Opinion of the Court. 291 U.S. or an Eurasian, his ancestors partly Europeans and partly Asiatics." The probability is thus apparent that the transfer of the burden may result in grave injustice in the only class of cases in which it will be of any practical importance. The statute does not say that the defendant shall be acquitted if he does not know his racial origin and is unable to make proof of it. What the effect of such a law would be, we are not required to consider. To the contrary, the statute says in substance that unless he can and does prove it, he will have failed to discharge his burden, and will therefore be found guilty. Moreover, if he were to profess ignorance, and ignorance were an excuse, the trier of the facts might refuse to credit him. Holmes, J., in Ah How v. United States, supra, p. 76. There can be no escape from hardship and injustice, outweighing many times any procedural convenience, unless the burden of persuasion in respect of racial origin is cast upon the People. What has been written applies only to those provisions of the statute that prescribe the rule for criminal causes. bodies. California Departments of Industrial Relations, Agriculture and Social Welfare, "Mexicans in Californa," Report by Governor C. C. Young's Mexican Fact Finding Committee, San Francisco, Cal., 1930, pp. 41, et seq. The treaty of Amity, Commerce, and Navigation of 1831 between the United States and Mexico gives to the nationals of either country the privilege of owning personal estate in the other (Art. XIII), but contains no provision in respect of the ownership of land. This treaty was revived after the Mexican War by Article XVII of the Treaty of Guadalupe Hidalgo (1848). It was terminated by Mexico in November, 1881. See Malloy, Treaties, Vol. 1, p. 1085. As to the appearance of children of marriages between Japanese and the white races, see: S. C. Gulick, The American Japanese Problem, p. 153; Iyenaga and Sato, Japan and the California Problem, p. 157. Other considerations may or may not apply where the controversy is civil. We leave that question open. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. SNYDER v. MASSACHUSETTS. CERTIORARI TO THE SUPERIOR COURT IN AND FOR THE COUNTY OF MIDDLESEX, MASSACHUSETTS. No. 241. Argued November 7, 1933. Decided January 8, 1934. 1. So far as the Fourteenth Amendment is concerned, the presence of the defendant in a prosecution for felony is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only. P. 105. 2. In a state prosecution for murder, the accused was denied permission to attend a view, which was ordered by the court on motion of the prosecution, at the opening of the trial. The jurors, under a sworn bailiff, visited the scene of the crime, accompanied by the judge, the counsel for both parties and the court stenographer. The counsel, acting as showers by the permission of the judge, pointed out particular features of the scene and asked the jurors to observe them, but there was no statement of the evidence. A stenographic record was made of everything that was said or done. The defendant at the trial virtually admitted that the place visited was the right one; and if there had been failure to point out anything material, he had full opportunity to prove the fact and ask for another view. Held, that the viewing in the absence of the accused was not a denial of due process under the Fourteenth Amendment. P. 108. 3. Statements to the jury pointing out the specific objects to be noticed have been a traditional accompaniment of a view in England and in this country, and this procedure was not displaced by the Fourteenth Amendment. P. 110. 4. Designation of counsel for the parties as the showers is also an ancient practice and can not be prejudicial to the defendant. P. 113. 5. Assuming that the knowledge derived from a view is evidence, still a view is not a trial nor any part of a trial in the sense in which a trial was understood at common law. P. 113. 46305°-34-7 Argument for Petitioner. 291 U.S. 6. To transfer to a view the constitutional privileges applicable to a trial would be forgetful of history. P. 114. 7. Irrespective of whether a view be labeled as part of the "trial,” and the knowledge so derived as "evidence," the question whether exclusion of the defendant, not by a statutory mandate but by a discretionary ruling of the court, violates due process of law, is determined by conceptions of fairness and justice applied to the particular facts. P. 114. 8. A statement made by the judge during a view in the absence of the defendant, to the effect that one of the structures pointed out was not there at the homicide,-held improper, but harmless, both because it was not material and because it was confirmed by the accused and his counsel at the trial. P. 118. 