not be compelled to give evidence against | process of law, already established by them, himself." North Carolina and Rhode Island were the last to ratify, each proposing a large number of amendments, including the provision that no man "can be compelled to give evidence against himself;" and North Carolina, that "no freeman ought deprived of his life, liberty, or property but by the law of the land;" and Rhode Island, that "no freeman ought to be deprived of his life, liberty, or property but by the trial by jury, or by the law of the land." to be Thus it appears that four only of the thirteen original states insisted upon incorporating the privilege in the Constitution, and they separately and simultaneously with the requirement of due process of law, and that three states proposing amendments were silent upon this subject. It is worthy of note that two of these four states did not incorporate the privilege in their own Constitutions, where it would have had a much wider field of usefulness, until many years after. New York in 1821 and Rhode Island in 1842 (its first Constitution). This survey does not tend to show that it was then in this country the universal or even general belief that the privilege ranked among the fundamental and inalienable rights of mankind; and what is more important here, it affirmatively shows that the privilege was not conceived to be inherent in due process of law, but, on the other hand, a right separate, independent, and outside of due process. Congress, in submitting the Amendments to the several states, treated the two rights as exclusive of each other. Such also has been the view of the states in framing their own Constitutions, for in every case, except in New Jersey and Iowa, where the due process clause or its equivalent is included, it has been thought necessary to include separately the privilege clause. Nor have we been referred to any decision of a state court save one (State v. Height, 117 Iowa, 650, 59 L.R.A. 437, 94 Am. St. Rep. 323, 91 N. W. 935), where the exemption has been held to be required by due process of law. The inference is irresistible that it has been the opinion of constitution makers that the privilege, if fundamental in any sense, is not fundamental in due process of law, nor an essential part of it. We believe that this opinion is proved to have been correct by every historical test by which the meaning of the phrase can be tried. The decisions of this court, though they are silent on the precise question before us, ought to be searched to discover if they present any analogies which are helpful in its decision. The essential elements of due are singularly few, though of wide application and deep significance. We are not here concerned with the effect of due process in restraining substantive laws, as, for example, that which forbids the taking of private property for public use without compensation. We need notice now only those cases which deal with the principles which must be observed in the trial of criminal and civil causes. Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction (Pennoyer v. Neff, 95 U. S. 714, 733, 24 L. ed. 565, 572; Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Old Wayne Mut. Life Asso* v. McDonough, 204 U. S. 8, 51 L. ed. 345, 27 Sup. Ct. Rep. 236), and that there shall be notice and opportunity for hearing given the parties. (Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841; Roller v. Holly, 176 U. S. 398, 44 L. ed. 520, 20 Sup. Ct. Rep. 410; and see Londoner v. Denver, 210 U. S. 373, 52 L. ed. 1103, 28 Sup. Ct. Rep. 708). Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has, up to this time, sustained all state laws, statutory or judicially declared, regulating procedure, evidence, and methods of trial, and held them to be consistent with due process of law. Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Re Converse, 137 U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191; Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224; Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Hallinger v. Davis, 146 U. S. 314, 36 L. ed. 986, 13 Sup. Ct. Rep. 105; McNulty v. California, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959; McKane v. Durston, 153 U. S. 684, 38 L. ed. 867, 14 Sup. Ct. Rep. 913; Iowa C. R. Co. v. Iowa, 160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344; Lowe v. Kansas, 163 U. S. 81, 41 L. ed. 78, 16 Sup. Ct. Rep. 1031; Allen v. Georgia, 166 U. S. 138, 41 L. ed. 949, 17 Sup. Ct. Rep. 525; Hodgson v. Vermont, 168 U. S. 262, 42 L. ed. 461, 18 Sup. Ct. Rep. 80; Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. 