This is an appeal from the judgment of the district court dismissing the relator’s petition for habeas corpus.
The relator, Elliott, was tried in the Court of Oyer and Terminer, Philadelphia County, Pennsylvania, on the charge of murder. He was represented by counsel throughout the trial and throughout the subsequent proceedings. Indeed, counsel have been very vigilant in looking after his interests. After several days of trial, he changed his plea from not guilty to guilty. Pursuant to Pennsylvania law, three judges determined that the murder was murder of the first degree and then sat to consider the question whether the penalty to be suffered by the prisoner should be life imprisonment or death. As authorized *924by a Pennsylvania statute, Act of May 2, 1933, P.L. 224, the court called upon a psychiatrist to “guide” it1 with regard to the mental condition of the prisoner. The court appointed Dr. William Drayton, Jr. Dr. Drayton had been chief of the Philadelphia General Hospital psychiatric department since 1926, neuropsyehiatrist in the Philadelphia Municipal Court since 1922, and associate professor of neuropsychiatry in the Graduate School of Medicine of the University of Pennsylvania.
To Dr. Drayton was turned over a file containing much of the prisoner’s medical, penal and psychiatric history, which the court requested him to interpret. One member of the court stated to defendant’s counsel:
“You are putting something [hospital records] on the record that we know we cannot read or interpret * * * I would only agree to the appointment of a psychiatrist by the Court and he professionally would interpret that record and that would be the basis of the history of this man; further that he would come into Court and translate that record into understanding terms.”
Dr. Drayton’s report, dated July 6, 1950, was unfavorable to the prisoner. He advised the court that Elliott
“is probably no higher mentally than the middle grade moron scale * * *. In addition to being mentally defective in the moron level, it is evident that this man is a fabricator of the first water * * *. He shows no evidence of being mentally ill.”
The court sentenced Elliott to death. He took an appeal and the judgment was affirmed, Commonwealth v. Elliott, 1952, 371 Pa. 70, 89 A.2d 782. Subsequently, his petition to the Court of Common Pleas for a writ of habeas corpus was denied and again he appealed to the Supreme Court of Pennsylvania. Again judgment was affirmed, Commonwealth ex rel. Elliott v. Baldi, 373 Pa. 489, 96 A.2d 122, certiorari denied, 1953, 345 U.S. 976, 73 S.Ct. 1125, 97 L.Ed. 1391. He then, through his lawyers, applied to the federal district court for a writ of habeas corpus, which was denied in a thoughtfully considered opinion by Chief Judge Kirkpatrick.
Preliminarily, it is asserted that a writ of coram nobis is still available to relator in the Pennsylvania courts and that, thus, he has not exhausted his state remedies. However, we think that, although only the writ of habeas corpus was before it, the Supreme Court of Pennsylvania in effect disposed of relator’s claims to both writs in its second opinion. This is not completely clear. The court speaks of possible remedies, in the situation to which it refers, as being a writ of habeas corpus or a writ of coram nobis, 373 Pa. at page 493, 96 A.2d at page 124. The scope of coram nobis is dealt with by footnote; habeascorpus is discussed more fully. But at. the end of the opinion the court, in language quoted later herein, makes an all-inclusive statement to dispose of Elliott’s case.
There are, then, two problems before us on this appeal.
I.
One has to do with the constitutionality of this whole proceeding in federal court. The State of Pennsylvania, in a brief joined in by the Attorneys General of forty other states, contends that this whole process of review by inferior federal courts is unconstitutional and, of course, therefore void. This Court is unanimous in rejecting-that argument.
The procedure followed in the present case, and others involving habeas corpus, applications by persons held in custody after conviction in state courts, is set out in the federal statutes. The Ha-beas Corpus Act (28 U.S.C. § 2241 and following) gives authority for issuance of a writ when a prisoner “is in custody-in violation of the Constitution or laws. *925or treaties of the United States * *. ” Present section 2254 provides that an applicant must have first exhausted his state remedies. The provision allowing federal courts to extend the protection of habeas corpus to those in state custody came into the law in 1867.2 “Prior to the Civil War, habeas corpus was available in the United States courts, barring limited exceptions, only for those in federal custody.”3 The constitutionality of the wider coverage was very clearly declared by Mr. Justice Harlan, speaking for the Court in Ex parte Royall, 1886, 117 U.S. 241, 249, 6 S.Ct. 734, 739, 29 L.Ed. 868:
“But as the judicial power of the nation extends to all cases arising under the Constitution * * * no doubt can exist as to the power of Congress thus to enlarge the jurisdiction of the courts of the Union * * *. That the petitioner is held under the authority of a State cannot affect the question of the power or jurisdiction of the Circuit Court to inquire into the cause of his commitment, and to discharge him if he be restrained of his liberty in violation of the Constitution.”
