U.S.
Supreme Court
Twining v. State, 211 U.S. 78
(1908)
No. 10
Argued March 19, 20, 1908
Decided November 9, 1908
ERROR TO THE COURT OF ERRORS AND
APPEALS OF
THE STATE OF NEW JERSEY
Syllabus
The judicial act of the highest
court of a State, in authoritatively construing and enforcing its laws, is the
act of the State.
Exemption from compulsory
self-incrimination in the state courts is not secured by any part of the
Federal Constitution.
There is a citizenship of the United
States and a citizenship of the State which are distinct from each other, Slaughter House Cases,
16 Wall. 36, and privileges and immunities, although fundamental, which do not
arise out of the nature and character of the National Government, or are not
specifically protected by the Federal Constitution, are attributes of state,
and not of National, citizenship.
The first eight Amendments are
restrictive only of National action, and, while the Fourteenth Amendment
restrained and limited state action, it did not take up and protect citizens of
the States from action by the States as to all matters enumerated in the first
eight Amendments.
The words "due process of
law," as used in the Fourteenth Amendment, are intended to secure the
individual from the arbitrary exercise of powers of government unrestrained by
the established principles of private right and distributive justice, Bank v. Okely,
4 Wheat. 235, but that does not require that he be exempted from compulsory
self-incrimination in the courts of a State that has not adopted the policy of
such exemption.
Exemption from compulsory
self-incrimination did not form part of the "law of the land" prior
to the separation of the colonies from the mother country, nor is it one of the
fundamental rights, immunities
and privileges of citizens of the
United States, or an element of due process of law within the meaning of the
Federal Constitution or the Fourteenth Amendment thereto.
The fact that exemption from
compulsory self-incrimination is specifically enumerated in the guarantees of
the Fifth Amendment tends to show that it was, and is to be, regarded as a
separate right, and not as an element of due process of law.
When a question is no longer open in
this court, adverse arguments, although weighty, will not be considered; and,
under the doctrine of stare decisis, 83 U. S.
16 Wall. 36, and Maxwell v. Dow, 176 U. S. 581,
approved and followed.
Quare and not decided whether an instruction that the jury may
draw an unfavorable inference from the failure of the accused to testify in
denial of evidence tending to criminate him amounts to a violation of the
privilege of immunity from self-incrimination.
74 N.J.L. 683, affirmed.
ALBERT C. TWINING and David C.
Cornell, the plaintiffs in error, hereafter called the defendants, were
indicted by the grand jury of Monmouth County, in the State of New Jersey. The
indictment charged that the defendants, being directors of the Monmouth Trust
and Safe Deposit Company, knowingly exhibited a false paper to Larue
Vreedenberg, an examiner of the State Banking Department, with intent to
deceive him as to the condition of the company. Such an act is made a
misdemeanor by a statute of the State (P.L. 1899, p. 450, at 461), which is as
follows:
"Every director, officer, agent
or clerk of any trust company who willfully and knowingly subscribes or makes
any false statement of facts or false entries in the books of such trust
company, or knowingly subscribes or exhibits any false paper, with intent to
deceive any person authorized to examine as to the condition of such trust
company, or willfully or knowingly subscribes to or makes any false report,
shall be guilty of a high misdemeanor and punished accordingly."
The defendants were found guilty on
March 1, 1904, by the verdict of a jury, and judgment upon the verdict, that
the defendants be imprisoned for six and four years respectively, was affirmed
successively by the Supreme Court and the Court
of Errors and Appeals. There needs
to be stated here only such part of what occurred at the trial as will describe
the questions on which this court is authorized to pass. It appeared that, in
February, 1903, the company closed its doors. The bank examiner came at once to
the place of business for the purpose of examining the affairs of the company,
and found there Twining and Cornell, who were, respectively, president and
treasurer, as well as directors. Having soon discovered that, according to a
book entry, there had been a recent payment of $44,875, for 381 shares of
stock, the examiner inquired of the defendants by what authority this had been
done, and was informed that it was done by authority of the board of directors,
and the following paper was produced to him as a record of the transaction:
"Monmouth Trust & Safe
Deposit Co., Asbury Park, N.J."
"A special meeting of the board
of directors of this company was held at the office of the company on Monday,
Feb. 9th, 1903."
"There were present the
following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C.
Twining, D. C. Cornell."
"The minutes of the regular
meeting held Jan. 15th, 1903, were read, and on motion duly approved."
"All loans taken since the last
meeting were gone over carefully, and, upon motion duly seconded, were
unanimously approved."
"A resolution that this company
buy 381 shares of the stock of the First National Bank at $44,875 was
adopted."
"On motion, the meeting
adjourned."
This was the paper referred to in
the indictment, and it was incumbent on the prosecution to prove that it was
false and that it was "knowingly" exhibited by the defendants to the
examiner. There was evidence on the part of the prosecution tending to prove
both these propositions. The defendants called no witnesses, and did not
testify themselves, although the law of New Jersey gave them the right to do so
if they chose. In his charge to the jury, the presiding judge said:
"Now, gentlemen, was this paper
false? In the first place,
the paper charged in the indictment
certifies in effect that a special meeting of the board of directors of this
company was held at the office of the company on Monday, February 9, 1903.
There were present the following directors: George F. Kroehl, S. A. Patterson,
G. B. M. Harvey, A. C. Twining, D. C. Cornell."
"Among other things appears a
resolution of this company to buy 381 shares of the stock of the First National
Bank at $44,875, which was adopted."
"Now, was that meeting held, or
not?"
"The papers says that at this
meeting were present, among others, Patterson, Twining and Cornell."
"Mr. Patterson has gone upon
the stand and has testified that there was no such meeting to his knowledge;
that he was not present at any such meeting; that he had no notice of any such
meeting, and that he never acquiesced, as I understand, in any way in the
passage of a resolution for the purchase of this stock."
"Now Twining and Cornell, this
paper says, were present. They are here in court, and have seen this paper
offered in evidence, and they know that this paper says that they were the two
men, or two of the men, who were present. Neither of them has gone upon the
stand to deny that they were present or to show that the meeting was
held."
"Now it is not necessary for
these men to prove their innocence. It is not necessary for them to prove that
this meeting was held. But the fact that they say off the stand, having heard
testimony which might be prejudicial to them, without availing themselves of the
right to go upon the stand and contradict it, is sometimes a matter of
significance."
"Now, of course, in this
action, I do not see how that can have much weight, because these men deny that
they exhibited the paper, and if one of these men exhibited the paper and the
other did not, I do not see how you could say that the person who claims he did
not exhibit the paper would be under any obligation at all to go upon the
stand. Neither is under any obligation. It is simply a right they have to go
upon the stand, and, consequently, the fact that they do not go upon the stand
to contradict this statement in the minutes, they both denying, through their
counsel and through their plea, that they exhibited the paper, I do not see
that that can be taken as at all prejudicial to either of them. They simply
have the right to go upon the stand, and they have not availed themselves of
it, and it may be that there is no necessity for them to go there. I leave that
entirely to you."
Further, in that part of the charge
relating to the exhibition of the paper to the examiner, the judge said:
"Now gentlemen, if you believe
that is so; if you believe this testimony that Cornell did direct this man's
attention to it -- Cornell has sat here and heard that testimony and has not denied
it -- nobody could misunderstand the import of that testimony, it was a direct
accusation made against him of his guilt -- if you believe that testimony
beyond a reasonable doubt, Cornell is guilty. He was not called upon to go upon
the stand and deny it, but he did not go upon the stand and deny it, and it is
for you to take that into consideration."
"Now Twining has also sat here
and heard this testimony, but you will observe there is this distinction as to
the conduct of these two men in this respect: the accusation against Cornell
was specific by Vreedenberg. It is rather inferential, if at all, against
Twining, and he might say -- it is for you to say whether he might say,"
"Well, I don't think the
accusation against me is made with such a degree of certainty as to require me
to deny it, and I shall not; nobody will think it strange if I do not go upon
the stand to deny it, because Vreedenberg is uncertain as to whether I was
there; he won't swear that I was there."
"So, consequently, the fact
that Twining did not go upon the stand can have no significance at all."
"You may say that the fact that
Cornell did not go upon the stand has no significance. You may say so because
the circumstances may be such that there should be no inference drawn of guilt
or anything of that kind from the fact that he did not go upon the stand.
Because a man does not go upon the stand, you are not necessarily justified in
drawing an inference of guilt. But you have a right to consider the fat that he
does not go upon the stand where a direct accusation is made against him."
The question duly brought here by
writ of error is whether the parts of the charge set forth, affirmed as they
were by the Court of last resort of the State, are in violation of the
Fourteenth Amendment of the Constitution of the United States.
MR. JUSTICE MOODY, after making the
foregoing statement, delivered the opinion of the court.
In the view we take of the case, we
do not deem it necessary to consider whether, with respect to the Federal
question, there is any difference in the situation of the two defendants. It is
assumed, in respect of each, that the jury were instructed that they might draw
an unfavorable inference against him from his failure to testify, where it was
within his power, in denial af the evidence which tended to incriminate him.