382, 20 Sup. Ct. Rep. 287; Maxwell v. Dow, 176 U. S. 581, 44 L. ed. 597, 20 Sup. Ct. Rep. 448, 494; Simon v. Craft, 182 U. S. 427, 45 L. ed. 1165, 21 Sup. Ct. Rep. 836; West v. Louisiana, 194 U. S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep. 650; Marvin v. Trout, 199 U. S. 212, 50 L. ed. 157, 26 Sup. Ct. Rep. 31; Rogers v. Peck, 199 U. S. 425, 50 L. ed. 256, 26 Sup. Ct. Rep. 87; Howard v. Kentucky, 200 U. S. 164, 50 L. ed. 421, 26 Sup. Ct. Rep. 189; Rawlins v. Georgia, 201 | emption from compulsory self-incrimination pointed out that the inexorable logic of the reasoning of the court was to allow the states, so far as the Federal Constitution was concerned, to compel any person to be a witness against himself. In Missouri v. Lewis (Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989, Mr. Justice Bradley, speaking *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 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. is included in the conception of due process of law. Indeed, the reasoning for including indictment by a grand ury and trial Among the most notable of these deci- by a petit jury in that conception, which sions are those sustaining the denial of has been rejected by this court in Hurtado jury trial both in civil and criminal cases, v. California and Maxwell v. Dow, was the substitution of informations for in-historically and in principle much stronger. dictments by a grand jury, the enactment Clearly appreciating this, Mr. Justice Harthat the possession of policy slips raises alan, in his dissent in each of these cases, presumption of illegality, and the admission of the deposition of an absent witness in a criminal case. The cases proceed upon the theory that, given a court of justice which has jurisdiction, and acts, not arbitrarily, but in conformity with a general law, upon evidence, and after inquiry made with notice to the parties affected and opportunity to be heard, then all the requirements of due process, so far as it relates to procedure in court and methods of trial and character and effect of evidence, are complied with. Thus it was said in Iowa C. R. Co. v. Iowa, supra, p. 393: "But it is clear that the 14th Amendment in no way undertakes to control the power of a state to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and accords fair opportunity to be heard before the issues are de- Even if the historical meaning of due cided;" and in Louisville & N. R. Co. v. process of law and the decisions of this Schmidt, 177 U. S. 236, 44 L. ed. 750, court did not exclude the privilege from it, 20 Sup. Ct. Rep. 622: "It is no longer open it would be going far to rate it as an im to contention that the due process clause mutable principle of justice which is the of the 14th Amendment to the Constitution inalienable possession of every citizen of a of the United States does not control mere free government. Salutary as the principle forms of procedure in state courts or regu- may seem to the great majority, it canlate practice therein. All its requirements not be ranked with the right to hearing are complied with, provided in the proceed- before condemnation, the immunity from ings which are claimed not to have been arbitrary power not acting by general laws, due process of law the person condemned and the inviolability of private property. has had sufficient notice, and adequate op- The wisdom of the exemption has never been portunity has been afforded him to defend;" universally assented to since the days of and in Hooker v. Los Angeles, 188 U. S. Bentham, many doubt it to-day, and it is 314, 318, 47 L. ed. 487, 491, 63 L.R.A. 471, best defended not as an unchangeable prin479, 23 Sup. Ct. Rep. 395, 397: "The 14th ciple of universal justice, but as a law Amendment does not control the power of proved by experience to be expedient. See a state to determine the form of procedure Wigmore, Ev. § 2251. It has no place in by which legal rights may be ascertained, the jurisprudence of civilized and free counif the method adopted gives reasonable no- tries outside the domain of the common tice and affords a fair opportunity to be law, and it is nowhere observed among our heard;" and in Rogers v. Peck, supra, p. own people in the search for truth outside 435: "Due process of law guaranteed by the administration of the law. It should, the 14th Amendment does not require the must, and will be rigidly observed where it state to adopt a particular form of pro- is secured by specific constitutional safecedure, so long as it appears that the ac- guards, but there is nothing in it which cused has had sufficient notice of the ac- gives it a sanctity above and before concusation and an adequate opportunity to stitutions themselves. Much might be said defend himself in the prosecution." It is in favor of the view that the privilege was impossible to reconcile the reasoning of guaranteed against state impairment as a these cases and the rule which governed privilege and immunity of national cititheir decision with the theory that an ex-zenship, but, as has been shown, the deci sions of this court have foreclosed that | deny them a right secured by the Constiview. There seems to be no reason what- tution of the United States,-namely, the ever, however, for straining the meaning of right of an accused not to be compelled