And in Frank v. Mangum, 1915, 237 U.S. 309, 331, 35 S.Ct. 582, 588, 59 L.Ed. 969, Mr. Justice Pitney said:
“There being no doubt of the authority of the Congress to thus liberalize the common law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him.”
Now the Commonwealth of Pennsylvania attacks the constitutionality of the 1867 extension of the habeas corpus provisions. It minimizes the forthright statement from Ex parte Royall as dictum. With this we disagree. We think it one of the bases of decision. But whether decision or dictum the correctness of its doctrine may of course be challenged again.
The Commonwealth argues that Congress may not empower a federal court to re-examine findings of fact by state tribunals otherwise than by ordering a new trial, and points to the Seventh Amendment.4
We do not find in this proceeding for habeas corpus any re-examination of facts found by a state court. Our problem is to determine whether the things that were done in the state court in prosecuting a man for a criminal offense were so unfair as to deprive him of a right under the Constitution of the United States. A reference to the Seventh Amendment seems to us wide of any mark to be shot at here. This for several reasons.
In the first place no facts were tried by a jury or by the court, for Elliott pleaded guilty. Again, Moore makes it clear that the Seventh Amendment was *926intended to apply only to civil cases.5 Third, the argument fails to distinguish between review of trial of facts and the question of violation of constitutional rights of one held in custody. Two Supreme Court quotations make this clear.
Thus in 1807 Chief Justice Marshall stated in Ex parte Bollman, 4 Cranch 75, 101, 8 U.S. 75, 101, 2 L.Ed. 554:
“It has been demonstrated at the bar, that the question brought forward on a habeas corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned, is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore, these questions are separated, and may be decided in different courts.”
Many years later, Mr. Justice Frankfurter stated in Watts v. Indiana, 1949, 338 U.S. 49, 50-51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801:
“On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple. But ‘issue of fact’ is a coat of many colors. It does not cover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court’s adjudication.”
We have the same difficulty with the second point urged by counsel for . the Commonwealth. He argues that unless the district court be regarded as exercising an appellate revisory jurisdiction over the state courts this is a .suit against Pennsylvania and beyond the federal judicial power. It is hardly necessary to say that we have no intension of going beyond constitutional judicial power in sanctioning a suit against .the state. But we think to argue that the habeas corpus proceeding is a suit against Pennsylvania is not an accurate way to describe its nature. From the beginning habeas corpus has been the means by which one who claims to have been held in illegal custody of another has the right to have the legality of his custody determined. The writ proceeds against the custodian. If it is found the custody is illegal, the custodian is directed to discharge the person detained. See Ex parte Tom Tong, 1883, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826; Cross v. Burke, 1892, 146 U.S. 82, 13 S.Ct. 22, 36 L.Ed. 896; McNally v. Hill, 1934, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. The discussion of habeas corpus in Blackstone6 shows clearly that author’s conception of the writ is not a suit against the crown. Rather “the king is at all times entitled to have an account why the liberty of any of his subjects is restrained” and “the extraordinary power of the crown is called in to the party’s assistance.”7 Note also the language of Mr. Justice Peckham, speaking for the Court, in Ex parte Young, 1908, 209 U.S. 123, 167-168, 28 S.Ct. 441, 457, 52 L.Ed. 714. He is speaking of the supreme authority which arises from the Constitution:
“This supreme authority * * is nowhere more fully illustrated ‘than in the series of decisions under the Federal habeas corpus statute (§ 753, Rev. Stat.), in some of which cases persons in the custody of state officers for alleged crimes *927against the State have been taken from that custody and discharged by a Federal court or judge, because the imprisonment was adjudged to be in violation of the Federal Constitution. The right to so discharge has not been doubted by this court, and it has never been supposed there was any suit against the State by. reason of serving the writ upon one of the officers of the State in whose custody the person was found. In some of the cases the writ has been refused as matter of discretion, but in others it has been granted, while the power has been fully recognized in all.”
