U.S. Supreme Court

TWINING v. STATE OF NEW JERSEY, 211 U.S. 78 (1908)

211 U.S. 78

ALBERT C. TWINING and David C. Cornell, Plffs. in Err.,v.

STATE OF NEW JERSEY.

No. 10.

Argued March 19, 20, 1908.

Decided November 9, 1908.

'Every director, officer, agent, or clerk of any trust company who wilfully 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 wilfully or knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor and punished accordingly.' 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

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.

'Now, gentlemen, was this paper false? In the first place, 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:

'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?

'That paper 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 stay 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 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.

obligation. It is simply a right they have 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.'

'Now, gentlemen, if you believe that 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 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. And yet he has sat here and not gone upon the stand to deny it. 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 Further, in that part of the charge relating to the exhibition of the paper to the examiner, the judge said:

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 fact 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 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.

Messrs. Robert H. McCarter, H. M. Ncvius, and Nelson B. Gaskill for defendant in error.

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

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

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

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

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

'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 the 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.' 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):

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 14th 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, 21 L. ed. 929; and in Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co.  111 U.S. 746 , 28 L. ed. 585, 4 Sup. Ct. Rep. 652. 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 14th 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 14th 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, 591 , 44 S. L. ed. 597, 601, 20 Sup. Ct. Rep. 448, 494): '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 assem-

bly 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, 551 , 23 S. L. ed. 588, 591. And see Hodges v. United States,  203 U.S. 1 , 51 L. ed. 65, 27 Sup. Ct. Rep. 6. 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. 79; Re Kemmler,  136 U.S. 436, 448 , 34 S. L. ed. 519, 524, 10 Sup. Ct. Rep. 930; Duncan v. Missouri,  152 U.S. 377, 382 , 38 S. L. ed. 485, 487, 14 Sup. Ct. Rep. 570. 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, 18 L. ed. 745); the right to petition Congress for a redress of grievances (United States v. Cruikshank, supra); the right to vote for national officers (Ex parte Yarbrought,  110 U.S. 651 , 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Wiley v. Sinkler,  179 U.S. 58 , 45 L. ed. 84, 21 Sup. Ct. Rep. 17); the right to enter the public lands (United States v. Waddell,  112 U.S. 76 , 28 L. ed. 673, 5 Sup. Ct. Rep. 35); 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 , 36 L. ed. 429, 12 Sup. Ct. Rep. 617); and the right to inform the United States authorities of violation of its laws (Re Quarles,  158 U.S. 532 , 39 L. ed. 1080, 15 Sup. Ct. Rep. 959).

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 14th Amendment protects against state action. This view has been, at different times, expressed by justices of this court (Mr. Justice Field in O'Neil v. Vermont,  144 U.S. 323, 361 , 36 S. L. ed. 450, 466, 12 Sup. Ct. Rep. 693; Mr. Justice Harlan in the same case, 370, and in Maxwell v. Dow, supra, 606, 671), 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 7th Amendment (Walker v. Sauvinet,  92 U.S. 90 , 23 L. ed. 678), and the right to bear arms, guaranteed by the 2d Amendment (Presser v. Illinois,  116 U.S. 252 , 29 L. ed. 615, 6 Sup. Ct. Rep. 580), have been distinctly held not to be privileges and immunities of citizens of the United States, guaranteed by the 14th Amendment against abridgment by the states, and in effect the same decision was made in respect of the guaranty against prosecution, except by indictment of a grand jury, contained in the 5th Amendment (Hurtado v. California,  110 U.S. 516 , 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292),

and in respect of the right to be confronted with witnesses, contained in the 6th Amendment (West v. Louisiana, 191 U.S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep. 650). 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 5th Amendment, and the trial by jury, guaranteed by the 6th Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the 14th 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 14th 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 14th Amendment against abridgment by the states.

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

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,  1 69 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

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

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,  1 69 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

'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 scupulously and I think even pedantically