to due process of law to include this privilege testify against himself. within it, because, perhaps, we may think Upon this point the court, in the opinion it of great value. The states had guarded just delivered, says: "We have assumed, the privilege to the satisfaction of their only for the purpose of discussion, that own people up to the adoption of the 14th what was done in the case at bar was an inAmendment. No reason is perceived why|fringement of the privilege against self-inthey cannot continue to do so. The power crimination." But the court takes care to of their people ought not to be fettered, add immediately: "We do not intend, howtheir sense of responsibility lessened, and ever, to lend any countenance to the truth their capacity for sober and restrained self- of that assumption. The courts of New government weakened, by forced construc- Jersey, in adopting the rule of law which tion of the Federal Constitution. If the is complained of here, have deemed it conpeople of New Jersey are not content with sistent with the privilege itself." 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. We have assumed only for the purpose of discussion that what was done in the case at bar was an infringement of the privilege against self-incrimination. We do not intend, however, to lend any countenance to the truth of that assumption. The courts of New Jersey, in adopting the rule of law which is complained of here, have deemed it consistent with the privilege itself, and not a denial of it. The reasoning by which this view is supported will be found in the cases cited from New Jersey and Maine, and see Queen v. Rhodes [1899] 1 Q. B. 77; Ex parte Kops [1894] A. C. 650. The authorities upon the question are in conflict. We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution. It seems to me that the first inquiry on this writ of error should have been whether, upon the record before us, that which was actually done in the trial court amounted, in law, to a violation of that privilege. If the court was not prepared to hold, upon the record before it, that the privilege of immunity from self-incrimination had been actually violated, then, I submit, it ought not to have gone further and held it to be competent for a state, despite the granting of immunity from self-incrimination by the Federal Constitution, to compel one accused of crime to be a witness against himself. Whether a state is forbidden by the Constitution of the United States to violate the principle of immunity from selfincrimination is a question which it is clearly unnecessary to decide now, unless what was, in fact, done at the trial, was inconsist ent with that immunity. But, although expressly declaring that it will not lend any countenance to the truth of the assumption that the proceedings below were in disregard of the maxim, Nemo tenetur seipsum accusare, and without saying whether there was, in fact, any substantial violation of the privilege of immunity from self-incrimination, the court, for the purpose only of discussion, has entered upon the academic inquiry whether a state may, without violating the Constitution of the United States, compel one accused of crime to be a witness against himself, a question of vast moment, one of such transcendent importance that a court ought not to decide it unless the record before it requires that course to Twining and Cornell were indicted for a be adopted. It is entirely consistent with criminal offense in a New Jersey court, and, the opinion just delivered that the court having been found guilty by a jury, were thinks that what is complained of as havsentenced, respectively, to imprisonment for ing been done at the trial of the accused six and four years. The judgment of con. was not, in law, an infringement of the viction was affirmed, first in the supreme privilege of immunity from self-incriminacourt of the state, afterwards in the court tion. Yet, as stated, the court, in its wisof errors and appeals. The case was dom, has forborne to say whether, in its brought here for review, and the accused judgment, that privilege was, in fact, vioassigned for error that the mode of pro-lated in the state court, but simply, for the ceeding during the trial was such as to purpose of discussion, has proceeded on the Judgment affirmed. Mr. Justice Harlan, dissenting: I feel constrained by a sense of duty to express my nonconcurrence in the action of the court in this case. assumption that the privilege was disregarded at the trial. As a reason why it takes up first the question of the power of a state, so far as the Federal Constitution is concerned, to compel self-incrimination, the court says that if the right here asserted is not a Federal right that is an end of the case, and it must not go further. It would, I submit, have been more appropriate to say that, if no ground whatever existed, under the facts disclosed by the record, to contend that a Federal right had been violated, this court