And see Mr. Chief Justice Vinson’s discussion in Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 689-690, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628:
“There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a suit against the sovereign. * * *
“A second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign’s name is claimed to be unconstitutional. Actions for habeas corpus against a warden and injunctions against the threatened enforcement of unconstitutional statutes are familiar examples of this type. Here, too, the conduct against which specific relief is sought is beyond the officer’s powers and is, therefore, not the conduct of the sovereign.”8
There seems nothing more for us to add to these very positive statements.
Since 1867 the Habeas Corpus Act has been availed of in many cases where the custody called into question has been that exercised by a state officer over a prisoner convicted of crime. The following is a partial list of such cases. Holden v. Minnesota, 1890, 137 U.S. 483, 11 S.Ct. 143, 34 L.Ed. 734; In re Shibuya Jugiro, 1891, 140 U.S. 291, 11 S.Ct. 770, 35 L.Ed. 510; McKane v. Durston, 1894, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; Andrews v. Swartz, 1895, 156 U.S. 272, 15 S.Ct. 389, 39 L.Ed. 422; Bergemann v. Backer, 1895, 157 U.S. 655, 15 S.Ct. 727, 39 L.Ed. 845; Kohl v. Lehlback, 1895, 160 U.S. 293, 16 S.Ct. 304, 40 L.Ed. 432; Craemer v. Washington State, 1897, 168 U.S. 124, 18 S.Ct. 1, 42 L.Ed. 407; Crossley v. California, 1898, 168 U.S. 640, 18 S.Ct. 242, 42 L.Ed. 610; Storti v. Massachusetts, 1901, 183 U.S. 138, 22 S.Ct. 72, 46 L.Ed. 120; Rogers v. Peck, 1905, 199 U.S. 425, 26 S.Ct. 87, 50 L.Ed. 256; Felts v. Murphy, 1906, 201 U.S. 123, 26 S.Ct. 366, 50 L.Ed. 689; Valentina v. Mercer, 1906, 201 U.S. 131, 26 S.Ct. 368, 50 L.Ed. 693; Hunter v. Wood, 1908, 209 U.S. 205, 28 S.Ct. 472, 52 L.Ed. 747; Frank v. Mangum, 1915, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Collins v. Johnston, 1915, 237 U.S. 502, 35 S.Ct. 649, 59 L.Ed. 1071; Moore v. Dempsey, 1923, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Knewel v. Egan, 1925, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; United States ex rel. Kennedy v. Tyler, 1925, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Ashe v. United States ex rel. Valotta, 1926, 270 U.S. 424, 46 S.Ct. 333, 70 L.Ed. 662; Wade v. Mayo, 1948, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Dowd v. United States ex rel. Cook, 1951, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Sweeney v. Woodall, 1952, 344 U.S. 86, 73 S.Ct. 139, 97 L.Ed. 114; Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 437, 97 L.Ed. 469; United States ex rel. Smith v. Baldi, 1953, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549.
*928In view of this well-settled line of review by the Supreme Court of the United States without the slightest suggestion that either it or the inferior federal courts were acting beyond their constitutional power, it would indeed take a very strong argument to induce an intermediate court to say the whole series of cases is a usurpation of authority conferred by the Constitution. We have heard no such argument.
We think there is something deeper to the attack on our jurisdiction here than the not well-founded argument that habeas corpus proceedings in this situation constitute a suit against a state. The real reason, it is fair to believe, is a not unnatural irritation that the review of state courts comes at the inferior federal court level. The point is phrased at page 39 of the last Annual Report of the Director of the Administrative Office of the United States Courts (1953) as follows:
“State officials, although recognizing the propriety and constitutional necessity of review of State court convictions by the United States Supreme Court, assert, with some reason, that it is inappropriate for Federal district courts to engage in a process which in fact constitutes a review of State appellate court decisions. The difficulty is to balance these public interest considerations against the need and importance of maintaining the availability of the writ as a protection of individual liberty, if only in a few cases.”
