66 citizens of the United States, on the other | 617), and was undoubtedly that entertained hand, are only such as arise out of the na- by some of those who framed the Amendture and essential character of the national ment. It is, however, not profitable to examgovernment, or are specifically granted or ine the weighty arguments in its favor, for secured to all citizens or persons by the the question is no longer open in this court. Constitution of the United States. Slaugh- The right of trial by jury in civil cases, ter-House Cases, supra, p. 79; Re Kemmler, guaranteed by the 7th Amendment (Walker 136 U. S. 436, 448, 34 L. ed. 519, 524, 10 v. Sauvinet, 92 U. S. 90, 23 L. ed. 678), and Sup. Ct. Rep. 930; Duncan v. Missouri, 152 the right to bear arms, guaranteed by the U. S. 377, 382, 38 L. ed. 485, 487, 14 2d Amendment (Presser v. Illinois, 116 Sup. Ct. Rep. 570. Thus, among the rights U. S. 252, 29 L. ed. 615, 6 Sup. Ct. Rep. and privileges of national citizenship recog. 580), have been distinctly held not to be nized by this court are the right to pass privileges and immunities of citizens of the freely from state to state (Crandall v. Ne- United States, guaranteed by the 14th vada, 6 Wall. 35, 18 L. ed. 745); the right Amendment against abridgment by the to petition Congress for a redress of griev- states, and in effect the same decision was ances (United States v. Cruikshank, supra); made in respect of the guaranty against the right to vote for national officers (Ex prosecution, except by indictment of a grand parte Yarbrough, 110 U. S. 651, 28 L. ed. jury, contained in the 5th Amendment 274, 4 Sup. Ct. Rep. 152; Wiley v. Sinkler, (Hurtado v. California, 110 U. S. 516, 28 L.g 179 U. S. 58, 45 L. ed. 84, 21 Sup. Ct. Rep. ed. 232, 4 Sup. Ct. Rep. 111, 292), and in 17); the right to enter the public lands respect of the right to be confronted with (United States v. Waddell, 112 U. S. 76, witnesses, contained in the 6th Amendment 28 L. ed. 673, 5 Sup. Ct. Rep. 35); the right (West v. Louisiana, 194 U. S. 258, 48 L. ed. to be protected against violence while in the 965, 24 Sup. Ct. Rep. 650). In Maxwell v. lawful custody of a United States marshal Dow, supra, where the plaintiff in error had (Logan v. United States, 144 U. S. 263, 36 been convicted in a state court of a felony L. ed. 429, 12 Sup. Ct. Rep. 617); and the upon an information, and by a jury of eight right to inform the United States authorities persons, it was held that the indictment, of violation of its laws (Re Quarles, 158 made indispensable by the 5th Amendment, U. S. 532, 39 L. ed. 1080, 15 Sup. Ct. Rep. and the trial by jury, guaranteed by the 959). Most of these cases were indictments 6th Amendment, were not privileges and imagainst individuals for conspiracies to de-munities of citizens of the United States, prive persons of rights secured by the Con- as those words were used in the 14th Amendstitution of the United States, and met with ment. The discussion in that case ought a different fate in this court from the indict- not to be repeated. All the arguments for ments in United States v. Cruikshank and the other view were considered and answered, Hodges v. United States, because the rights the authorities were examined and analyzed, in the latter cases were rights of state, and and the decision rested upon the ground not of national, citizenship. But assuming that this clause of the 14th Amendment did it to be true that the exemption from self- not forbid the states to abridge the personal incrimination is not, as a fundamental right rights enumerated in the first eight Amendof national citizenship, included in the privi- ments, because those rights were not within leges and immunities of citizens of the Unit- the meaning of the clause "privileges and ed States, counsel insist that, as a right immunities of citizens of the United States." specifically granted or secured by the Feder- If it be possible to render the principle which al 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, 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 | of the Constitution then *before the court' be a denial of due process of law. Chicago, was the 5th Amendment. If any different B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 meaning of the same words, as they are used L. ed. 979, 17 Sup. Ct. Rep. 581. If this is in the 14th Amendment, can be conceived, so, it is not because those rights are enumer- none has yet appeared in judicial decision. ated in the first eight Amendments, but be- "A process of law," said Mr. Justice Matcause they are of such a nature that they thews, commenting on this statement of Mr. are included in the conception of due process Justice Curtis, "which is not otherwise forof law. Few phrases of the law are so elu- bidden, must be taken to be due process of sive of exact apprehension as this. Doubtless law, if it can show the sanction of settled the difficulties of ascertaining its connota- usage both in England and in this country." tion have been increased in American juris- Hurtado v. California, 110 U. S. 516, 528, 28 prudence, where it has been embodied in L. ed. 232, 236, 4 Sup. Ct. Rep. 111, 117, constitutions and put to new uses as a 292. 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 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 of it. The words "due process of sions: the first half of the seventeenth century would be fastened upon the American ju risprudence 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 ren der it incapable of progress or improvement." Holden v. Hardy, 169 U. S. 366, 388, 42 L ed. 780, 789, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U. S. 172, 175, 44 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 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. 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 avoided, was the very essence of the trial, and his answers regulated the production of the evidence; the whole trial, in fact, was a long argument between the prisoner and counsel 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 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 | for the Crown, in which they questioned each 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 L. ed. 965, 969, 24 Sup. Ct. Rep. 650, 652. other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning." Stephen, History of the Crim. Law, 325. 