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, 194 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 Amend ment. 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.

citizens of the United States, on the other | 617), and was undoubtedly that entertained 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 L. ed. 519, 524, 10 Sup. Ct. Rep. 930; Duncan v. Missouri, 152 U. S. 377, 382, 38 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 Yarbrough, 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 selfincrimination 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 L. ed. 450, 466, 12 Sup. Ct. Rep. 693; Mr. Justice Harlan in the same case, 370, and in Maxwell v. Dow, supra, 606,

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

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 L. ed. 232, 236, 4 Sup. Ct. Rep. 111, 117, 292.

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 Amendments, but because they are of such a nature that they are included in the conception of due process of law. Few phrases of the law are so elusive of exact apprehension as this. Doubtless the difficulties of ascertaining its connotation have been increased in American jurisprudence, where it has been embodied in constitutions and put to new uses as a limit on legislative power. This court has Second. It does not follow, however, that always declined to give a comprehensive a procedure settled in English law at the definition of it, and has preferred that its time of the emigration, and brought to full meaning should be gradually ascer- this country and practised by our antained by the process of inclusion and ex-cestors, is an essential element of due process clusion in the course of the decisions of of law. If that were so, the procedure of cases as they arise. There are certain gen- the first half of the seventeenth century eral principles, well settled, however, which would be fastened upon the American ju narrow the field of discussion, and may serve risprudence like a straight jacket, only to as helps to correct conclusions. These prin- be unloosed by constitutional amendment. ciples grow out of the proposition univer- That, said Mr. Justice Matthews, in the sally accepted by American courts on the same case, p. 529, "would be to deny every authority of Coke, that the words "due quality of the law but its age, and to renprocess of law" are equivalent in meaning der it incapable of progress or improvement." to the words "law of the land," contained Holden v. Hardy, 169 U. S. 366, 388, 42 L. in that chapter of Magna Charta which pro- ed. 780, 789, 18 Sup. Ct. Rep. 383; Brown vides that "no freeman shall be taken, or v. New Jersey, 175 U. S. 172, 175, 44 imprisoned, or disseised, or outlawed, or ex- L. ed. 119, 120, 20 Sup. Ct. Rep. 77. iled, 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 of it. The words "due process of

sions:

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 expres

law" "were intended to secure the individuFirst. What is due process of law may al from the arbitrary exercise of the powers be ascertained by an examination of those of government, unrestrained by the estab settled usages and modes of proceedings ex- lished principles of private rights and disisting in the common and statute law of tributive justice." Bank of Columbia v. England before the emigration of our an- Okely, 4 Wheat. 235, 244, 4 L. ed. 559, 561 cestors, and shown not to have been un- (approved in Hurtado v. California, 110 U. suited to their civil and political condition S. 516, 527, 28 L. ed. 232, 235, 4 Sup. Ct. by having been acted on by them after the Rep. 111, 292; Leeper v. Texas, 139 U. S. settlement of this country. This test was 462, 468, 35 L. ed. 225, 227, 11 Sup. Ct. Rep. adopted by the court, speaking through Mr. 577; Scott v. McNeal, 154 U. S. 34, 45, 38 Justice Curtis, in Den ex dem. Murray v. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108). Hoboken Land & Improv. Co. 18 How. 272, "This court has never attempted to define 280, 15 L. ed. 372, 376 (approved in Halling- (with precision the words 'due process of er v. Davis, 146 U. S. 314, 320, 36 L. ed. 986, 989, 13 Sup. Ct. Rep. 105; Holden v. Hardy, 169 U. S. 366, 390, 42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383; but see Lowe v. Kansas, 163 U. S. 81, 85, 41 L. ed. 78, 79, 16 Sup. Ct. Rep. 1031). Of course, the part

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 L. ed. 780, 790, 18 Sup. Ct.