The battle against federal interference with some of these state processes was lost when the Fourteenth Amendment was adopted. The Amendment, as every high school boy knows, forbids states to deprive a person of life, liberty or property without due process of law. That necessarily confers federal power to prevent states from doing the forbidden thing. Then the Amendment goes on and by express terms gives the Congress the power to enforce the provisions by appropriate legislation.9
That the Fourteenth Amendment was meant to accomplish a very substantial increase in federal authority is proved by studies made by scholars of the Amendment when proposed in the Congress and when it was before the states for adoption. One of these studies was made by Dr. Horace Edgar Flack and called The Adoption of the Fourteenth Amendment. Dr. Flack declares that one is venturing little in saying that the main purpose of the radical leaders in the Thirty-ninth Congress in proposing the first section of the Amendment “was to increase the power of the Federal Government very much, but to do it in such a way that the people would not understand the great changes intended to be wrought in the fundamental law of the land.”10 And, speaking of the first section of the Amendment when the proposal was before the Congress, he says, “there was no controversy or misunderstanding as to its purpose and meaning. The minority opposed it because they objected to increasing the power of the Federal Government, while the majority supported it for this very reason.”11
This was the basis upon which the proposed Amendment was attacked by *929Secretary Oliver H. Browning, a member of the President’s cabinet, in a letter written Oct. 13, 1866, and cited by Dr. Flack on page 146 of his work. Mr. Browning declared that the purpose of the due process clause “was to subordinate the state judiciaries to federal supervision and control * * *. ” And in the Pennsylvania legislature, when ratification was in issue, a Mr. Jones, opposing ratification, argued that by the last clause of section one “the State would not be allowed to be the judge of its own laws, even in criminal proceedings, since it gave the Federal courts the power to determine whether a man was imprisoned unjustly or whether he was deprived of his life, liberty, or property without due process of law.”12
Those opposing a measure of whatever sort not infrequently tend to magnify the alleged dangers involved. But Dr. Flack’s study shows that at least some of the lawmakers, state and federal, realized that there was involved in section one of the Fourteenth Amendment a very great increase in federal authority over state processes.
We cannot have any doubt, even were the question a new one, that the federal power is ample, under the Constitution, to authorize the use of habeas corpus procedure to test the question whether one confined under state process is, in that confinement, deprived of his rights under the Constitution of the United States. Nor have we doubt that the power may be assigned to all the federal judiciary or part of it. If the authority of federal courts is to be more limited than that provided by the present statute, that limitation must be made by the Congress.
While such a legislative policy question is not one for this Court it is worth calling attention to Supreme Court language in the case of Wade v. Mayo, 1948, 334 U.S. 672, 681-682, 68 S.Ct. 1270, 1275, 92 L.Ed. 1647. The Court said:
“Fear has sometimes been expressed that the exercise of the district court’s power to entertain habeas corpus petitions under these circumstances might give rise to frequent instances of a single federal judge upsetting the judgment of a state court, often the highest court of the state. But to restrict the writ of habeas corpus for such reason is to limit it on the basis of a discredited fear. Experience has demonstrated that district court judges have used this power sparingly and that only in a negligible number of instances have convictions sustained by state courts been reversed. Statistics compiled by the Administrative Office of the United States Courts show that during the fiscal years of 1943, 1944 and 1945 there was an average of 451 habeas corpus petitions filed each year in federal district courts by prisoners serving state court sentences; of these petitions, an average of but 6 per year resulted in a reversal of the conviction and a release of the prisoner. The releases thus constituted only 1.3% of the total petitions filed. In light of such figures, it cannot be said that federal judges have lightly exercised their power to release prisoners held under the authority of a state.”13
II.
The second problem is the merits of Elliott’s appeal to us from the district court. On this question, as in similar cases heretofore, our opinion is divided. But the majority thinks that the judgment must be affirmed.
