ALBERT C. TWINING and David C. Cornell, Plffs. in Err., v. STATE OF NEW
Argued March 19, 20, 1908. Decided November 9, 1908.
[211 U.S. 78, 79] 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 & 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:
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 [211 U.S. 78, 80] 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 Company, 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:
Further, in that part of the charge relating to the exhibition of the paper to the examiner, the judge said:
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 14th Amendment of the Constitution of the United States.
Messrs. John G. Johnson, Marshall Van Winkle, William W. Gooch, Herbert C. Smyth, and Frederic C. Scofield for plaintiffs in error.
[211 U.S. 78, 86] Messrs. Robert H. McCarter, H. M. Ncvius, and Nelson B. Gaskill for defendant in error.
[211 U.S. 78, 90]
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 of 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, 39 Atl. 651; State v. Wines, 65 N. J. L. 31, 46 Atl. 702; State v. Zdanowicz, 69 N. J. L. 619, 55 Atl. 743; State v. Banusik (N. J.) 64 Atl. 994), permitted such an inference to be drawn. The judicial act of the highest court of the [211 U.S. 78, 91] state, in authoritatively construing and enforcing its laws, is the act of the state. Ex parte Virginia, 100 U.S. 339, 25 L. ed. 676; Scott v. McNeal, 154 U.S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. The general question, therefore, is, whether such a law violates the 14th 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 Right; Maryland had provided in her Constitution (1776) that 'no man ought to be compelled to give evidence against [211 U.S. 78, 92] himself, in a common court of law, or in any other court, but in such cases as have been usually practised 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, 59 L.R.A. 437, 94 Am. St. Rep. 323, 91 N. W. 935. 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 14th Amendment, and the state, at least until then, might give, modify, or withhold the privilege at its will. The 14th 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 [211 U.S. 78, 93] York, 192 U.S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372; Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 52 L. ed. 327, 28 Sup. Ct. Rep. 178. The defendants contend, in the first place, that the exemption from selfincrimination is one of the privileges and immunities of citizens of the United States which the 14th Amendment forbids the states to abridge. It is not argued that the defendants are protected by that part of the 5th 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, 8 L. ed. 672; Spies v. Illinois, 123 U.S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, 22; Brown v. New Jersey, 175 U.S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Barrington v. Missouri, 205 U.S. 483, 51 L. ed. 890, 27 Sup. Ct. Rep. 582. But it is argued that this privilege is one of the fundamental rights of national citizenship, placed under national protection by the 14th 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 14th 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 14th Amendment, came under early consideration in the Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394. 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 slaughterhouses. 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 [211 U.S. 78, 94] 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 14th 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. 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, Fed. Cas. No. 3,230, is then quoted, approved, and 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 [211 U.S. 78, 95] and under the protection of the states were not given the security of national protection by this clause of the 14th 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 14th Amendment, rights of national citizenship, protected by the national Constitution. Said Mr. Justice Field (p. 95):
The defendants, however, do not stop here. They appeal to another clause of the 14th 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, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. If this is so, it is not because those rights are enumerated in the first eight Amendment, but because they are of such a nature that they are included in the conception of due process of law. Few [211 U.S. 78, 100] 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 Charta 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.' Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Davidson v. New Orleans, 96 U.S. 97, 24 L. ed. 616; 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 Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 280, 15 L. ed. 372, 376 (approved in Hallinger v. Davis, 146 U.S. 314, 320, 36 S. L. ed. 986, 989, 13 Sup. Ct. Rep. 105; Holden v. Hardy, 169 U.S. 366, 390, 42 S. L. ed. 780, 790, 18 Sup. Ct. Rep. 383; but see Lowe v. Kansas, 163 U.S. 81, 85, 41 S. L. ed. 78, 79, 16 Sup. Ct. Rep. 1031). Of course, the part of the Constitution then [211 U.S. 78, 101] before the court was the 5th Amendment. If any different meaning of the same words, as they are used in the 14th 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 in this country.' Hurtado v. California, 110 U.S. 516, 528, 28 S. L. ed. 232, 236, 4 Sup. Ct. Rep. 111, 117, 292.
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 practised 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 straight jacket, only to be unloosed by constitutional amendment. That, said Mr. Justice Matthews, in the same case, p. 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, 69 U.S. 366, 388, 42 S. L. ed. 780, 789, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U.S. 172, 175, 44 S. L. ed. 119, 120, 20 Sup. Ct. Rep. 77.
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 Wheat. 235, 244, 4 L. ed. 559, 561 (approved in Hurtado v. California, 110 U.S. 516, 527, 28 S. L. ed. 232, 235, 4 Sup. Ct. Rep. 111, 292; Leeper v. Texas, 139 U.S. 462, 468, 35 S. L. ed. 225, 227, 11 Sup. Ct. Rep. 577; Scott v. McNeal, 154 U.S. 34, 45, 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108). 'This court has never attempted to define [211 U.S. 78, 102]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, 389, 42 S. L. ed. 780, 790, 18 Sup. Ct. Rep. 383, 387. '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.' Re Kemmler, 136 U.S. 436, 448, 34 S. L. ed. 519, 524, 10 Sup. Ct. Rep. 930, 934. '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, 263, 48 S. L. ed. 965, 969, 24 Sup. Ct. Rep. 650, 652.
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 Charta, 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, Ev. 2250 (see for the Colonies, note 108); Hallam's Constitutional History of England, chapter 8, Widdleton's American ed. vol. 2, p. 37 (describing the criminal jurisdiction of the court of star chamber); Bentham's Rationale of Judicial Evidence, book 9, chap. 3, 4.
