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of Congress to the passage of such laws concerning such commerce, interstate and foreign, within the principles upon which the Wilson act was sustained by this court. Re Rahrer (Wilkerson v. Rahrer) 140 U. S. 545, 35 L. ed. 572, 11 Sup. Ct. Rep. 865.

In the aspect in which the game law of New York is now before this court we think it was a valid exertion of the police power, independent of any authorization thereof by the Lacey act, and we shall therefore not stop to examine the provisions of that act. For the reasons stated, we think the legislature, in the particulars in which the statute is here complained of, did not exceed the police power of the state, nor run counter to the protection afforded the citizens of the state by the Constitution of the United States.

Judgment affirmed.

(211 U. S. 78)

Statement by Mr. Justice Moody: 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 statute of the state (P. L. 1899, p. 450, at 461), which is as follows:

"Every director, officer, agent, or clerk of any trust company who 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 sub

ALBERT C. TWINING and David C. Cor- scribes to or makes any false report, shall

nell, Plffs. in Err.,

V.

STATE OF NEW JERSEY.

CONSTITUTIONAL LAW ( 206*) - PRIVI-
LEGES AND IMMUNITIES SELF-INCRIM-

INATION.

1. Exemption from self-incrimination, though secured as against Federal action by U. S. Const., 5th Amend., is not one of the fundamental rights of national citizenship, so as to be included among the privileges and immunities of citizens of the United States which the states are forbidden by the 14th Amendment to abridge.

[Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 206.*

For other definitions, see Words and Phrases, vol. 6, pp. 5599-5606.]

be guilty of a high misdemeanor and punished accordingly."

*

The defendants were found guilty on March 1, 1904, by the verdict of a jury, and judgment upon the verdict, that the defendants be imprisoned for six and four years, respectively, was affirmed successive-a ly 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

CONSTITUTIONAL LAW (§ 255*)-DUE PRO-company, and found there Twining and CorCESS OF LAW-SELF-INCRIMINATION.

2. Exemption from self-incrimination is not safeguarded as against state action by the provision of U. S. Const., 14th Amend., that no state shall deprive any person of life, liberty, or property without due process

of law.

[Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 255.*]

[No. 10.]

nell, 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:

Argued March 19, 20, 1908. Decided No- Monmouth Trust & Safe Deposit Company,

IN

vember 9, 1908.

N ERROR to the Court of Errors and Appeals of the State of New Jersey to review a judgment which affirmed a judgment of the Supreme Court of that state, affirming a conviction in the Court of Quarter Sessions of the County of Monmouth of having knowingly exhibited a false paper to a bank examiner, with intent to deceive. Affirmed.

See same case below, 73 N. J. L. 683, 64 Atl. 1073, 1135.

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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 directGeorge F. Kroehl, S. A. Patterson, G. ors: 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 mo

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tion duly seconded, were unanimously ap | cause these men deny that they exhibited proved.

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 defend ants to the examiner. There was evidence on the part of the prosecution tending to prove both these propositions. The defendants called no witnesses and did not testify themselves, although the law of New Jersey gave them the right to do so if they chose. In his charge to the jury the presiding judge said:

"Now, gentlemen, was this paper false? In the first place,*the paper charged in the indictment certifies in effect that a special meeting of the board of directors of this company was held at the office of the company on Monday, February 9, 1903. There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell. "Among other things appears a resolution of this company to buy 381 shares of the stock of the First National Bank at $44,875, which was adopted.

"Now, was that meeting held or not? "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.

the paper, and if one of these men exhibited the paper and the other did not, I do not see how you could say that the person who claims he did not exhibit the paper would be under any obligation at all to go upon the stand. Neither is under any obligation." It is simply a right they have to go upon the stand, and, consequently the fact that they do not go upon the stand to contradict this statement in the minutes, they both denying, through their counsel and through their plea, that they exhibited the paper, I do not see that that can be taken as at all prejudicial to either of them. They simply have the right to go upon the stand, and they have not availed themselves of it, and it may be that there is no necessity for them to go there. I leave that entirely to you."