In the above recital of facts nothing was stated which made Elliott’s case *930.any different from any other -first degree murder case tried in the courts of Pennsylvania. The questions before us center around additional facts growing out of previous litigation in this Court which eventually ended in the Supreme Court of the United States. The case was United States ex rel. Smith. v. Baldi, 3 Cir., 192 F.2d 540, affirmed, 1953, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549. Between the time that case was heard in this Court and the time it was decided by the Supreme Court, there was filed, with the Supreme Court’s permission, an affidavit by Thomas D. McBride, Esquire, bringing to the Court’s attention the mental condition of Dr. Drayton, who had been a witness in the Smith case and who was consulted by the sentencing court in this case. The substance of that affidavit was that Dr. Drayton had suffered a deterioration in mental health;, that in January, 1951, the deterioration was observed at the clinical level;- and that on September 18, 1951, he had been committed to an institution.14 The facts alleged in this affidavit must be taken to be. true at this point, for there. never has been litigation to give anybody a chance to test their accuracy. It will be noted by checking the dates in the affidavit that it -was not until six months after Dr. Drayton had reported to the trial court in this case that his illness was observed at the clinical level and that it was eight months after that before he was committed to a ' hospital. It is admitted that, at the time the Court of Oyer and Terminer asked for- and received a report from Dr. Drayton, neither the court nor the prosecuting attorney nor, so far as we know, anyone connected with the case had any knowledge or any suspicion of the doctor’s mental illness. In fact, we do not know whether there was any mental illness in July, 1950, except for the general allegation in relator’s petition that Dr. Drayton was suffering. from the disease as early as 1949. That, .again, we- must at this stage of litigation take as true.
We must remind ourselves always that in these proceedings we are not a reviewing court for the correction of -errors. Nor do we possess the pardoning powér of the State of Pennsylvania (which already has been exercised against Elliott). Nor have we authority to subject Elliott to an inquiry by a commission under the Mental Health Act of 1951, 50 P.S.Pa. § 1051 et seq., as was finally done to the defendant in the Smith case.15 -Our sole problem is to determine whether this prisoner has been dealt with with such lack of fairness that we may say that he has not been given due process of law. All this is, of course, trite but, like a text for a sermon, seems to need repetition from time to time.
The district judge put the questions clearly in the following language: “The relator is asking for a hearing in order to establish (1) that Dr. Drayton, the court-appointed psychiatrist, was so mentally impaired at the time he made his report as to render any opinion contained in it worthless, (2) that the report was incomplete and contained an erroneous, conclusion as to. the relator’s mental condition, and (3) that the report caused the sentencing court to fix the penalty at death instead of life imprisonment.” As the district judge also pointed out in the course of his opinion, “The ground for this application is exactly the same as that upon which the petition for a writ of habeas corpus to the state court was based.” It is peculiarly, therefore, the type of case in which the Supreme Court has admonished us to proceed with very great caution:
“Applications to district courts on grounds determined adversely to the applicant by state courts should *931[result in] * * * a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion.” Brown v. Allen, 1953, 344 U.S. 443, 463, 73 S.Ct. 397, 410, 97 L.Ed. 469.
And see United States ex rel. Smith v. Baldi, 1953, 344 U.S. 561, 569-570, 73 S.Ct. 391, 97 L.Ed. 549.
The McBride affidavit got into the Elliott case sometime during its progress from the Court of Oyer and Ter-miner to the Supreme Court of Pennsylvania.16 It was not referred to in the first opinion, but the second time the case was before the Supreme Court of Pennsylvania (on appeal from the denial of habeas corpus by the Court of Common Pleas), Mr. Justice Bell, who wrote the opinion for the court, said, in a footnote, that the court had had the affidavit at the time the first opinion was handed down but did not think it of sufficient significance to comment upon, 373 Pa. at page 492 note, 96 A.2d at page 124 note 1. The affidavit was thoroughly considered in the second opinion, however, and the court concluded its opinion with the statement that: “It may not be amiss to add that, irrespective of any technicalities, if we believed that the sentencing Court was misguided by Dr. Drayton’s testimony and that it imposed its sentence upon an erroneous state of assumptions or material facts which guided or controlled its decision, we would grant the writ in accordance with the principle of Townsend v. Burke, 334 U. S., supra.” 373 Pa. at page 496, 96 A.2d at page 126. So we have here a case where the ground has been thoroughly trodden by the Supreme Court of Pennsylvania as well as by the federal district court. The industry and patience of the prisoner’s counsel have forgotten no possible points to be urged in his favor.