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 [211 U.S. 78, 103] 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:
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 [211 U.S. 78, 104] any duty to respect it. Stephen says of the trials between 1640 and 1660 ( Id. 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 (Id. 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. chap. 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., chap. 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, Bankr. Cas. 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., chap. 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 [211 U.S. 78, 105] secret grant, conveyance, or concealment of his lands.' The act of 12 & 13 Vict. chap. 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 Deacon & C. 214; Re Smith, 2 Deacon & C. 230, 235; Reg. v. Scott, Dears. & B. C. C. 47; Reg. v. Cross, 7 Cox, C. C. 226; Queen v. Widdop, L. R. 2 C. C. 3. The act of 46 & 47 Vict. chap. 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. Queen v. Erdheim [211 U.S. 78, 1896] 2 Q. B. 260, and see King v. Pike [211 U.S. 78, 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 Charta, 'a sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had' (1 Pollock & M. History of English Law, 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 Charta or the due process of law, which
In certain offenses, which may be generally described as embezzlements, the evidence compelled from a bankrupt cannot be used against him. 24 & 25 Vict. chap. 96, 85; 53 & 54 Vict. chap. 71, 27. [211 U.S. 78, 106] 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, 110 U.S. 516, 527, 28 S. L. ed. 232, 235, 4 Sup. Ct. Rep. 111, 292. 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 [211 U.S. 78, 107] 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 Charta (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 Charta to be condemned only by the law of the land, and sets forth, by way of grievance, divers violations of [211 U.S. 78, 108] 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 Charta, 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, Ev. 2250, note 108; 2 Hening's Stat. at L. 422 ( 1676) Va.; 1 Winthrop's History of New England, 47, provincial act, 4 Wm. & Mary, 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, [211 U.S. 78, 109] 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 state 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 [211 U.S. 78, 110] 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, 59 L.R. A. 437, 94 Am. St. Rep. 323, 91 N. W. 935), 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, 733, 24 S. L. ed. 565, 572; Scott v. McNeal, 154 U.S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Old Wayne Mut. Life Asso [211 U.S. 78, 111] v. McDonough, 204 U.S. 8, 51 L. ed. 345, 27 Sup. Ct. Rep. 236), and that there shall be notice and opportunity for hearing given the parties. ( Hovey v. Elliott, 167 U.S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841; Roller v. Holly, 176 U.S. 398, 44 L. ed. 520, 20 Sup. Ct. Rep. 410; and see Londoner v. Denver, 210 U.S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep. 708). 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, 23 L. ed. 678; Re Converse, 137 U.S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191; Caldwell v. Texas, 137 U.S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224; Leeper v. Texas, 139 U.S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Hallinger v. Davis, 146 U.S. 314, 36 L. ed. 986, 13 Sup. Ct. Rep. 105; McNulty v. California, 149 U.S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959; McKane v. Durston, 153 U.S. 684, 38 L. ed. 867, 14 Sup. Ct. Rep. 913; Iowa C. R. Co. v. Iowa, 160 U.S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Lowe v. Kansas, 163 U.S. 81, 41 L. ed. 78, 16 Sup. Ct. Rep. 1031; Allen v. Georgia, 166 U.S. 138, 41 L. ed. 949, 17 Sup. Ct. Rep. 525; Hodgson v. Vermont, 168 U.S. 262, 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Brown v. New Jersey, 175 U.S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Bolln v. Nebraska, 176 U.S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287; Maxwell v. Dow, 176 U.S. 581, 44 L. ed. 597, 20 Sup. Ct. Rep. 448, 494; Simon v. Craft, 182 U.S. 427, 45 L. ed. 1165, 21 Sup. Ct. Rep. 836; West v. Louisiana, 194 U.S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep. 650; Marvin v. Trout, 199 U.S. 212, 50 L. ed. 157, 26 Sup. Ct. Rep. 31; Rogers v. Peck, 199 U.S. 425, 50 L. ed. 256, 26 Sup. Ct. Rep. 87; Howard v. Kentucky, 200 U.S. 164, 50 L. ed. 421, 26 Sup. Ct. Rep. 189; Rawlins v. Georgia, 201 U.S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560; Felts v. Murphy, 201 U.S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366.
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 C. R. Co. v. Iowa, supra, p. 393: 'But it is clear that the 14th Amendment in no way undertakes to control the [211 U.S. 78, 112] power of a state to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and accords fair opportunity to be heard before the issues are decided;' and in Louisville & N. R. Co. v. Schmidt, 177 U.S. 236, 44 L. ed. 750, 20 Sup. Ct. Rep. 622: 'It is no longer open to contention that the due process clause of the 14th 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, 318, 47 S. L. ed. 487, 491, 63 L.R.A. 471, 479, 23 Sup. Ct. Rep. 395, 397: 'The 14th 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 if Rogers v. Peck, supra, p. 435: 'Due process of law guaranteed by the 14th 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 ury 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 (Bowman v. Lewis) 101 U.S. 22, 25 L. ed. 989, Mr. Justice Bradley, speaking [211 U.S. 78, 113] for the whole court, said, in effect, that the 14th 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, 389, 42 S. L. ed. 789, 790, 18 Sup. Ct. Rep. 383, and Maxwell v. Dow, supra, 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 to-day, 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, Ev. 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 [211 U.S. 78, 114] to the satisfaction of their own people up to the adoption of the 14th 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 Me. 200; State v. Lawrence, 57 Me. 574; State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422; State v. Banks, 78 Me. 492, 7 Atl. 269; Rev. Stat. chap. 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 Queen v. Rhodes [211 U.S. 78, 1899] 1 Q. B. 77; Ex parte Kops [211 U.S. 78, 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.