Rep. 383, 387. "The same words refer to | questions, the prisoner either admitting or that law of the land in each state, which denying or explaining what was alleged derives its authority from the inherent and against him. The result was that, during reserved powers of the state, exerted within the period in question, the examination of the limits of those fundamental principles the prisoner, which is at present scupulousof liberty and justice which lie at the base ly and I think even pedantically avoided, of all our civil and political institutions." was the very essence of the trial, and his Re Kemmler, 136 U. S. 436, 448, 34 L. ed. answers regulated the production of the evi519, 524, 10 Sup. Ct. Rep. 930, 934. "The dence; the whole trial, in fact, was a long limit of the full control which the state has argument between the prisoner and counsel in the proceedings of its courts, both in civil for the Crown, in which they questioned each and criminal cases, is subject only to the other and grappled with each other's arguqualification that such procedure must not ments with the utmost eagerness and closework a denial of fundamental rights or ness of reasoning." Stephen, History of conflict with specific and applicable pro- the Crim. Law, 325. visions of the Federal Constitution." West v. Louisiana, 194 U. S. 258, 263, 48 L. ed. 965, 969, 24 Sup. Ct. Rep. 650, 652.

This description of the questioning of the accused and the meeting of contending arguments finds curious confirmation in the The question under consideration may first report of the trial, in 1637, of Ann Hutchinbe tested by the application of these settled son (which resulted in banishment) for holddoctrines of this court. If the statement of ing and encouraging certain theological Mr. Justice Curtis, as elucidated in Hurtado views which were not approved by the mav. California, is to be taken literally, that jority of the early Massachusetts rulers. alone might almost be decisive. For noth-1 Hart's American History Told by Coning is more certain, in point of historical temporaries, 382. The trial was presided 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.

over and the examination very largely conducted by Governor Winthrop, who had been, for some years before his emigration, an active lawyer and admitted to the Inner Temple. An examination of the report of this trial will show that he was not aware of any privilege against self-incrimination or conscious of any duty to respect it. Stephen says of the trials between 1640 and 1660 (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 question

Sir James Fitzjames Stephen, in his stud-ing the prisoner died out." But committing ies of the reports of English trials for crime, has thrown much light on the existence of the practice of questioning persons accused of crime, and its gradual decay. He considers, first, a group of trials which occurred between 1554 and 1637. Speaking of the trial before the jury, he says:

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 "The prisoner, in nearly every instance, now there seems to be a very well-recog asked, as a favor, that he might not be over-nized and important exception in English powered by the eloquence of counsel de- law to the rule that no person can be comnouncing him in a set speech, but, in consid-pelled to furnish evidence against himself. eration of the weakness of his memory, A practice in bankruptcy has existed from 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

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

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 has been deemed ant

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.