would be without authority to go further and express its opinion on an abstract question relating to the powers of the states under the Constitution. abridges the privileges or immunities of national citizenship, must also be regarded as wanting in the due process of law enjoined by the 14th Amendment, when such state action substantially affects life, liberty, or property. The At the time of the adoption of the 14th Amendment immunity from self-incrimination was one of the privileges or immunities belonging to citizens, for the reason that the 5th Amendment, speaking in the name of the people of the United States, had declared, in terms, that no person "shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law." That Amendment, it was long What I have suggested as to the proper ago decided, operated as a restriction on course of procedure in this court is support- the exercise of powers by the United States ed by our action in Shoener v. Pennsyl- or by Federal tribunals and agencies, but vania, 207 U. S. 188, 195, 52 L. ed. 163, 166, (*did not impose any restraint upon a state 28 Sup. Ct. Rep. 110. That was a criminal or upon a state tribunal or agency. case, brought here from the supreme court original Amendments of the Constitution of Pennsylvania,-the accused, who was con- had their origin, as all know, in the belief victed, insisting that the proceeding against of many patriotic statesmen in the states him in the state court was in violation of the then composing the Union, that, under the clause of the Federal Constitution declaring Constitution, as originally submitted to the that no person shall be subject for the same people for adoption or rejection, the nationoffense to be twice put in jeopardy of life al government might disregard the fundaor limb. Upon looking into the record of mental principles of Anglo-American liberthat case we found that the accused had ty, for the maintenance of which our fanot been, previously, put in legal jeopardy thers took up arms against the mother for the same offense. We went no further, country. but dismissed the writ of error, declining What, let me inquire, must then have to consider the grave constitutional ques-been regarded as principles that were fundation pressed upon our attention, namely, whether the jeopardy clause of the Federal Constitution operated as a restraint upon the states in the execution of their criminal laws. But as a different course has been pursued in this case, I must of necessity consider the sufficiency of the grounds upon which the court bases its present judgment of affirmance. The court, in its consideration of the relative rights of the United States and of the several states, holds, in this case, that, with out violating the Constitution of the United States, a state can compel a person accused of crime to testify against himself. In my judgment, immunity from self-incrimination is protected against hostile state action, not only by that clause in the 14th Amendment declaring that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," but by the clause, in the same Amendment, "nor shall any state deprive any person of life, liberty, or property, without due process of law." No argument is needed to support the proposition that, whether manifested by statute or by the final judgment of a court, state action, if liable to the objection that it mental in the liberty of the citizen? Every student of English history will agree that, long before the adoption of the Constitution of the United States, certain principles affecting the life and liberty of the subject had become firmly established in the jurisprudence of England, and were deemed vital to the safety of freemen, and that among those principles was the one that no person accused of crime could be compelled to be a witness against himself. It is true that at one time in England the practice of "questioning the prisoner" was enforced in star chamber proceedings. But we have the authority of Sir James Fitzjames Stephen, in his History of the Criminal Law of England, for saying that, soon after the Revolution of 1688, the practice of questioning the prisoner died out. Vol. 1, p. 440. The liberties of the English people had then been placed on a firmer foundation. Personal liberty was thenceforward jealously guarded. Certain it is, that when the present govern. ment of the United States was established it was the belief of all liberty-loving men in America that real, genuine freedom could not exist in any country that recog nized the power of government to compel persons accused of crime to be witnesses against themselves. And it is not too much | those rights (that famous declaration disto say that the wise men who laid the tinctly announced) was the right of a perfoundations of our constitutional govern son not to be compelled to give evidence ment would have stood aghast at the sug- against himself. Precisely the same declaragestion that immunity from self-incrimina- tion