In the exercise of that industry counsel have taken inconsistent positions with regard to the effect of psychiatric material. In the first appeal to the Pennsylvania Supreme Court the complaint was that the sentencing court did not pay sufficient attention to the psychiatric advice given it. Then, in the same appeal, after the McBride affidavit came to light, counsel changed position and urged that the Drayton report, written by an allegedly ill man, was given too much influence and that the “too much influence” deprived Elliott of due process of law. We by no means blame counsel for bringing up everything in the client’s favor which they can. But the change of course from windward to leeward, with regard to the psychiatric report, cannot but create the impression that counsel are seeking for their client any port in a storm, and the objection now urged is an afterthought.
To avoid any possible confusion it is worth saying, as has been said both in the state court and the district court, that it is not and has not been contended that Elliott is or was “insane” as that word is used in Pennsylvania law. The Pennsylvania rule is that of the McNaughton case [10 Clark & F. 200] and that position has been reiterated as recently as November 17, 1953, in Commonwealth v. Patskin, 375 Pa. 368, 100 A.2d 472, certiorari denied, 1954, 347 U.S. 931, 74 S.Ct. 534. A report to defendant’s counsel by Dr. Matthew T. Moore, a matter which will be discussed later, stated that Elliott was “mentally ill” but contained no suggestion that he was insane in the McNaughton case meaning of that term. As previously stated, Dr. Drayton found that Elliott is mentally deficient. Relator does contend that he falls in that area of mental illness between legal insanity and mental deficiency.
Under the Pennsylvania statute providing for psychiatric examination of a convicted defendant, it is well established that the reference is discre*932tionary with the court.17 The Patskin case shows that the responsibility for determining the sentence is that of the court, not the psychiatrist or the commission, and that except for abuse of discretion the court’s determination will not be set aside. In the statutory language the consultation is to “guide” the court. How much of a due process question is there with regard to the consultant to whom a court turns for guidance? One may suppose a case where it consults so old-fashioned a psychiatrist that his views are considered hopelessly out of date by a majority of his practicing colleagues. Or one may suppose a psychiatrist so far in advance of the majority of the profession that his professional opinions are considered unsound and dangerous. Is there lack of due process in a court’s consulting such' a person? Is his report lacking in due process because it does not discuss fully all the things which counsel wants discussed? We do not think matters of this kind involve a question of lack of due process, although they may properly be considered and urged against the weight of the report when it is received. Indeed, counsel for Elliott did just that in the Court of Oyer and Terminer after Dr. Drayton’s report had been received. He objected to what he claimed were omissions in the report. He criticized alleged mistakes of fact and he brought forward the letter from Dr. Matthew Moore already referred to. Dr. Moore and Dr. Drayton both agreed that Elliott is a middle grade moron. Dr. Moore did disagree with Dr. Drayton about mental illness. Dr. Moore thought Elliott both mentally deficient and mentally ill. Dr. Drayton thought him only mentally deficient.18
Questions about Dr. Drayton’s advice, even though we assume as true all the facts in the McBride affidavit, become less significant when the larger picture is looked at. In the first place the Supreme Court of the United States had the McBride affidavit in United States ex rel. Smith v. Baldi, already referred to. The Supreme Court of Pennsylvania has pointed out the Smith case was a stronger one for the defendant than this, 373 Pa. at page 496, 96 A.2d at page 126. Be that as it may, having the affidavit the majority of the Supreme Court of the United States, despite a vigorous dissent, did not find that the facts therein contained created want of due process in the handling of the case in Pennsylvania. In the second place, as Judge Kirkpatrick pointed out, the sentencing court “has had before it practically the whole history of the re*933lator from boyhood and a mass of psychological and psychiatric examinations made by competent physicians at various times when he was committed to correctional institutions for a variety of criminal offenses. The relator appeared before the sentencing court and testified and, in addition, the trial judge, one of the members of that court, had had an opportunity to observe the manner in which he conducted himself during the five days of his trial.”