The law of the State, as declared in the case at bar, which accords with other
decisions (Parker v. State, 61 N.J.L. 308; State v. Wines, 65
N.J.L. 31; State v. Zdanowicz, 69 N.J.L. 619; State v. Banuski,
64 Atl. Rep. 994), permitted such an inference to be drawn. The judicial act of
the highest court of the
State, in authoritatively construing
and enforcing its laws, is the act of the State. Ex parte Virginia, 100 U. S. 339; Scott
v. McNeal, 154
U. S. 34; Chicago, Burlington & Quincy Railroad Company v. Chicago,
166 U. S. 226.
The general question, therefore, is whether such a law violates the Fourteenth
Amendment either by abridging the privileges or immunities of citizens of the
United States or by depriving persons of their life, liberty or property
without due process of law. In order to bring themselves within the protection
of the Constitution, it is incumbent on the defendants to prove two propositions:
first, that the exemption from compulsory self-incrimination is guaranteed by
the Federal Constitution against impairment by the States; and, second, if it
be so guaranteed, that the exemption was, in fact, impaired in the case at bar.
The first proposition naturally presents itself for earlier consideration. If
the right here asserted is not a Federal right, that is the end of the case. We
have no authority to go further and determine whether the state court has erred
in the interpretation and enforcement of its own laws.
The exemption from testimonial
compulsion, that is, from disclosure as a witness of evidence against oneself,
forced by any form of legal process, is universal in American law, though there
may be differences as to its exact scope and limits. At the time of the
formation of the Union the principle that no person could be compelled to be a
witness against himself had become embodied in the common law, and
distinguished it from all other systems of jurisprudence. It was generally regarded
then, as now, as a privilege of great value, a protection to the innocent,
though a shelter to the guilty, and a safeguard against heedless, unfounded or
tyrannical prosecutions. Five of the original thirteen States (North Carolina,
1776; Pennsylvania, 1776; Virginia, 1776; Massachusetts, 1780; New Hampshire,
1784) had then guarded the principle from legislative or judicial change by
including it in constitutions or bills of rights; Maryland had provided in her
constitution (1776) that
"no man ought to be compelled
to give evidence against
himself in a common court of law or
in any other court, but in such cases as have been usually practiced in this
State or may hereafter be directed by the legislature;"
and in the remainder of those
States, there seems to be no doubt that it was recognized by the courts. The
privilege was not included in the Federal Constitution as originally adopted,
but was placed in one of the ten Amendments which were recommended to the
States by the first Congress, and by them adopted. Since then, all the States
of the Union have, from time to time, with varying form but uniform meaning,
included the privilege in their constitutions, except the States of New Jersey
and Iowa, and in those States it is held to be part of the existing law. State
v. Zdanowicz, supra; State v. Height, 117 Iowa, 650. It is obvious from
this short statement that it has been supposed by the States that, so far as
the state courts are concerned, the privilege had its origin in the constitutions
and laws of the States, and that persons appealing to it must look to the State
for their protection. Indeed, since, by the unvarying decisions of this court,
the first ten Amendments of the Federal Constitution are restrictive only of
National action, there was nowhere else to look up to the time of the adoption
of the Fourteenth Amendment, and the State, at least until then, might give
modify or withhold the privilege at its will. The Fourteenth Amendment withdrew
from the States powers theretofore enjoyed by them to an extent not yet fully
ascertained, or rather, to speak more accurately, limited those powers and
restrained their exercise. There is no doubt of the duty of this court to
enforce the limitations and restraints whenever they exist, and there has been
no hesitation in the performance of the duty. But whenever a new limitation or
restriction is declared, it is a matter of grave import, since, to that extent,
it diminishes the authority of the State, so necessary to the perpetuity of our
dual form of government, and changes its relation to its people and to the
Union. The question in the case at bar has been twice before us, and been left
undecided, as the cases were disposed of on other grounds. Adams v. New
York, 192 U. S. 585; Consolidated
Rendering Co. v. Vermont, 207 U. S. 541.
The defendants contend, in the first place, that the exemption from
self-incrimination is one of the privileges and immunities of citizens of the
United States which the Fourteenth Amendment forbids the States to abridge. It
is not argued that the defendants are protected by that part of the Fifth
Amendment which provides that "no person . . . shall be compelled in any
criminal case to be a witness against himself," for it is recognized by
counsel that, by a long line of decisions, the first ten Amendments are not
operative on the States. Barron v. Baltimore,
7 Pet. 243; Spies v. Illinois, 123 U. S. 131; Brown
v. New Jersey, 175 U. S. 172; Barrington
v. Missouri, 205
U. S. 483. But it is argued that this privilege is one of the fundamental
rights of National citizenship, placed under National protection by the
Fourteenth Amendment, and it is specifically argued that the "privileges
and immunities of citizens of the United States," protected against state
action by that Amendment, include those fundamental personal rights which were
protected against National action by the first eight Amendments; that this was
the intention of the framers of the Fourteenth Amendment, and that this part of
it would otherwise have little or no meaning and effect. These arguments are
not new to this court, and the answer to them is found in its decisions. The
meaning of the phrase "privileges and immunities of citizens of the United
States," as used in the Fourteenth Amendment, came under early
consideration in the Slaughter-House Cases,
16 Wall. 36. A statute of Louisiana created a corporation and conferred upon it
the exclusive privilege, for a term of years, of establishing and maintaining
within a fixed division of the city of New Orleans stock-yards and
slaughter-houses. The act provided that others might use these facilities for a
prescribed price, forbade the landing for slaughter or the slaughtering of
animals elsewhere or otherwise, and established a system of inspection. Those
persons who were driven out of independent business by this law denied its
validity in suits which came to this
court by writs of error to the
Supreme Court of the State which had sustained the act. It was argued, inter
alia, that the statute abridged the privileges and immunities of the
plaintiffs in error as citizens of the United States, and the particular
privilege which was alleged to be violated was that of pursuing freely their
chosen trade, business or calling. The majority of the court were not content
with expressing the opinion that the act did not, in fact, deprive the
plaintiffs in error of their right to exercise their trade (a proposition
vigorously disputed by four dissenting justices), which would have disposed of
the case, but preferred to rest the decision upon the broad ground that the
right asserted in the case was not a privilege or immunity belonging to persons
by virtue of their National citizenship, but, if existing at all, belonging to
them only by virtue of their state citizenship. The Fourteenth Amendment, it is
observed by Mr. Justice Miller, delivering the opinion of the court, removed
the doubt whether there could be a citizenship of the United States independent
of citizenship of the State by recognizing or creating and defining the former.
"It is quite clear, then," he proceeds to say (p. 83 U. S. 74),
"that there is a citizenship of
the United States and a citizenship of a State, which are distinct from each
other, and which depend upon different characteristics or circumstances in the
individual."
The description of the privileges
and immunities of state citizenship, given by Mr. Justice Washington in Corfield
v. Coryell, 4 Wash. C.C. 371, is then quoted, approved and (p. 83 U. S. 76)
said to include "those rights which are fundamental," to embrace
"nearly every civil right for the establishment and protection of which
organized government is instituted," and "to be the class of rights
which the state governments were created to establish and secure." This
part of the opinion then concludes with the holding that the rights relied upon
in the case are those which belong to the citizens of States as such, and are
under the sole care and protection of the state governments. The conclusion is
preceded by the important declaration that the civil rights theretofore
appertaining to citizenship of the States
and under the protection of the
States, were not given the security of National protection by this clause of
the Fourteenth Amendment. The exact scope and the momentous consequence of this
decision are brought into clear light by the dissenting opinions. The view of
Mr. Justice Field, concurred in by Chief Justice Chase and Justices Swayne and
Bradley, was that the fundamental rights of citizenship, which by the opinion
of the court were held to be rights of state citizenship, protected only by the
state government, became, as the result of the Fourteenth Amendment, rights of
National citizenship protected by the National Constitution. Said Mr. Justice
Field (p. 83 U.
S. 95):
"The fundamental rights,
privileges and immunities which belong to him as a free man and a free citizen,
now belong to him as a citizen of the United States, and are not dependent upon
his citizenship of any State. . . . The Amendment does not attempt to confer
any new privileges or immunities upon citizens, or to enumerate or define those
already existing. It assumes that there are such privileges and immunities which
belong of right to citizens as such, and ordains that they shall not be
abridged by state legislation. If this inhibition has no reference to
privileges and immunities of this character, but only refers, as held by the
majority of the court in their opinion, to such privileges and immunities as
were before its adoption specially designated in the Constitution or
necessarily implied as belonging to citizens of the United States, it was a
vain and idle enactment, which accomplished nothing, and most unnecessarily
excited Congress and the people on its passage. With privileges and immunities
thus designated or implied, no State could ever have interfered by its laws,
and no new constitutional provision was required to inhibit such interference.