9. A view constitutionally taken in the absence of the defendant, is not to be adjudged unconstitutional because the court told the jury it was evidence. P. 121. 282 Mass. 401; 185 N.E. 376, affirmed. CERTIORARI, 290 U.S. 606, to review a judgment entered on the affirmance of a conviction of murder. Mr. A. C. Webber, with whom Messrs. Henry P. Fielding and L. H. Weinstein were on the brief, for petitioner. The proposition that the right of personal presence of the accused in a capital case only applies to testimony of witnesses, is contrary to reason and to all human instincts of justice. The position that the encroachment on constitutional rights of the petitioner must occur within the limits of the trial court room is untenable, particularly in view of what actually took place at the trial of petitioner. As to the practical effect of what the jury saw and heard at the view, no distinction was made between knowledge thus acquired and other evidence introduced in the course of the trial. Thus the jury were authorized to use such knowledge to bring in a conviction of first degree murder and it must be assumed that they did so. The fundamental right and importance of personal presence of the accused at a criminal trial, particularly in 97 Argument for Petitioner. capital cases, has been stressed by judicial expression whenever occasion has arisen. Lewis v. United States, 146 U.S. 370; Hopt v. Utah, 110 U.S. 574; Schwab v. Berggren, 143 U.S. 444. The principle has its roots in the early history of the common law. See Rex v. Ladsingham, Sir T. Raymond Reports, 193 (1862); 1 Cooley, Const. Lim., 8th ed., p. 667; 1 Bishop, New Crim. Pro., 2d ed., § 273; French v. State, 85 Wis. 400; Maurer v. State, 43 N.Y. 1; 1 Zoline, Federal Crim. Law & Pro., 254. The protection of the Massachusetts Declaration of Rights, Art. 12, and General Laws of Massachusetts, c. 278, § 6, is but declaratory of the common law and is found generally in all state constitutions. Commonwealth v. McCarthy, 163 Mass. 458; Commonwealth v. Cody, 165 Mass. 133; Hooker v. Commonwealth, 13 Grat. 763. Such rights do not relate to matters merely procedural, even though they may be the subject of waiver. Nor are the merits of the case involved when paramount substantial rights are invaded. Commonwealth v. Harris, 231 Mass. 584; Lebowitch v. Commonwealth, 235 Mass. 357; Powell v. Alabama, 287 U.S. 45. See Parker, C.J., in Commonwealth v. Parker, 2 Pick. 550. Commonwealth v. Knapp, 9 Pick. 496. The right of personal presence comes within the pale of "an immutable principle of justice which is the inalienable possession of every citizen of a free government." Twining v. New Jersey, 211 U.S. 78; Holden v. Hardy, 169 U.S. 366. All the fundamental safeguards of the criminal law against oppression and injustice rest upon broad grounds of fair play. They are not to be narrowed by technical interpretation, or to be sacrificed to mere expediency. Moore v. Dempsey, 261 U.S. 86; Cooke v. United States, 267 U.S. 517; Tumey v. Ohio, 273 U.S. 510; Lebowitch v. Argument for Petitioner. 291 U.S. Commonwealth, 235 Mass. 357; Powell v. Alabama, 287 U.S. 45. Due process comprehends a fair and just hearing and a full and adequate opportunity for defense. Powell v. Alabama, supra. Such protection, to be more than meaningless, must assure an accused full opportunity, to see through his own eyes, hear through his own ears, and to act through his own powers of reasoning,-these are not infrequently his best means to establish his innocence. No one can be substituted to exercise these faculties for him. Massachusetts statutes have never interfered with the fundamental right of a defendant in a criminal case to be present at a view. General Laws, c. 278, § 6, provides that "A person indicted for a felony shall not be tried unless he is personally present at the trial." And the only statute relating to view in a criminal case was passed in 1836, and in the simplest language thus: "The court may order a view by a jury impanelled to try a criminal case." Rev. Stats., 1836, c. 137, § 10. No limitation upon the legislative power of Massachusetts is sought to be imposed in this case. It is not conceded, however, that such limitation upon state action does not exist under the Fourteenth Amendment. Twining v. New Jersey, 211 U.S. 78, 99. The relief sought by the petitioner, therefore, does not conflict with the principles in Hurtado v. California, 110 U.S. 516, and Maxwell v. Dow, 176 U.S. 581, and Holden v. Hardy, 160 U.S. 366, and Twining v. New Jersey, 211 U.S. 78, and cases there collected. Even in rate hearings, involving property rights and not life and liberty, the right to a full hearing is within the protection of the due process clause of the Fourteenth Amendment. "Manifestly there is no hearing when the party does not know what evidence is offered or considered." Interstate Commerce Comm'n v. Louisville & |