who has become insane while awaiting sentence cannot be gainsaid. This limitation on the power of the State to take life has been part of our law for centuries, recognized during periods of English history when feelings were more barbarous and men recoiled less from brutal 9 FRANKFURTER, J., dissenting. action than we like to think is true of our time. Due process is itself "a historical product," Jackman v. Rosenbaum Co., 260 U. S. 22, 31, and it requires no expansion of its purposes to find in the Fourteenth Amendment a restriction upon State action that carries such impressive credentials of history as does that forbidding the State to kill an insane man though under sentence of death: "It was further provided by the said Act of 33 H. 8. that if a man attainted of treason became mad, that notwithstanding he should be executed; which cruell and inhumane law lived not long, but was repealed, for in that point also it was against the common law, because by intendment of law the execution of the offender is for example, ut poena ad paucos, metus ad omnes perveniat, as before is said: but so it is not when a mad man is executed, but should be a miserable spectacle, both against law, and of extreame inhumanity and cruelty, and can be no example to others." Coke, Third Institutes 6 (1644). "And it seems agreed at this Day, That if one who has committed a capital Offence, become Non Compos before Conviction, he shall not be arraigned; and if after Conviction, that he shall not be executed." 1 Hawkins, Pleas of the Crown 2 (1716). '. . . for nothing is more certain in Law, than that a Person who falls mad after a Crime suppos'd to be committed, shall not be try'd for it; and if he fall mad after Judgment, he shall not be executed: tho I do not think the reason given for the Law in that Point will maintain it, which is, that the End of Punishment is the striking a Terror into others, but the execution of a Madman had not that effect; which is not true, for the Terror to the |