The supremacy of the Constitution and laws of the United States always
controlled any state legislation of that character. But if the Amendment refers
to the natural and inalienable rights which belong to all citizens, the
inhibition has a profound significance and consequence. "
In accordance with these principles,
it is said by the learned justice that the privileges and immunities of state
citizenship described by Mr. Justice Washington, and held by the majority of
the court still to pertain exclusively to state citizenship and to be protected
solely by the state government, have been guaranteed by the Fourteenth
Amendment as privileges and immunities of citizens of the United States. And
see the concurring opinions of Mr. Justice Field and Mr. Justice Bradley in
Bartemeyer v.
Iowa, 18 Wall. 129, and in Butchers' Union Company v. Crescent City
Company, 111
U. S. 746. There can be no doubt, so far as the decision in the Slaughter-House
Cases has determined the question, that the civil rights sometimes
described as fundamental and inalienable, which before the war Amendments were
enjoyed by state citizenship and protected by state government, were left
untouched by this clause of the Fourteenth Amendment. Criticism of this case
has never entirely ceased, nor has it ever received universal assent by members
of this court. Undoubtedly it gave much less effect to the Fourteenth Amendment
than some of the public men active in framing it intended, and disappointed
many others. On the other hand, if the views of the minority had prevailed, it
is easy to see how far the authority and independence of the States would have
been diminished by subjecting all their legislative and judicial acts to
correction by the legislative and review by the judicial branch of the National
Government. But we need not now inquire into the merits of the original
dispute. This part, at least, of the Slaughter-House Cases has been
steadily adhered to by this court, so that it was said of it, in a case where
the same clause of the Amendment was under consideration (Maxwell v. Dow,
176 U. S. 581,
176 U. S.
591),
"The opinion upon the matters
actually involved and maintained by the judgment in the case has never been
doubted or overruled by any judgment of this court."
The distinction between National and
state citizenship and their respective privileges there drawn has come to be
firmly established. And so it was held that the right of peaceable assembly
for a lawful purpose (it not
appearing that the purpose had any reference to the National Government) was
not a right secured by the Constitution of the United States, although it was
said that the right existed before the adoption of the Constitution of the
United States, and that "it is and always has been one of the attributes
of citizenship under a free government." United States v. Cruikshank,
92 U. S. 542,
92 U. S. 551.
And see Hodges v. United States, 203 U. S. 1. In
each case, the Slaughter-House Cases were cited by the court, and in the
latter case, the rights described by Mr. Justice Washington were again treated
as rights of state citizenship under state protection. If then it be assumed,
without deciding the point, that an exemption from compulsory self-incrimination
is what is described as a fundamental right belonging to all who live under a
free government, and incapable of impairment by legislation or judicial
decision, it is, so far as the States are concerned, a fundamental right
inherent in state citizenship, and is a privilege or immunity of that
citizenship only. Privileges and immunities of citizens of the United States,
on the other hand, are only such as arise out of the nature and essential
character of the National Government, or are specifically granted or secured to
all citizens or persons by the Constitution of the United States. Slaughter-House
Cases, supra, p. 83 U. S. 79; In
re Kemmler, 136
U. S. 436, 136 U. S. 448;
Duncan v. Missouri, 152 U. S. 377, 152 U. S. 382.
Thus, among the rights and
privileges of National citizenship recognized by this court are the right to
pass freely from State to State, Crandall v. Nevada,
6 Wall. 35; the right to petition Congress for a redress of grievances, United
States v. Cruikshank, supra; the right to vote for National officers, Ex
parte Yarbrough, 110 U. S. 651; Wiley
v. Sinkler, 179
U. S. 58; the right to enter the public lands, United States v. Waddell,
112 U. S. 76;
the right to be protected against violence while in the lawful custody of a
United States marshal, Logan v. United States, 144 U. S. 263,
and the right to inform the United States authorities of violation of its laws,
In re Quarles, 158 U. S. 532.
Most of these cases were indictments
against individuals for conspiracies to deprive persons of rights secured by
the Constitution of the United States, and met with a different fate in this
court from the indictments in United States v. Cruikshank and Hodges
v. United States, because the rights in the latter cases were rights of
state, and not of National, citizenship. But assuming it to be true that the
exemption from self-incrimination is not, as a fundamental right of National citizenship,
included in the privileges and immunities of citizens of the United States,
counsel insist that, as a right specifically granted or secured by the Federal
Constitution, it is included in them. This view is based upon the contention
which must now be examined, that the safeguards of personal rights which are
enumerated in the first eight Articles of amendment to the Federal
Constitution, sometimes called the Federal Bill of Rights, though they were by
those Amendments originally secured only against National action, are among the
privileges and immunities of citizens of the United States, which this clause
of the Fourteenth Amendment protects against state action. This view has been,
at different times, expressed by justices of this court (Mr. Justice Field in O'Niel
v. Vermont, 144
U. S. 323, 144 U. S. 361;
Mr. Justice Harlan in the same case, 144 U. S. 370,
and in Maxwell v. Dow, 176 U. S. 606,
176 U. S.
617), and was undoubtedly that entertained by some of those who framed the
Amendment. It is, however, not profitable to examine the weighty arguments in
its favor, for the question is no longer open in this court. The right of trial
by jury in civil cases, guaranteed by the Seventh Amendment (Walker v.
Sauvinet, 92
U. S. 90), and the right to bear arms guaranteed by the Second Amendment (Presser
v. Illinois, 116
U. S. 252), have been distinctly held not to be privileges and immunities
of citizens of the United States guaranteed by the Fourteenth Amendment against
abridgment by the State, and, in effect, the same decision was made in respect
of the guarantee against prosecution, except by indictment of a grand jury,
contained in the Fifth Amendment (Hurtado v. California, 110 U. S. 516),
and in respect of the right to be
confronted with witnesses, contained in the Sixth Amendment. West v.
Louisiana, 194
U. S. 258. In Maxwell v. Dow, supra, where the plaintiff in error
had been convicted in a state court of a felony upon an information, and by a
jury of eight persons, it was held that the indictment, made indispensable by
the Fifth Amendment, and the trial by jury guaranteed by the Sixth Amendment,
were not privileges and immunities of citizens of the United States, as those
words were used in the Fourteenth Amendment. The discussion in that case ought
not to be repeated. All the arguments for the other view were considered and
answered, the authorities were examined and analyzed, and the decision rested
upon the ground that this clause of the Fourteenth Amendment did not forbid the
States to abridge the personal rights enumerated in the first eight Amendments,
because those rights were not within the meaning of the clause "privileges
and immunities of citizens of the United States." If it be possible to
render the principle which governed the decision more clear, it is done so by
the dissent of Mr. Justice Harlan. We conclude, therefore, that the exemption
from compulsory self-incrimination is not a privilege or immunity of National
citizenship guaranteed by this clause of the Fourteenth Amendment against
abridgment by the States.
The defendants, however, do not stop
here. They appeal to another clause of the Fourteenth Amendment, and insist
that the self-incrimination, which they allege the instruction to the jury
compelled, was a denial of due process of law. This contention requires
separate consideration, for it is possible that some of the personal rights
safeguarded by the first eight Amendments against National action may also be
safeguarded against state action, because a denial of them would be a denial of
due process of law. Chicago, Burlington & Quincy Railroad v. Chicago,
166 U. S. 226.
If this is so, it is not because those rights are enumerated in the first eight
Amendments, but because they are of such a nature that they are included in the
conception of due process of law. Few
phrases of the law are so elusive of
exact apprehension as this. Doubtless the difficulties of ascertaining its
connotation have been increased in American jurisprudence, where it has been
embodied in constitutions and put to new uses as a limit on legislative power.
This court has always declined to give a comprehensive definition of it, and
has preferred that its full meaning should be gradually ascertained by the
process of inclusion and exclusion in the course of the decisions of cases as
they arise. There are certain general principles well settled, however, which
narrow the field of discussion and may serve as helps to correct conclusions.
These principles grow out of the proposition, universally accepted by American
courts on the authority of Coke, that the words "due process of law"
are equivalent in meaning to the words "law of the land," contained
in that chapter of Magna Carta, which provides that
"no freeman shall be taken, or
imprisoned, or disseised, or outlawed, or exiled, or any wise destroyed; nor
shall we go upon him, nor send upon him, but by the lawful judgment of his
peers or by the law of the land."
Murray v. Hoboken
Land Co., 18 How. 272; Davidson v. New
Orleans, 96 U.
S. 97; Jones v. Robbins, 8 Gray, 329; Cooley, Const.Lim. (7th ed.),
500; McGehee, Due Process of Law, 16. From the consideration of the meaning of
the words in the light of their historical origin, this court has drawn the
following conclusions:
First. What is due process of law
may be ascertained by an examination of those settled usages and modes of
proceedings existing in the common and statute law of England before the
emigration of our ancestors, and shown not to have been unsuited to their civil
and political condition by having been acted on by them after the settlement of
this country. This test was adopted by the court, speaking through Mr. Justice
Curtis, in Murray
v. Hoboken Land Co., 18 How. 272, 59 U. S. 280
(approved in Hallinger v. Davis, 146 U. S. 314, 146 U. S. 320;
Holden v. Hardy, 169 U. S. 366, 169 U. S. 390,
but see Lowe v. Kansas, 163 U. S. 81, 163 U. S. 85).