was made in Pennsylvania by its contion was not among the essential, funda- vention assembled at Philadelphia on the mental principles of English law. An able 15th of July 1776. Vermont, by its conwriter on English and American constitu- vention of 1777, said "Nor can he [a man tional law has recently well said: "When accused of crime] be compelled to give evithe first Continental Congres of 1774 dence against himself." Maryland, in 1776, claimed to be entitled to the benefit, not only declared that "no man ought to be comof the common law of England, but of such pelled to give evidence against himself, in a of the English statutes as existed at the court of criminal law." Massachusetts, in time of the colonization, and which they had its Constitution of 1780, provided that "no by experience found to be applicable to their subject shall be . compelled to acseveral local and other circumstances, they cuse, or to furnish evidence against, himsimply declared the basic principle of Eng- self." The same provision was made by lish law that English subjects, going to a New Hampshire in its Constitution of 1784. new and uninhabited country, carry with | And North Carolina as early as 1776 recogthem, as their birthright, the laws of Eng-nized the privilege of immunity from selfland existing when the colonization takes incrimination by declaring, in its Constiplace. English law, public and pri- tution, that a man "shall not be compelled vate, continued in force in all the states to give evidence against himself." These exthat became sovereign in 1776, each state plicit declarations in the Constitutions of declaring for itself the date from which leading colonies, before the submission of it would recognize it." Taylor, Science of the national Constitution to the people Jurisprudence, 436, 437. It is indisputably for adoption or rejection, caused patriotic established that, despite differences in forms men, whose fidelity to American liberty no of government, the people in the colonies one doubted, to protest that that instrument were a unit as to certain leading principles, was defective, in that it furnished no examong which was the principle that the peo- press guaranty against the violation by the ple were entitled to “enjoy the rights and national government of the personal rights privileges of British-born subjects and the that inhered in liberty. Nothing is made benefit of the common laws of England" (1 clearer by the history of our country than Story, Const. § 163), and that (to use the that the Constitution would not have been words of the Continental Congress of 1774) accepted by the requisite number of states, "by immigration to the colonies, the people but for the understanding, on all sides, that by no means forfeited, surrendered, or lost it should be promptly amended so as to any of those rights, but that they were then, meet this objection. So, when the first and their descendants are now, entitled to Congress met, there was entire unanimity the exercise and enjoyment of them as their among statesmen of that day as to the neceslocal and other circumstances enable them sity and wisdom of having a national Bill to exercise and enjoy." of Rights which would, beyond all question, Can there be any doubt that, at the open- secure against Federal encroachment all the ing of the War of Independence, the people rights, privileges, and immunities which,➡ of the colonies claimed as one of their everywhere and by everybody in America, birthrights the privilege of immunity from were then recognized as fundamental in* self-incrimination? This question can be an Anglo-American liberty. Hence the prompt swered in but one way. If, at the begin- incorporation into the supreme law of the ning of the Revolutionary War, any lawyer land of the original Amendments. By the had claimed that one accused of crime could 5th Amendment, as already stated, it was lawfully be compelled to testify against him- expressly declared that no one should be self, he would have been laughed at by his compelled, in a criminal case, to be a brethren of the bar, both in England and witness against himself. Those AmendAmerica. In accordance with this univer- ments being adopted by the nation, the peosal view as to the rights of freemen, Vir-ple no longer feared that the United States ginia, in its convention of May, 1776,-in or any Federal agency could exert power advance, be it observed, of the Declara- that was inconsistent with the fundamental tion of Independence, made a declara- rights recognized in those Amendments. It tion (drawn entirely by the celebrated is to be observed that the Amendments inGeorge Mason) which set forth certain troduced no principle not already familiar rights as pertaining to the people of that to liberty-loving people. They only put in state and to their posterity "as the basis the form of constitutional sanction, as barriand foundation of government." Amongers against oppression, the principles which | |