211 U.S. 78 (1908)


The case was a prosecution against Twining and Cornell in New Jersey state court for knowingly exhibiting a false banking paper to a state bank examiner. At trial, the judge, in his instructions to the jury, commented on the fact that Twining and Cornell did not take the stand to testify:


'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 [211 U.S. 78, 82]   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.'


And again:


 '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 [witness] 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.

The defendants were convicted.

“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.”


Mr. Justice Moody delivered the opinion of the court:


. . . 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.

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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 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 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, 169 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; 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.

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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.                                                                                         *                                                                                              *                                                                                              *

. . . 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.

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Judgment affirmed.

Justice Harlan dissents.