Of course, the part of the Constitution then
before the court was the Fifth
Amendment. If any different meaning of the same words, as they are used in the
Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision.
"A process of law," said Mr. Justice Matthews, commenting on this
statement of Mr. Justice Curtis,
"which is not otherwise
forbidden, must be taken to be due process of law, if it can show the sanction
of settled usage both in England and this country."
Hurtado v. California, 110 U. S. 516, 110 U. S. 528.
Second. It does not follow, however,
that a procedure settled in English law at the time of the emigration, and
brought to this country and practiced by our ancestors, is an essential element
of due process of law. If that were so, the procedure of the first half of the
seventeenth century would be fastened upon the American jurisprudence like a
straightjacket, only to be unloosed by constitutional amendment. That, said Mr.
Justice Matthews, in the same case, p. 110 U. S. 529,
"would be to deny every quality of the law but its age, and to render it
incapable of progress or improvement." Holden v. Hardy, 169 U. S. 366, 169 U. S. 388;
Brown v. New Jersey, 175 U. S. 172, 175 U. S. 175.
Third. But, consistently with the
requirements of due process, no change in ancient procedure can be made which
disregards those fundamental principles, to be ascertained from time to time by
judicial action, which have relation to process of law and protect the citizen
in his private right, and guard him against the arbitrary action of government.
This idea has been many times expressed in differing words by this court, and
it seems well to cite some expressions of it. The words due process of law
"were intended to secure the
individual from the arbitrary exercise of the powers of government,
unrestrained by the established principles of private rights and distributive
justice."
Bank of Columbia v.
Okely, 4 Wh. 235, 17 U. S. 244
(approved in Hurtado v. California, 110 U. S. 516, 110 U. S. 527;
Leeper v. Texas, 139 U. S. 462, 139 U. S. 468;
Scott v. McNeal, 154 U. S. 34, 154 U. S. 45).
"This court has never attempted
to define
with precision the words 'due
process of law.' . . . It is sufficient to say that there are certain immutable
principles of justice which inhere in the very idea of free government which no
member of the Union may disregard."
Holden v. Hardy, 169 U. S. 366, 169 U. S. 389.
"The same words refer to that
law of the land in each State, which derives its authority from the inherent
and reserved powers of the State, exerted within the limits of those
fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions."
In re Kemmler, 136 U. S. 436, 136 U. S. 448.
"The limit of the full control
which the State has in the proceedings of its courts, both in civil and
criminal cases, is subject only to the qualification that such procedure must
not work a denial of fundamental rights or conflict with specific and
applicable provisions of the Federal Constitution."
West v. Louisiana, 194 U. S. 258, 194 U. S. 263.
The question under consideration may
first be tested by the application of these settled doctrines of this court. If
the statement of Mr. Justice Curtis, as elucidated in Hurtado v. California,
is to be taken literally, that alone might almost be decisive. For nothing is
more certain, in point of historical fact, than that the practice of compulsory
self-incrimination in the courts and elsewhere existed for four hundred years
after the granting of Magna Carta, continued throughout the reign of Charles I
(though then beginning to be seriously questioned), gained at least some
foothold among the early colonists of this country, and was not entirely
omitted at trials in England until the eighteenth century. Wigmore on Evidence,
§ 2250 (see, for the Colonies, note 108); Hallam's Constitutional
History of England, ch. VIII, 2 Widdleton's American ed., 37 (describing the
criminal jurisdiction of the Court of Star Chamber); Bentham's Rationale of
Judicial Evidence, book IX, ch. III, § IV.
Sir James Fitzjames Stephen, in his
studies of the reports of English trials for crime, has thrown much light on
the existence of the practice of questioning persons accused of
crime and its gradual decay. He
considers, first, a group of trials which occurred between 1554 and 1637.
Speaking of the trial before the jury, he says:
"The prisoner, in nearly every
instance, asked, as a favor, that he might not be overpowered by the eloquence
of counsel denouncing him in a set speech, but, in consideration of the
weakness of his memory, might be allowed to answer separately to the different
matters which might be alleged against him. This was usually granted, and the
result was that the trial became a series of excited altercations between the
prisoner and the different counsel opposed to him. Every statement of counsel
operated as a question to the prisoner, and indeed they were constantly thrown
into the form of questions, the prisoner either admitting or denying or
explaining what was alleged against him. The result was that, during the period
in question, the examination of the prisoner, which is at present scrupulously
and I think even pedantically avoided, was the very essence of the trial, and
his answers regulated the production of the evidence; the whole trial, in fact,
was a long argument between the prisoner and counsel for the Crown, in which
they questioned each other and grappled with each other's arguments with the
utmost eagerness and closeness of reasoning."
Stephen, 1 Hist. of the Crim.Law
325.
This description of the questioning
of the accused and the meeting of contending arguments finds curious
confirmation in the report of the trial, in 1637, of Ann Hutchinson (which
resulted in banishment) for holding and encouraging certain theological views
which were not approved by the majority of the early Massachusetts rulers. 1
Hart's American History Told by Contemporaries 382. The trial was presided over
and the examination very largely conducted by Governor Winthrop, who had been
for some years before his emigration an active lawyer and admitted to the Inner
Temple. An examination of the report of this trial will show that he was not
aware of any privilege against self-incrimination or conscious of
any duty to respect it. Stephen says
of the trials between 1640 and 1660 (Ib., 358):
"In some cases, the prisoner
was questioned, but never to any greater extent than that which it is
practically impossible to avoid when a man has to defend himself without
counsel. When so questioned, the prisoners usually refused to answer."
He further says (Ib., 440):
"Soon after the Revolution of 1688, the practice of questioning the
prisoner died out." But committing magistrates were authorized to take the
examination of persons suspected, which, if not under oath, was admissible
against him on his trial, until, by the 11 & 12 Vict., ch. 2, the prisoner
was given the option whether he would speak, and warned that what he said might
be used against him. But even now, there seems to be a very well recognized and
important exception in English law to the rule that no person can be compelled
to furnish evidence against himself. A practice in bankruptcy has existed from
ancient times, and still exists, which would not be constitutionally possible
under our national bankruptcy law or under the insolvency law of any State
whose constitution contains the customary prohibition of compulsory
self-incrimination. The Bankruptcy Act of 1 James I, ch. 15, § 7 (1603),
authorized the commissioners of bankruptcy to compel, by commitment if
necessary, the bankrupt to submit to an examination touching his estate and
dealings. The provision was continued in the subsequent acts, and in 1820, in Ex
parte Cossens, Buck, Bkey. Cases, 531, 540, Lord Eldon, in the course of a
discussion of the right to examine a bankrupt, held that he could be compelled
to disclose his violations of law in respect of his trade and estate, and,
while recognizing the general principle of English law that no one could be
compelled to incriminate himself, said: "I have always understood the
proposition to admit of a qualification with respect to the jurisdiction in
bankruptcy." The act of 6 Geo. IV, ch. 16, § 36 (1825), authorized the
compulsory examination of the bankrupt "touching all matters relating
either to his trade, dealings, or estate, or which may tend to disclose any
secret grant, conveyance or
concealment of his lands." The act of 12 & 13 Vict., ch. 106, § 117
(1849), contained the same provision. Construing these acts, it was held that
the bankrupt must answer, though his answer might furnish evidence of his
crime, and even if an indictment were pending against him, and that the
evidence thus compelled was admissible on his trial for crime. Re Heath,
2 D. & Ch. 214; Re Smith, 2 D. & Ch. 230, 235; Reg. v. Scott,
Dearsley & Bell, 47; Reg. v. Cross, 7 Cox C.C. 226; Reg. v.
Widdop, L.R. 2 C.C. R. 3. The act of 46 & 47 Vict., ch. 52, § 17
(1883), which we understand to be (with some amendment not material here) the
present law, passed after the decisions cited, expressly provided that the
examination shall be taken in writing and signed by the debtor, "and may
thereafter be used in evidence against him." It has since been held that
other evidence of his testimony than that written and signed by him may be
used. Reg. v. Erdheim (1896), 2 Q.B.D. 260, and see Rex v. Pike
(1902), 1 K.B. 552. * It is to be observed
that not until 1883 did Parliament, which has an unlimited legislative power,
expressly provide that the evidence compelled from the bankrupt could be used
in proof of an indictment against him. The rule had been previously firmly
established by judicial decisions upon statutes simply authorizing a compulsory
examination. If the rule had been thought to be in conflict with "the law
of the land" of Magna Carta, "a sacred text, the nearest approach to
an irrepealable, fundamental statute' that England has ever had," 1
Pollock & Maitland, 152, it is inconceivable that such a consideration
would not have received some attention from counsel and judges. We think it is
manifest, from this review of the origin, growth, extent and limits of the exemption
from compulsory self-incrimination in the English law, that it is not regarded
as a part of the law of the land of Magna Carta or the due process of law,
which
has been deemed an equivalent
expression, but, on the contrary, is regarded as separate from and independent
of due process. It came into existence not as an essential part of due process,
but as a wise and beneficent rule of evidence developed in the course of
judicial decision. This is a potent argument when it is remembered that the
phrase was borrowed from English law, and that to that law we must look at
least for its primary meaning.