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 con- 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-recogasked, 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 *105 bankrupt to submit to an examination touch- would not have received some attention from ing his estate and dealings. The provision counsel and judges. We think it is maniwas continued in the subsequent acts, and in | fest, from this review of the origin, growth, 1820, in Ex parte Cossens, Buck, Bankr. Cas. extent, and limits of the exemption from 531, 540, Lord Eldon, in the course of a dis- compulsory self-incrimination in the English cussion of the right to examine a bankrupt, law, that it is not regarded as a part of the held that he could be compelled to disclose law of the land of Magna Charta or the due his violations of law in respect of his trade process of law, which has been deemed an and estate, and, while recognizing the gener- equivalent expression, but, on the contrary, al principle of English law, that no one is regarded as separate from and independcould be compelled to incriminate himself, ent of due process. It came into existence said: "I have always understood the propo- not as an essential part of due process, but sition to admit of a qualification with re- as a wise and beneficent rule of evidence spect to the jurisdiction in bankruptcy." developed in the course of judicial decision. The act of 6 Geo. IV., chap. 16, § 36 (1825), This is a potent argument when it is reauthorized the compulsory examination of membered that the phrase was borrowed the bankrupt "touching all matters relat- from English law, and that to that law we ing either to his trade, dealings, or estate, must look at least for its primary meaning. or which may tend to disclose any secret grant, conveyance, or concealment of his lands." The act of 12 & 13 Vict. chap. 106, § 117 (1849), contained the same provision. Construing these acts, it was held that the bankrupt must answer, though his answer might furnish evidence of his crime, and even if an indictment were pending against him; and that the evidence thus compelled was admissible on his trial for crime. Re Heath, 2 Deacon & C. 214; Re Smith, 2 Deacon & C. 230, 235; Reg. v. Scott, Dears. & B. C. C. 47; Reg. v. Cross, 7 Cox, C. C. 226; Queen v. Widdop, L. R. 2 C. C. 3. The act of 46 & 47 Vict. chap. 52, § 17 (1883), which we understand to be (with some amendment, not material here) the present law, passed after the decisions cited, expressly provided that the examination shall be taken in writing and signed by the debtor, "and may thereafter be used in evidence against him." It has since been held that other evidence of his testimony than that written and signed by him may be used. Queen v. Erdheim [1896] 2 Q. B. 260, and see King v. Pike [1902] 1 K. B. 552.† It is to be observed that not until 1883 did Parliament, which has an unlimited legislative power, expressly provide that the evidence compelled from the bankrupt could be used in proof of an indictment against him. The rule had been previously firmly established by judicial decisions upon statutes simply authorizing a compulsory examination. If the rule had been thought to be in conflict with "the law of the land" of Magna Charta, "a sacred text, the nearest approach to an irrepealable 'fundamental statute' that England has ever had" (1 Pollock & M. History of English Law, 152), it is inconceivable that such a consideration +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. 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 ap pointed 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 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. Untion we must take care that we do not imder 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 a free people, and confound them with con- I have dealt with the exemption as they would stitutional limitations. The question before have dealt with any other rule of evidence, us is the meaning of a constitutional pro-apparently without a thought that the quesvision which forbids the states to deny to tion was affected by the law of the land of any person due process of law. In the de- Magna Charta, or the due process of law cision of this question we have the authority which is its equivalent. 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 Act Congress (1765) nor the declaration during the time when the meaning of due of rights of the Continental Congress process was in a formative state, and before (1774) nor the ordinance for the governit was incorporated in American constitu- ment of the Northwestern territory includtional law. Did those who then were for-ed the privilege in their enumeration of mulating and insisting upon the rights of fundamental rights. 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 require- then followed with a ratification, accomment of due process, the doctrine was formed, panied by a recommendation of nine amend as other doctrines of the law of evidence ments, none of which referred to the privihave been formed, by the course of decision lege; Maryland with a ratification without in the courts, covering a long period of time. | proposing amendments; South Carolina Searching further, we find nothing to show with a ratification accompanied by a recomthat it was then thought to be other than mendation of four amendments, none of a just and useful principle of law. None of which referred to the privilege, and New the great instruments in which we are ac- Hampshire with a ratification accompanied customed to look for the declaration of the by a recommendation of twelve amendments, fundamental rights made reference to it. none of which referred to the privilege. The privilege was not dreamed of for hun- The nine states requisite to put the Condreds of years after Magna Charta (1215), stitution in operation ratified it without and could not have been implied in the a suggestion of incorporating this privilege. "law of the land" there secured. The Pe- Virginia was the tenth state to ratify, protition of Right (1629), though it insists up- posing, by separate resolution, an elaborate on the right secured by Magna Charta to be bill of rights under twenty heads, and, in condemned only by the law of the land, and addition, twenty amendments to the body sets forth, by way of grievance, divers vio- of the Constitution. Among the rights lations of it, is silent upon the practice of enumerated as "essential and inalienable" compulsory self-incrimination, though it is that no man "can be compelled to give was then a matter of common occurrence evidence against himself," and "no freeman in all the courts of the realm. The Bill ought to be deprived of his life, liberty, of Rights of the first year of the reign or property but by the law of the land." of William and Mary (1689) is likewise New York ratified with a proposal of numer silent, though the practice of questioning ous amendments and a declaration of rights the prisoner at his trial had not then ceased. which the convention declared could not be The negative argument which arises out violated and were consistent with the Conof the omission of all reference to any stitution. One of these rights was that "no exemption from compulsory self-incrimina-person ought to be taken, imprisoned or detion in these three great declarations of prived of his freehold, or be exiled or deEnglish liberty (though it is not supposed prived of his privileges, franchises, life, to amount to a demonstration) is supported by the positive argument that the English courts and Parliaments, as we have seen, liberty, or property but by due process of law;" and another was that, "in all criminal prosecutions, the accused . . should 801. |