bankrupt to submit to an examination touch- | would not have received some attention from ing 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 gener-equivalent expression, but, on the contrary, al 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 secret But, without repudiating or questioning grant, conveyance, or concealment of his the test proposed by Mr. Justice Curtis for lands." The act of 12 & 13 Vict. chap. 106, the court, or rejecting the inference drawn § 117 (1849), contained the same provision. from English law, we prefer to rest our Construing these acts, it was held that the decision on broader grounds, and inquire bankrupt must answer, though his answer whether the exemption from self-incriminamight furnish evidence of his crime, and tion is of such a nature that it must be even if an indictment were pending against included in the conception of due process. him; and that the evidence thus compelled Is it a fundamental principle of liberty and was admissible on his trial for crime. Re justice which inheres in the very idea of Heath, 2 Deacon & C. 214; Re Smith, 2 Dea- free government and is the inalienable right con & C. 230, 235; Reg. v. Scott, Dears. of a citizen of such a government? If it is, & B. C. C. 47; Reg. v. Cross, 7 Cox, C. C. and if it is of a nature that pertains to pro226; Queen v. Widdop, L. R. 2 C. C. 3. The cess of law, this court has declared it to be act of 46 & 47 Vict. chap. 52, § 17 (1883), essential to due process of law. In apwhich we understand to be (with some proaching such a question it must not be amendment, not material here) the present forgotten that in a free representative govlaw, passed after the decisions cited, express- ernment nothing is more fundamental than ly provided that the examination shall be the right of the people, through their aptaken in writing and signed by the debtor, pointed servants, to govern themselves in "and may thereafter be used in evidence accordance with their own will, except so against him." It has since been held that far as they have restrained themselves by other evidence of his testimony than that constitutional limits specifically established, written and signed by him may be used. and that, in our peculiar dual form of govQueen v. Erdheim [1896] 2 Q. B. 260, and ernment, nothing is more fundamental than see King v. Pike [1902] 1 K. B. 552.† It the full power of the state to order its own is to be observed that not until 1883 did affairs and govern its own people, except so Parliament, which has an unlimited legis- far as the Federal Constitution, expressly or lative power, expressly provide that the evi- | by fair implication, has withdrawn that dence compelled from the bankrupt could power. The power of the people of the be used in proof of an indictment against states to make and alter their laws at pleashim. The rule had been previously firmly ure is the greatest security for liberty and established by judicial decisions upon stat- justice, this court has said in Hurtado v. utes simply authorizing a compulsory ex- California, 110 U. S. 516, 527, 28 L. ed. amination. If the rule had been thought to 232, 235, 4 Sup. Ct. Rep. 111, 292. We be in conflict with "the law of the land" are not invested with the jurisdiction to pass of Magna Charta, "a sacred text, the near-upon the expediency, wisdom, or justice of est approach to an irrepealable ‘fundamental the laws of the states as declared by their statute' that England has ever had" (1 Pollock & M. History of English Law, 152), it is inconceivable that such a consideration

+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.

courts, but only to determine their conformity with the Federal Constitution and the paramount laws enacted pursuant to it. Untion we must take care that we do not im-* der the guise of interpreting the Constituport into the discussion our own personal views of what would be wise, just, and fitting rules of government to be adopted by

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.

Act Congress (1765) nor the declaration of rights of the Continental Congress (1774) nor the ordinance for the govern ment of the Northwestern territory included the privilege in their enumeration of fundamental rights.

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 fundamen- We pass by the meager records of the tal rights which are expressed in that pro- early colonial time, so far as they have vision; not the rights fundamental in citi- come to our attention, as affording light zenship, state or national, for they are se- too uncertain for guidance. See Wigmore, cured otherwise; but the rights fundamental Ev. § 2250, note 108; 2 Hening's Stat. at in due process, and therefore an essential L. 422 (1676) Va.; 1 Winthrop's History part of it. We have to consider whether the of New England, 47, provincial act, 4 Wm. right is so fundamental in due process that & Mary, Ancient Charters, Massachusetts, a refusal of the right is a denial of due 214. Though it is worthy of note that neiprocess. One aid to the solution of the ques-ther the declaration of rights of the Stamp tion 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 But the history of the incorporation of was so fundamental that there could be no the privilege in an amendment to the nadue process without it? It has already ap- tional Constitution is full of significance in peared that, prior to the formation of the this connection. Five states-Delaware, American Constitutions, in which the ex- Pennsylvania, New Jersey, Georgia, and emption from compulsory self-incrimination Connecticut-ratified the Constitution withwas specifically secured, separately, inde-out proposing amendments. Massachusetts pendently, 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 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,

then followed with a ratification, accompanied by a recommendation of nine amendments, none of which referred to the privilege; Maryland with a ratification without proposing amendments; South Carolina with a ratification accompanied by a recommendation of four amendments, none of which referred to the privilege, and New Hampshire with a ratification accompanied by a recommendation of twelve amendments, none of which referred to the privilege. The nine states requisite to put the Constitution in operation ratified it without a suggestion of incorporating this privilege. Virginia was the tenth state to ratify, proposing, by separate resolution, an elaborate bill of rights under twenty heads, and, in addition, twenty amendments to the body of the Constitution. Among the rights enumerated as "essential and inalienable" is that no man "can be compelled to give evidence against himself," and "no freeman ought to be deprived of his life, liberty, or property but by the law of the land." New York ratified with a proposal of numer. ous 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