But without repudiating or
questioning the test proposed by Mr. Justice Curtis for the court, or rejecting
the inference drawn from English law, we prefer to rest our decision on broader
grounds, and inquire whether the exemption from self-incrimination is of such a
nature that it must be included in the conception of due process. Is it a
fundamental principle of liberty and justice which inheres in the very idea of
free government and is the inalienable right of a citizen of such a government?
If it is, and if it is of a nature that pertains to process of law, this court
has declared it to be essential to due process of law. In approaching such a question,
it must not be forgotten that, in a free representative government, nothing is
more fundamental than the right of the people through their appointed servants
to govern themselves in accordance with their own will, except so far as they
have restrained themselves by constitutional limits specifically established,
and that, in our peculiar dual form of government, nothing is more fundamental
than the full power of the State to order its own affairs and govern its own
people, except so far as the Federal Constitution expressly or by fair
implication has withdrawn that power. The power of the people of the States to
make and alter their laws at pleasure is the greatest security for liberty and
justice, this court has said in Hurtado v. California, supra. We are not
invested with the jurisdiction to pass upon the expediency, wisdom or justice
of the laws of the States as declared by their courts, but only to determine
their conformity with the Federal Constitution and the paramount laws enacted
pursuant to it. Under the guise of interpreting the Constitution we must
take care that we do not import into
the discussion our own personal views of what would be wise, just and fitting
rules of government to be adopted by a free people and confound them with
constitutional limitations. The question before us is the meaning of a
constitutional provision which forbids the States to deny to any person due
process of law. In the decision of this question, we have the authority to take
into account only those fundamental rights which are expressed in that
provision, not the rights fundamental in citizenship, state or National, for
they are secured otherwise, but the rights fundamental in due process, and
therefore an essential part of it. We have to consider whether the right is so
fundamental in due process that a refusal of the right is a denial of due
process. One aid to the solution of the question is to inquire how the right
was rated during the time when the meaning of due process was in a formative
state and before it was incorporated in American constitutional law. Did those
who then were formulating and insisting upon the rights of the people entertain
the view that the right was so fundamental that there could be no due process
without it? It has already appeared that, prior to the formation of the
American Constitutions, in which the exemption from compulsory
self-incrimination was specifically secured, separately, independently, and
side by side with the requirement of due process, the doctrine was formed, as
other doctrines of the law of evidence have been formed, by the course of
decision in the courts covering a long period of time. Searching further, we
find nothing to show that it was then thought to be other than a just and
useful principle of law. None of the great instruments in which we are
accustomed to look for the declaration of the fundamental rights made reference
to it. The privilege was not dreamed of for hundreds of years after Magna Carta
(1215), and could not have been implied in the "law of the land"
there secured. The Petition of Right (1629), though it insists upon the right
secured by Magna Carta to be condemned only by the law of the land, and sets
forth by way of grievance divers violations of
it, is silent upon the practice of
compulsory self-incrimination, though it was then a matter of common occurrence
in all the courts of the realm. The Bill of Rights of the first year of the
reign of William and Mary (1689) is likewise silent, though the practice of
questioning the prisoner at his trial had not then ceased. The negative
argument which arises out of the omission of all reference to any exemption
from compulsory self-incrimination in these three great declarations of English
liberty (though it is not supposed to amount to a demonstration) is supported
by the positive argument that the English Courts and Parliaments, as we have
seen, have dealt with the exemption as they would have dealt with any other
rule of evidence, apparently without a thought that the question was affected
by the law of the land of Magna Carta, or the due process of law which is its
equivalent.
We pass by the meager records of the
early colonial time, so far as they have come to our attention, as affording
light too uncertain for guidance. See Wigmore, § 2250, note 108; 2
Hennings St. at Large, 422 (Va. 1677); 1 Winthrop's History of New England, 47,
Provincial Act, 4 W. & M. Ancient Charters, Massachusetts, 214. Though it
is worthy of note that neither the declaration of rights of the Stamp Act
Congress (1765) nor the declaration of rights of the Continental Congress
(1774) nor the ordinance for the government of the Northwestern Territory
included the privilege in their enumeration of fundamental rights.
But the history of the incorporation
of the privilege in an amendment to the National Constitution is full of
significance in this connection. Five States, Delaware, Pennsylvania, New
Jersey, Georgia and Connecticut, ratified the Constitution without proposing
amendments. Massachusetts then followed with a ratification, accompanied by a
recommendation of nine amendments, none of which referred to the privilege;
Maryland with a ratification without proposing amendments; South Carolina with
a ratification accompanied by a recommendation of four amendments, none of
which referred to the privilege,
and New Hampshire with a
ratification accompanied by a recommendation of twelve amendments, none of
which referred to the privilege. The nine States requisite to put the Constitution
in operation ratified it without a suggestion of incorporating this privilege.
Virginia was the tenth State to ratify, proposing, by separate resolution, an
elaborate Bill of Rights under twenty heads, and in addition twenty amendments
to the body of the Constitution. Among the rights enumerated as "essential
and inalienable" is that no man "can be compelled to give evidence
against himself," and "no freeman ought to be deprived of his life,
liberty or property but by the law of the land." New York ratified with a
proposal of numerous amendments and a declaration of rights which the
convention declared could not be violated and were consistent with the
Constitution. One of these rights was that
"No person ought to be taken,
imprisoned or deprived of his freehold, or be exiled or deprived of his
privileges, franchises, life, liberty or property but by due process of
law;"
and another was that, "in all
criminal prosecutions, the accused . . . should not be compelled to give
evidence against himself." North Carolina and Rhode Island were the last
to ratify, each proposing a large number of amendments, including the provision
that no man "can be compelled to give evidence against himself;" and
North Carolina, that "no freeman ought to be . . . deprived of his life,
liberty or property but by the law of the land;" and Rhode Island, that
"no freeman ought to be . . . deprived of his life, liberty or property
but by the trial by jury, or by the law of the land."
Thus, it appears that four only of
the thirteen original States insisted upon incorporating the privilege in the
Constitution, and they separately and simultaneously with the requirement of
due process of law, and that three States proposing amendments were silent upon
this subject. It is worthy of note that two of these four States did not
incorporate the privilege in their own constitutions, where it would have had a
much wider field of usefulness, until many years after. New York
in 1821 and Rhode Island in 1842
(its first constitution). This survey does not tend to show that it was then in
this country the universal or even general belief that the privilege ranked
among the fundamental and inalienable rights of mankind, and, what is more
important here, it affirmatively shows that the privilege was not conceived to
be inherent in due process of law, but, on the other hand, a right separate,
independent and outside of due process. Congress, in submitting the amendments
to the several States, treated the two rights as exclusive of each other. Such
also has been the view of the States in framing their own constitutions, for in
every case, except in New Jersey and Iowa, where the due process clause or its
equivalent is included, it has been thought necessary to include separately the
privilege clause. Nor have we been referred to any decision of a state court
save one (State v. Height, 117 Iowa, 650), where the exemption has been
held to be required by due process of law. The inference is irresistible that
it has been the opinion of constitution makers that the privilege, if
fundamental in any sense, is not fundamental in due process of law, nor an
essential part of it. We believe that this opinion is proved to have been
correct by every historical test by which the meaning of the phrase can be
tried.
The decisions of this court, though
they are silent on the precise question before us, ought to be searched to
discover if they present any analogies which are helpful in its decision. The
essential elements of due process of law, already established by them, are
singularly few, though of wide application and deep significance. We are not
here concerned with the effect of due process in restraining substantive laws,
as, for example, that which forbids the taking of private property for public use
without compensation. We need notice now only those cases which deal with the
principles which must be observed in the trial of criminal and civil causes.
Due process requires that the court which assumes to determine the rights of
parties shall have jurisdiction, Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 733;
Scott v. McNeal, 154 U. S. 34; Old Wayne Life
Association
v. McDonough, 204 U. S. 8, and that
there shall be notice and opportunity for hearing given the parties, Hovey
v. Elliott, 167
U. S. 409; Roller v. Holly, 176 U. S. 398, and
see Londoner v. Denver, 210 U. S. 373.