We think the language from Frank v. Mangum, 1915, 237 U.S. 309, 326, 35 S.Ct. 582, 586, 59 L.Ed. 969, is appropriate to apply as the test of our obligation here. It is:
“As to the ‘due process of law’ that is required by the Fourteenth Amendment, it is perfectly well settled that a criminal prosecution in the courts of a State, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the State, so long as it includes notice, and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is ‘due process’ in the constitutional sense.” (Citations omitted.)
We think that by this test Elliott has had due process of law.
The judgment of the district court will be affirmed.
. This is the statutory language.
. 14 Stat. 385.
. This statement is from the dissenting opinion of Mr. Justice Frankfurter in Darr v. Burford, 1950, 339 U.S. 200, 221, 70 S.Ct. 587, 599, 94 L.Ed. 761. The opinion gives a short summary of the change made by the 1867 statute.
. “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S.Const. Amend. VII.
. 5 Moore’s Federal Practice 70-82 (2d ed. 1951).
. 3 Bl.Comm. * 129 ff.
. Id. at * 131, 132.
. In this case, the suit was alleged to be one against the United States. “But it cannot be doubted that the question whether a particular suit is. one against the State * * * must depend upon the same principles that determine whether a particular suit is one against the United States.” Tindal v. Wesley, 1897, 167 U.S. 204, 213, 17 S.Ct. 770, 773, 42 L.Ed. 137.
. “ * * * nor shall any State deprive any person of life, liberty, or property, ■without due process of law * *
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S.Const. Amend. XIV, §§ 1, 5.
. Flack, The Adoption of the Fourteenth Amendment 69 (1908).
. Id. at 81. See also 2 Warren, The Supreme Court in United States History 540 (Rev.ed.1937), quoting from Charles Wallace Collins’ The Fourteenth Amendment and the States 10 (1912): “They desired to nationalize all civil rights; to make the Federal power supreme; and to bring the private life of every citizen directly under the eye of Congress. This intention of the Radicals, though too much involved for the people in general to comprehend, was quite generally understood by the leading editors in the North and in the South and by the party leaders on both sides.”
. Flack, op. cit. supra note 10, at 185-186.
. gee also on the statistical side the appendix to Mr. Justice Frankfurter’s opinion in Brown v. Allen, 1953, 344 U.S. 443, 514, 526, 73 S.Ct. 437, 97 L.Ed. 469.
. Dr. Drayton died in that institution in March, 1953.
. , As a result of this inquiry, Smith was committed .by. Judge Levin thal, of the. Court of Common Pleas No. 6, Philadelphia, to the Farview State Hospital on March 23, 1953.
. Counsel for defendant learned of the affidavit on April 10, 1952.
. See cases cited in Commonwealth v. Patskin, 375 Pa. at page 372, 100 A.2d at page 474.
. The point was made at argument here that Dr. Drayton did not qualify under the statute of 1933, which provides that the psychiatrist to be consulted must be “employed by the State Department of Welfare or * * * in any State hospital or in any mental hospital maintained by the county.” Act of May 2, 1933, P.L. 224. As previously stated, Dr. Drayton had been chief of the Philadelphia General Hospital psychiatric department, and associate professor of neuropsychiatry in the Graduate School of Medicine of the University of Pennsylvania, but he had ceased to occupy these posts at some time during 1949. He was, however, still connected with the Municipal Court of Philadelphia when he examined Elliott. We are informed by counsel that neither the court nor counsel knew at the time of sentencing that Dr. Drayton was no longer associated with these institutions.
We have found no Pennsylvania cases interpreting the requirement just quoted. In the absence of Pennsylvania authority, we think it was designed to provide a public official who could be called upon to furnish an opinion without fee. It is to be noted that the 1951 statute adds a reference to a psychiatrist who is “a qualified physician who, by a minimum of five (5) years of training and experience, has acquired specialized skill and learning in mental and nervous disorders and related conditions and who has thereby achieved professional standing in the medical specialty of psychiatry.” Pa. Stat.Ann. tit. 50, § 1072(3). We do not think that the fact that Dr. Drayton was no longer a member of a staff of a public mental institution at the time he examined Elliott makes the court’s receiving an opinion from him lack of due process.