Further, in that part of the charge relating to the exhibition of the paper to the examiner, the judge said:

"Now, gentlemen, if you believe that 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 signifi cance. You may say so, because the circumstances may be such that there should be no inference drawn of guilt or anything* of that kind from the fact that he did not go upon the stand. Because a man does not go upon the stand you are not necessarily justified in drawing an inference of But you have a right to consider

"Now, of course, in this action, I do not see how that can have much weight, be-guilt.

the fact that he does not go upon the stand | thority to go further and determine whether 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. Nevius, and Nelson B. Gaskill for defend ant 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 au

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the state court has erred in the interpreta tion 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 Ameri can 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 em bodied 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 Caro lina, 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 prec tised 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 vary. ing 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 exist ing 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 obvi ous 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

as

to an extent not yet fully ascertained, or stock yards and slaughterhouses. The act rather, to speak more accurately, limited provided that others might use these facili those powers and restrained their exercise. ties for a prescribed price, forbade the landThere is no doubt of the duty of this court ing for slaughter or the slaughtering of anito enforce the limitations and restraints mals elsewhere or otherwise, and established whenever they exist, and there has been no a system of inspection. Those persons who hesitation in the performance of the duty. were driven out of independent business by But, whenever a new limitation or restric- this law denied its validity in suits which tion is declared, it is a matter of grave im- came to this court by writs of error to the port, since, to that extent, it diminishes supreme court of the state, which had susthe authority of the state, so necessary to tained the act. It was argued, inter alia, the perpetuity of our dual form of govern- that the statute abridged the privileges and ment, and changes its relation to its people immunities of the plaintiffs in error and to the Union. The question in the case citizens of the United States, and the parat bar has been twice before us, and been ticular privilege which was alleged to be violeft undecided, as the cases were disposed lated was that of pursuing freely their choof on other grounds. Adams v. New York, sen trade, business, or calling. The majority 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. of the court were not content with express372; Consolidated Rendering Co. v. Vermont, ing the opinion that the act did not in fact 207 U. S. 541, 52 L. ed. 327, 28 Sup. Ct. deprive the plaintiffs in error of their right Rep. 178. The defendants contend, in the to exercise their trade (a proposition vigorfirst place, that the exemption from self- ously disputed by four dissenting justices), incrimination is one of the privileges and which would have disposed of the case, but immunities of citizens of the United States preferred to rest the decision upon the broad which the 14th Amendment forbids the ground that the right asserted in the case states to abridge. It is not argued that the was not a privilege or immunity belonging defendants are protected by that part of to persons by virtue of their national citithe 5th Amendment which provides that zenship, but, if existing at all, belonging to "no person shall be compelled in them only by virtue of their state citizenany criminal case to be a witness against ship. The 14th Amendment, it is observed himself," for it is recognized by counsel that, by Mr. Justice Miller, delivering the opinion by a long line of decisions, the first ten of the court, removed the doubt whether Amendments are not operative on the states. there could be a citizenship of the United Barron v. Baltimore, 7 Pet. 243, 8 L. ed. States independent of citizenship of the 672; Spies v. Illinois, 123 U. S. 131, 31 L. ed. state, by recognizing or creating and defin80, 8 Sup. Ct. Rep. 21, 22; Brown v. New ing the former. "It is quite clear, then," Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. he proceeds to say (p. 74), "that there is a Ct. Rep. 77; Barrington v. Missouri, 205 citizenship of the United States and a citi U. S. 483, 51 L. ed. 890, 27 Sup. Ct. Rep. zenship of a state, which are distinct from 582. But it is argued that this privilege each other and which depend upon different is one of the fundamental rights of national characteristics or circumstances in the incitizenship, placed under national protection dividual." The description of the privileges by the 14th Amendment, and it is specifical- and immunities of state citizenship, given ly argued that the "privileges and immuni- by Mr. Justice Washington in Corfield v. ties of citizens of the United States," pro- Coryell, 4 Wash. C. C. 371, Fed. Cas. No. tected against state action by that Amend- 3,230, is then quoted, approved, and said to ment, include those fundamental personal include "those rights which are fundamenrights which were protected against national tal," to embrace "nearly every civil right for action by the first eight Amendments; that the establishment and protection of which this was the intention of the framers of the organized government is instituted," and "to 14th Amendment, and that this part of it be the class of rights which the state governwould otherwise have little or no meaning ments were created to establish and secure." and effect. These arguments are not new This part of the opinion then concludes to this court and the answer to them is with the holding that the rights relied upfound in its decisions. The meaning of the on in the case are those which belong to the phrase "privileges and immunities of citi- citizens of states, as such, and are under zens of the United States," as used in the the sole care and protection of the state 14th Amendment, came under early consid-governments. The conclusion is preceded eration in the Slaughter-House Cases, 16 by the important declaration that the civil Wall. 36, 21 L. ed. 394. A statute of Louisi- rights theretofore appertaining to citizenana created a corporation and conferred up-ship of the states and under the protection of on it the exclusive privilege, for a term of the states were not given the security of years, of establishing and maintaining with- national protection by this clause of the in a fixed division of the city of New Orleans | 14th Amendment. The exact scope and the 29 S. C.-2.