Subject to these two fundamental conditions, which seem to be universally
prescribed in all systems of law established by civilized countries, this court
has up to this time sustained all state laws, statutory or judicially declared,
regulating procedure, evidence and methods of trial, and held them to be
consistent with due process of law. Walker v. Sauvinet, 92 U. S. 90; Re
Converse, 137
U. S. 624; Caldwell v. Texas, 137 U. S. 692; Leeper
v. Texas, 139
U. S. 462; Hallinger v. Davis, 146 U. S. 314; McNulty
v. California, 149 U. S. 645; McKane
v. Durston, 153
U. S. 684; Iowa Central v. Iowa, 160 U. S. 389; Lowe
v. Kansas, 163
U. S. 81; Allen v. Georgia, 166 U. S. 138; Hodgson
v. Vermont, 168
U. S. 262; Brown v. New Jersey, 175 U. S. 172; Bollin
v. Nebraska, 176
U. S. 83; Maxwell v. Dow, 176 U. S. 581; Simon
v. Craft, 182
U. S. 427; West v. Louisiana, 194 U. S. 258; Marvin
v. Trout, 199
U. S. 212; Rogers v. Peck, 199 U. S. 425; Howard
v. Kentucky, 200
U. S. 164; Rawlins v. Georgia, 201 U. S. 638; Felts
v. Murphy, 201
U. S. 123.
Among the most notable of these
decisions are those sustaining the denial of jury trial both in civil and
criminal cases, the substitution of informations for indictments by a grand
jury, the enactment that the possession of policy slips raises a presumption of
illegality, and the admission of the deposition of an absent witness in a
criminal case. The cases proceed upon the theory that, given a court of justice
which has jurisdiction and acts not arbitrarily, but in conformity with a
general law, upon evidence, and after inquiry made with notice to the parties
affected and opportunity to be heard, then all the requirements of due process,
so far as it relates to procedure in court and methods of trial and character
and effect of evidence, are complied with. Thus, it was said in Iowa Central
v. Iowa, 160
U. S. 393:
"But it is clear that the
Fourteenth Amendment in no way undertakes to control the
power of the State to determine by
what process legal rights may be asserted or legal obligations be enforced,
provided the method of procedure adopted gives reasonable notice and affords
fair opportunity to be heard before the issues are decided;"
and in Louisville & Nashville
Railroad Company v. Schmidt, 177 U. S. 230, 177 U. S. 236:
"It is no longer open to
contention that the due process clause of the Fourteenth Amendment to the
Constitution of the United States does not control mere forms of procedure in
state courts or regulate practice therein. All its requirements are complied with,
provided in the proceedings which are claimed not to have been due process of
law the person condemned has had sufficient notice and adequate opportunity has
been afforded him to defend;"
and in Hooker v. Los Angeles,
188 U. S. 314,
188 U. S.
318:
"The Fourteenth Amendment does
not control the power of a State to determine the form of procedure by which
legal rights may be ascertained, if the method adopted gives reasonable notice
and affords a fair opportunity to be heard;"
and in Rogers v. Peck, 199 U. S. 435:
"Due process of law, guaranteed
by the Fourteenth Amendment, does not require the State to adopt a particular
form of procedure, so long as it appears that the accused has had sufficient
notice of the accusation and an adequate opportunity to defend himself in the
prosecution."
It is impossible to reconcile the
reasoning of these cases and the rule which governed their decision with the
theory that an exemption from compulsory self-incrimination is included in the
conception of due process of law. Indeed, the reasoning for including
indictment by a grand jury and trial by a petit jury in that conception, which
has been rejected by this court in Hurtado v. California and Maxwell
v. Dow, was historically and in principle much stronger. Clearly
appreciating this, Mr. Justice Harlan, in his dissent in each of these cases,
pointed out that the inexorable logic of the reasoning of the court was to
allow the States, so far as the Federal Constitution was concerned, to compel
any person to be a witness against himself. In Missouri v. Lewis, 101 U. S. 22,
Mr. Justice Bradley, speaking
for the whole court, said, in
effect, that the Fourteenth Amendment would not prevent a State from adopting
or continuing the civil law instead of the common law. This dictum has been
approved and made an essential part of the reasoning of the decision in Holden
v. Hardy, 169
U. S. 387, 169 U. S. 389,
and Maxwell v. Dow, 176 U. S. 598.
The statement excludes the possibility that the privilege is essential to due
process, for it hardly need be said that the interrogation of the accused at
his trial is the practice in the civil law.
Even if the historical meaning of
due process of law and the decisions of this court did not exclude the
privilege from it, it would be going far to rate it as an immutable principle
of justice which is the inalienable possession of every citizen of a free
government. Salutary as the principle may seem to the great majority, it cannot
be ranked with the right to hearing before condemnation, the immunity from
arbitrary power not acting by general laws, and the inviolability of private
property. The wisdom of the exemption has never been universally assented to
since the days of Bentham; many doubt it today, and it is best defended not as
an unchangeable principle of universal justice, but as a law proved by
experience to be expedient. See Wigmore, § 2251. It has no place in the
jurisprudence of civilized and free countries outside the domain of the common
law, and it is nowhere observed among our own people in the search for truth
outside the administration of the law. It should, must and will be rigidly
observed where it is secured by specific constitutional safeguards, but there
is nothing in it which gives it a sanctity above and before constitutions
themselves. Much might be said in favor of the view that the privilege was
guaranteed against state impairment as a privilege and immunity of National
citizenship, but, as has been shown, the decisions of this court have foreclosed
that view. There seems to be no reason whatever, however, for straining the
meaning of due process of law to include this privilege within it, because,
perhaps, we may think it of great value. The States had guarded the privilege
to the satisfaction of their own
people up to the adoption of the Fourteenth Amendment. No reason is perceived
why they cannot continue to do so. The power of their people ought not to be
fettered, their sense of responsibility lessened, and their capacity for sober
and restrained self-government weakened by forced construction of the Federal
Constitution. If the people of New Jersey are not content with the law as
declared in repeated decisions of their courts, the remedy is in their own
hands. They may, if they choose, alter it by legislation, as the people of
Maine did when the courts of that State made the same ruling. State v.
Bartlett, 55 Maine 200; State v.Lawrence, 57 Maine 574; State v.
Cleaves, 59 Maine 298; State v. Banks, 78 Maine 490, 492; Rev.Stat.
ch. 135, § 19.
We have assumed only for the purpose
of discussion that what was done in the case at bar was an infringement of the
privilege against self-incrimination. We do not intend, however, to lend any
countenance to the truth of that assumption. The courts of New Jersey, in
adopting the rule of law which is complained of here, have deemed it consistent
with the privilege itself, and not a denial of it. The reasoning by which this
view is supported will be found in the cases cited from New Jersey and Maine, and
see Reg. v. Rhodes (1899), 1 Q.B. 77; Ex parte Kops (1894), A.C.
650. The authorities upon the question are in conflict. We do not pass upon the
conflict, because, for the reasons given, we think that the exemption from
compulsory self-incrimination in the courts of the States is not secured by any
part of the Federal Constitution.
Judgment affirmed.
* I In certain offenses, which may
be generally described as embezzlements, the evidence compelled from a bankrupt
cannot be used against him. 24 & 25 Vict., ch. 96, § 85; 53 & 54 Vict.,
ch. 71, § 27.
MR JUSTICE HARLAN dissenting.
I feel constrained by a sense of
duty to express my nonconcurrence in the action of the court in this present
case.
Twining and Cornell were indicted
for a criminal offense in a New Jersey court, and, having been found guilty by
a jury, were sentenced, respectively, to imprisonment for six and
four years. The judgment of
conviction was affirmed, first in the Supreme Court of the State, afterwards in
the Court of Errors and Appeals. The case was brought here for review, and the
accused assigned for error that the mode of proceeding during the trial was
such as to deny them a right secured by the Constitution of the United States,
namely, the right of an accused not to be compelled to testify against himself.
Upon this point, the court, in the
opinion just delivered, says:
"We have assumed, only for the
purpose of discussion, that what was done in the case at bar was an
infringement of the privilege against self-incrimination."
But the court takes care to add
immediately:
"We do not intend, however, to
lend any countenance to the truth of that assumption. The courts of New Jersey,
in adopting the rule of law which is complained of here, have deemed it consistent
with the privilege itself."
It seems to me that the first
inquiry on this writ of error should have been whether, upon the record before
us, that which was actually done in the trial court amounted, in law, to a
violation of that privilege. If the court was not prepared to hold, upon the
record before it, that the privilege of immunity from self-incrimination had
been actually violated, then, I submit, it ought not to have gone further and
held it to be competent for a State, despite the granting of immunity from
self-incrimination by the Federal Constitution, to compel one accused of crime
to be a witness against himself. Whether a State is forbidden by the
Constitution of the United States to violate the principle of immunity from
self-incrimination is a question which it is clearly unnecessary to decide now,
unless what was, in fact, done at the trial was inconsistent with that
immunity. But, although expressly declaring that it will not lend any countenance
to the truth of the assumption that the proceedings below were in
disregard of the maxim, Nemo tenetur seipsum accusare, and without
saying whether there was, in fact, any substantial violation of the privilege
of immunity from self-incrimination,
the court, for the purpose only of discussion, has entered upon the academic
inquiry whether a State may, without violating the Constitution of the United
States, compel one accused of crime to be a witness against himself -- a
question of vast moment, one of such transcendent importance that a court ought
not to decide it unless the record before it requires that course to be
adopted. It is entirely consistent with the opinion just delivered that the
court thinks that what is complained of as having been done at the trial of the
accused was not, in law, an infringement of the privilege of immunity from
self-incrimination. Yet, as stated, the court, in its wisdom, has forborne to
say whether, in its judgment, that privilege was, in fact, violated in the
state court, but, simply for the purpose of discussion, has proceeded on
the assumption that the privilege was disregarded at the trial.
As a reason why it takes up first
the question of the power of a State, so far as the Federal Constitution is
concerned, to compel self-incrimination, the court says that, if the right here
asserted is not a Federal right, that is an end of the case, and it must not go
further. It would, I submit, have been more appropriate to say that, if no
ground whatever existed, under the facts disclosed by the record, to contend
that a Federal right had been violated, this court would be without authority
to go further and express its opinion on an abstract question relating to the
powers of the State under the Constitution.
What I have suggested as to the
proper course of procedure in this court is supported by our action in Shoener
v. Pennsylvania, 207 U. S. 188, 207 U. S. 195.
That was a criminal case, brought here from the Supreme Court of Pennsylvania
-- the accused, who was convicted, insisting that the proceeding against him in
the state court was in violation of the clause of the Federal Constitution
declaring that no person shall be subject for the same offense to be twice put
in jeopardy of life or limb. Upon looking into the record of that case, we
found that the accused had not been, previously, put in legal jeopardy for
the same offense. We went no
further, but dismissed the writ of error, declining to consider the grave
constitutional question pressed upon our attention, namely, whether the jeopardy
clause of the Federal Constitution operated as a restraint upon the States
in the execution of their criminal laws. But as a different course has been
pursued in this case, I must of necessity consider the sufficiency of the
grounds upon which the court bases its present judgment of affirmance.
The court, in its consideration of
the relative rights of the United States and of the several States, holds in
this case that, without violating the Constitution of the United States,
a State can compel a person accused of crime to testify against himself.
In my judgment, immunity from self-incrimination is protected against hostile
state action not only by that clause in the Fourteenth Amendment declaring that
"no State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States," but by the clause, in the
same Amendment, "nor shall any State deprive any person of life, liberty
or property, without due process of law." No argument is needed to support
the proposition that, whether manifested by statute or by the final judgment of
a court, state action, if liable to the objection that it abridges the
privileges or immunities of National citizenship, must also be regarded as
wanting in the due process of law enjoined by the Fourteenth Amendment when
such state action substantially affects life, liberty or property.
At the time of the adoption of the
Fourteenth Amendment, immunity from self-incrimination was one of the
privileges or immunities belonging to citizens, for the reason that the Fifth
Amendment, speaking in the name of the People of the United States, had
declared, in terms, that no person "shall be compelled, in any criminal
case, to be a witness against himself; nor be deprived of life, liberty, or
property, without due process of law." That Amendment, it was long ago
decided, operated as a restriction on the exercise of powers br the United
States or by Federal tribunals and agencies, but
did not impose any restraint upon a
State or upon a state tribunal or agency. The original Amendments of the
Constitution had their origin, as all know, in the belief of many patriotic
statesmen in the States then composing the Union that, under the Constitution
as originally submitted to the People for adoption or rejection, the National
Government might disregard the fundamental principles of Anglo-American liberty
for the maintenance of which our fathers took up arms against the mother
country.
What, let me inquire, must then have
been regarded as principles that were fundamental in the liberty of the
citizen? Every student of English history will agree that, long before the
adoption of the Constitution of the United States, certain principles affecting
the life and liberty of the subject had become firmly established in the
jurisprudence of England, and were deemed vital to the safety of freemen, and
that among those principles was the one that no person accused of crime could
be compelled to be a witness against himself. It is true that, at one time in
England, the practice of "questioning the prisoner" was enforced in
Star Chamber proceedings. But we have the authority of Sir James Fitzjames
Stephen, in his History of the Criminal Law of England, for saying that, soon
after the Revolution of 1688, the practice of questioning the prisoner died
out. Vol. 1, p. 440. The liberties of the English people had then been placed
on a firmer foundation. Personal liberty was thenceforward jealously guarded.
Certain it is that, when the present Government of the United States was
established, it was the belief of all liberty-loving men in America that real,
genuine freedom could not exist in any country that recognized the power of
government to compel persons accused of crime to be witnesses against
themselves. And it is not too much to say that the wise men who laid the
foundations of our constitutional government would have stood aghast at the
suggestion that immunity from self-incrimination was not among the essential,
fundamental principles of English law. An able writer on English and American
constitutional
law has recently well said:
"When the first Continental
Congress of 1774 claimed to be entitled to the benefit not only of the common
law of England, but of such of the English statutes as existed at the time of
the colonization, and which they had by experience found to be applicable to
their several local and other circumstances, they simply declared the basic
principle of English law that English subjects going to a new and uninhabited country
carry with them, as their birthright, the laws of England existing when the
colonization takes place. . . . English law, public and private, continued in
force in all the States that became sovereign in 1776, each State declaring for
itself the date from which it would recognize it."
Taylor, The Science of
Jurisprudence, 436, 437. It is indisputably established that, despite
differences in forms of government, the people in the colonies were a unit as
to certain leading principles, among which was the principle that the people
were entitled to "enjoy the rights and privileges of British-born subjects
and the benefit of the common laws of England," 1 Story, § 163, and that
(to use the words of the Continental Congress of 1774),
"by emigration to the colonies,
the people by no means forfeited, surrendered or lost any of those rights, but
that they were then, and their descendants are now, entitled to the exercise
and enjoyment of them as their local and other circumstances enable them to
exercise and enjoy."
Can there be any doubt that, at the
opening of the War of Independence, the people of the colonies claimed as one
of their birthrights the privilege of immunity from self-incrimination? This
question can be answered in but one way. If, at the beginning of the
Revolutionary War, any lawyer had claimed that one accused of crime could
lawfully be compelled to testify against himself, he would have been laughed at
by his brethren of the bar, both in England and America. In accordance with
this universal view as to the rights of freemen, Virginia, in its Convention of
May, 1776 -- in advance, be it observed, of the Declaration of Independence --
made a
Declaration (drawn entirely by the
celebrated George Mason) which set forth certain rights as pertaining to the
people of that State and to their posterity "as the basis and foundation
of government." Among those rights (that famous Declaration distinctly
announced) was the right of a person not to be compelled to give evidence against
himself. Precisely the same declaration was made in Pennsylvania by its
Convention assembled at Philadelphia on the fifteenth of July, 1776. Vermont,
by its Convention of 1777, said: "Nor can he [a man accused of crime] be
compelled to give evidence against himself." Maryland, in 1776, declared
that "no man ought to be compelled to give evidence against himself, in a
court of criminal law." Massachusetts, in its constitution of 1780,
provided that "no subject shall be . . . compelled to accuse, or to
furnish evidence against himself." The same provision was made by New
Hampshire in its constitution of 1784. And North Carolina, as early as 1776,
recognized the privilege of immunity from self-incrimination by declaring, in
its constitution that a man "shall not be compelled to give evidence
against himself." These explicit declarations in the constitutions of
leading colonies, before the submission of the National Constitution to the
People for adoption or rejection, caused patriotic men whose fidelity to American
liberty no one doubted to protest that that instrument was defective in that it
furnished no express guaranty against the violation by the National Government
of the personal rights that inhered in liberty. Nothing is made clearer by the
history of our country than that the Constitution would not have been accepted
by the requisite number of States but for the understanding, on all sides, that
it should be promptly amended so as to meet this objection. So, when the first
Congress met, there was entire unanimity among statesmen of that day as to the
necessity and wisdom of having a National Bill of Rights which would, beyond
all question, secure against Federal encroachment all the rights, privileges
and immunities which, everywhere and by everybody in America, were then
recognized as
fundamental in Anglo-American
liberty. Hence the prompt incorporation into the Supreme Law of the Land of the
original amendments. By the Fifth Amendment, as already stated, it was
expressly declared that no one should be compelled in a criminal case to be a
witness against himself. Those Amendments being adopted by the Nation, the
People no longer feared that the United States or any Federal agency could
exert power that was inconsistent with the fundamental rights recognized in
those Amendments. It is to be observed that the Amendments introduced no
principle not already familiar to liberty-loving people. They only put in the
form of constitutional sanction, as barriers against oppression, the principles
which the people of the colonies, with entire unanimity, deemed vital to their
safety and freedom.
Still more. At the close of the late
Civil War, which had seriously disturbed the foundations of our governmental
system, the question arose whether provision should not be made by
constitutional amendments to secure against attack by the States the rights,
privileges and immunities which, by the original Amendments, had been placed
beyond the power of the United States or any Federal agency to impair or
destroy. Those rights, privileges and immunities had not then, in terms, been
guarded by the National Constitution against impairment or destruction by the
States, although, before the adoption of the Fourteenth Amendment, every State,
without, perhaps, an exception, had, in some form, recognized, as part of its
fundamental law, most, if not all, the rights and immunities mentioned in the
original Amendments, among them immunity from self-incrimination. This is made
clear by the opinion of the court in the present case. The court says:
"The exemption from testimonial
compulsion, that is, from disclosure as a witness of evidence against one's
self, forced by any form of legal process, is universal in American law,
though there may be a difference as to its exact scope and limits. At the time
of the formation of the Union, the principle that no person could be compelled
to be a witness against himself
had become embodied in the common
law and distinguished it from all other systems of jurisprudence. It was
generally regarded then, as now, as a privilege of great value, a protection to
the innocent though a shelter to the guilty, and a safeguard against heedless,
unfounded or tyrannical prosecutions."