momentous consequence of this decision are | Slaughter-House Cases has determined the brought into clear light by the dissenting question, that the civil rights sometimes opinions. The view of Mr. Justice Field, described as fundamental and inalienable, concurred in by Chief Justice Chase and Jus- which, before the War Amendments, were tices Swayne and Bradley, was that the enjoyed by state citizenship and protected fundamental rights of citizenship, which, by state government, were left untouched by by the opinion of the court, were held to be this clause of the 14th Amendment. Critirights of state citizenship, protected only by cism of this case has never entirely ceased, the state government, became, as the result nor has it ever received universal assent by of the 14th Amendment, rights of national members of this court. Undoubtedly, it gave citizenship, protected by the national Con- much less effect to the 14th Amendment than stitution. Said Mr. Justice Field (p. 95): some of the public men active in framing it "The fundamental rights, privileges, and intended, and disappointed many others. On immunities which belong to him as a free the other hand, if the views of the minority man and a free citizen, now belong to him as had prevailed, it is easy to see how far the a citizen of the United States, and are not authority and independence of the states dependent upon his citizenship of any state. would have been diminished, by subjecting The Amendment does not attempt to all their legislative and judicial acts to confer any new privileges or immunities correction by the legislative and review by upon citizens, or to enumerate or define the judicial branch of the national governthose already existing. It assumes that ment. But we need not now inquire into the there are such privileges and immunities, merits of the original dispute. This part, at which belong of right to citizens as such, least, of the Slaughter-House Cases, has been and ordains that they shall not be abridged steadily adhered to by this court, so that it by state legislation. If this inhibition has was said of it, in a case where the same no reference to privileges and immunities of clause of the Amendment was under conthis character, but only refers, as held by sideration (Maxwell v. Dow, 176 U. S. 581, the majority of the court in their opinion, 591, 44 L. ed. 597, 601, 20 Sup. Ct. Rep. 448, to such privileges and immunities as were, 494): "The opinion upon the matters actubefore its adoption, specially designated in ally involved and maintained by the judg the Constitution, or necessarily implied as ment in the case has never been doubted or belonging to citizens of the United States, it overruled by any judgment of this court." was a vain and idle enactment, which ac- The distinction between national and state complished nothing, and most unnecessarily citizenship and their respective privileges excited Congress and the people on its pas- there drawn has come to be firmly estabsage. With privileges and immunities thus lished. And so it was held that the right designated or implied no state could ever of peaceable assembly for a lawful purpose have interfered by its laws, and no new con- (it not appearing that the purpose had any stitutional provision was required to inhibit reference to the national government) was such interference. The supremacy of the not a right secured by the Constitution Constitution and the laws of the United of the United States, although it was said States always controlled any state legisla- that the right existed before the adoption tion of that character. But, if the Amend- of the Constitution of the United States, ment refers to the natural and inalienable and that "it is and always has been one of rights which belong to all citizens, the in- the attributes of citizenship under a free hibition has a profound significance and government." United States v. Cruikshank, consequence." 92 U. S. 542, 551, 23 L. ed. 588, 591. And In accordance with these principles it is see Hodges v. United States, 203 U. S. 1, said by the learned justice that the privi- 51 L. ed. 65, 27 Sup. Ct. Rep. 6. In each leges and immunities of state citizenship, case the Slaughter-House Cases were cited described by Mr. Justice Washington, and by the court, and in the latter case the held by the majority of the court still to rights described by Mr. Justice Washington pertain exclusively to state citizenship, and were again treated as rights of state citito be protected solely by the state govern-zenship, under state protection. If, then, it ment, have been guaranteed by the 14th be assumed, without deciding the point, that 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

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

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