Such was the situation, the court
concedes, at the time the Fourteenth Amendment was prepared and adopted. That
Amendment declared that all persons born or naturalized in the United States
and subject to its jurisdiction are citizens of the United States, "and of
the State wherein they reside." Momentous as this declaration was in its
political consequences, it was not deemed sufficient for the complete
protection of the essential rights of National citizenship and personal
liberty. Although the Nation was restrained by existing constitutional
provisions from encroaching upon those rights, yet, so far as the Federal
Constitution was concerned, the States could at that time have dealt with those
rights upon the basis entirely of their own constitution and laws. It was
therefore deemed necessary that the Fourteenth Amendment should, in the name of
the United States, forbid, as it expressly does, any State from making or
enforcing a law that will abridge the privileges or immunities of citizens of
the United States, or deprive any person of life, liberty or property without
due process of law. The privileges and immunities mentioned in the original
Amendments, and universally regarded as our heritage of liberty from the common
law, were thus secured to every citizen of the United States and placed beyond
assault by any government, Federal or state, and due process of law, in all
public proceedings affecting life, liberty or property, were enjoined equally
upon the Nation and the States.
What, then, were the privileges and
immunities of citizens of the United States which the Fourteenth Amendment
guarded against encroachment by the States? Whatever they were, that Amendment
placed them beyond the power of any State to abridge. And what were the rights
of life and liberty which the Amendment protected? Whatever they were, that
Amendment
guarded them against any hostile
state action that was wanting in due process of law.
I will not attempt to enumerate all
the privileges and immunities which at that time belonged to citizens of
the United States. But I confidently assert that among such privileges was the
privilege of immunity from self-incrimination which the People of the United
States, by adopting the Fifth Amendment, had placed beyond Federal
encroachment. Can such a view be deemed unreasonable in the face of the fact,
frankly conceded in the opinion of the court, that, at common law, as well at
the time of the formation of the Union and when the Fourteenth Amendment was
adopted, immunity from self-incrimination was a privilege "universal in American
law," was everywhere deemed "of great value, a protection to the
innocent though a shelter to the guilty and a safeguard against heedless,
unfounded or tyrannical prosecutions"? Is it conceivable that a privilege
or immunity of such a priceless character, one expressly recognized in the
Supreme Law of the Land, one thoroughly interwoven with the history of
Anglo-American liberty, was not in the mind of the country when it declared, in
the Fourteenth Amendment, that no State shall abridge the privileges or immunities
of citizens of the United States? The Fourteenth Amendment would have been
disapproved by every State in the Union if it had saved or recognized the right
of a State to compel one accused of crime, in its courts, to be a witness
against himself. We state the matter in this way because it is common knowledge
that the compelling of a person to criminate himself shocks or ought to shock
the sense of right and justice of every one who loves liberty. Indeed, this
court has not hesitated thus to characterize the Star Chamber method of
compelling an accused to be a witness against himself. In Boyd v. United
States, 116
U. S. 616, 116 U. S. 631,
116 U. S.
633, will be found some weighty observations by Mr. Justice Bradley,
delivering the judgment of the court, as to the scope and meaning of the Fourth
and Fifth Amendments. The court, speaking by that eminent jurist, said:
"Now it is elementary knowledge
that one cardinal rule of the court of chancery is never to decree a discovery
which might tend to convict the party of a crime, or to forfeit his
property. And any compulsory discovery by extorting the party's oath,
or compelling the production of his private books and papers, to convict him
of crime, or to forfeit his property, is contrary to the principles of a
free government. It is abhorrent to the instincts of an Englishman; it is
abhorrent to the instincts of an American. It may suit the purposes of despotic
power, but it cannot abide the pure atmosphere of political liberty and
personal freedom."
Again:
"We have already noticed the
intimate relation between the two Amendments. They throw great light on each
other. For the 'unreasonable searches and seizures' condemned in the Fourth
Amendment are almost always made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is condemned in the Fifth
Amendment, and compelling a man 'in a criminal case to be a witness against
himself,' which is condemned in the Fifth Amendment, throws light on the
question as to what is an 'unreasonable search and seizure' within the meaning
of the Fourth Amendment. And we have been unable to perceive that the seizure
of a man's private books and papers to be used in evidence against him is
substantially different from compelling him to be a witness against
himself."
These observations were referred to
approvingly in Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 580,
142 U. S.
581.
I am of opinion that as immunity
from self-incrimination was recognized in the Fifth Amendment of the
Constitution and placed beyond violation by any Federal agency, it should be
deemed one of the immunities of citizens of the United States which the
Fourteenth Amendment, in express terms, forbids any State from abridging -- as
much so, for instance, as the right of free speech (Amdt. II), or the exemption
from cruel or unusual punishments (Amdt. VIII), or the exemption from being put
twice in jeopardy of life or limb for the same offense (Amdt. V), or the
exemption from unreasonable searches
and seizures of one's person, house,
papers or effects (Amdt. IV). Even if I were anxious or willing to cripple the
operation of the Fourteenth Amendment by strained or narrow interpretations, I
should feel obliged to hold that, when that Amendment was adopted, all these
last-mentioned exemptions were among the immunities belonging to citizens of
the United States which, after the adoption of the Fourteenth Amendment, no
State could impair or destroy. But, as I read the opinion of the court, it will
follow from the general principles underlying it, or from the reasoning pursued
therein, that the Fourteenth Amendment would be no obstacle whatever in the way
of a state law or practice under which, for instance, cruel or unusual
punishments (such as the thumb screw, or the rack or burning at the stake)
might be inflicted. So of a state law which infringed the right of free speech,
or authorized unreasonable searches or seizures of persons, their houses,
papers or effects, or a state law under which one accused of crime could be put
in jeopardy twice or oftener, at the pleasure of the prosecution, for the same
offense.
It is my opinion also that the right
to immunity from self-incrimination cannot be taken away by any State
consistently with the clause of the Fourteenth Amendment that relates to the
deprivation by the State of life or liberty without due process of law. This
view is supported by what Mr. Justice Miller said for the court in Davidson
v. New Orleans, 96
U. S. 97, 101, 96 U. S. 102.
That great judge, delivering the opinion in that case, said:
"The prohibition against depriving
the citizen or subject of his life, liberty, or property without due process of
law is not new in the constitutional history of the English race. It is not new
in the constitutional history of this country, and it was not new in the
Constitution of the United States when it became a part of the Fourteenth
Amendment in the year 1866."
After observing that the equivalent
of the phrase "due process of law," according to Lord Coke, is found
in the words "law of the land," in the Great Charter, in connection
with the guarantees of the rights of the subject
against the oppression of the crown,
the court said:
"In the series of amendments to
the Constitution of the United States proposed and adopted immediately after
the organization of the government, which were dictated by the jealousy of the
States as further limitations upon the power of the Federal Government, it is
found in the Fifth, in connection with other guarantees of personal rights
of the same character."
Among these guarantees, this court distinctly said, was protection against being
twice tried for the same offense, and protection "against the accused's
being compelled, in a criminal case, to testify against himself."
Again, said the court:
"It is easy to see that, when
the great barons of England wrung from King John, at the point of the sword,
the concession that neither their lives nor their property should be disposed
of by the crown except as provided by the law of the land, they meant by 'law
of the land' the ancient and customary laws of the English people, or laws
enacted by the Parliament of which those barons were a controlling element. It
was not in their minds, therefore, to protect themselves against the enactment
of laws by the Parliament of England. But when, in the year of grace 1866,
there is placed in the Constitution of the United States a declaration that 'no
State shall deprive any person of life, liberty, or property without due
process of law,' can a State make anything due process of law which, by its own
legislation, it chooses to declare such? To affirm this is to hold that the
prohibition to the States is of no avail, or has no application where the
invasion of private rights is affected under the forms of state
legislation."
I cannot support any judgment
declaring that immunity from self-incrimination is not one of the privileges or
immunities of National citizenship, nor a part of the liberty guaranteed by the
Fourteenth Amendment against hostile state action. The declaration of the
court, in the opinion just delivered, that immunity from self-incrimination is
of great value, a protection to the innocent, and a safeguard against unfounded
and tyrannical prosecutions, meets my cordial
approval. And the
court having heretofore, upon the fullest consideration, declared that the
compelling of a citizen of the United States, charged with crime, to be a
witness against himself was a rule abhorrent to the instincts of Americans, was
in violation of universal American law, was contrary to the principles of free
government and a weapon of despotic power which could not abide the pure
atmosphere of political liberty and personal freedom, I cannot agree that a
State may make that rule a part of its law and binding on citizens despite the
Constitution of the United States. No former decision of this court requires
that we should now so interpret the Constitution.