122 the people of the colonies, with entire unanimity, deemed vital to their safety and freedom. privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law. The privileges and immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty from the common law, were thus secured to every citizen of the United States, and placed beyond assault by any government, Federal or state; and due process of law, in all public proceedings affecting life, liberty, or property, was enjoined equally upon the nation and the states. What, then, were the privileges and immunities of citizens of the United States which the 14th Amendment guarded against encroachment by the states? Whatever they were, that Amendment placed them beyond the power of any state to abridge. And what were the rights of life and liberty which the Amendment protected! Whatever they were, that Amendment guarded them against any hostile state action that was wanting in due process of law. Still more. At the close of the late Civil War, which had seriously disturbed the foundations of our governmental system, the question arose whether provision should not be made by constitutional Amendments to secure against attack by the states the rights, privileges, and immunities which, by the original Amendments, had been placed beyond the power of the United States or any Federal agency to impair or destroy. Those rights, privileges, and immunities had not then, in terms, been guarded by the national Constitution against impairment or destruction by the states, although, before the adoption of the 14th Amendment, every state, without, perhaps, an exception, had, in some form, recognized, as part of its fundamental law, most, if not all, the rights and immunities mentioned in the original Amendments, among them immunity from self-incrimination. This is made clear by the opinion of the court in the present case. I will not attempt to enumerate all the The court says: "The exemption from testi- privileges and immunities which at that monial compulsion, that is, from disclosure time belonged to citizens of the United as a witness of evidence against one's self, States. But I confidently assert that among forced by any form of legal process, is uni- such privileges was the privilege of immuversal in American law, though there may nity from self-incrimination which the peobe a difference as to its exact scope and lim-ple of the United States, by adopting the 5th its. At the time of the formation of the Amendment, had placed beyond Federal enUnion, the principle that no person could croachment. Can such a view be deemed be compelled to be a witness against him- unreasonable in the face of the fact, frankself had become embodied in the commonly conceded in the opinion of the court, 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 ty rannical prosecutions." Such was the situation, the court concedes, at the time the 14th Amendment was prepared and adopted. That Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States, "and of the state wherein they reside." Momentous as this declaration was, in its political consequences, it was not deemed sufficient for the complete protection of the essential rights of national citizenship and personal liberty. though the nation was restrained by existing ment would have been disapproved by every constitutional provisions from encroaching state in the Union if it had saved or recupon those rights, yet, so far as the Federal ognized the right of a state to compel one Constitution was concerned, the states could, accused of crime, in its courts, to be a witat that time, have dealt with those rights ness against himself. We state the matter upon the basis entirely of their own Con- in this way because it is common knowledge stitution and laws. It was therefore deemed that the compelling of a person to criminate necessary that the 14th Amendment should, himself shocks or ought to shock the sense in the name of the United States, forbid, as of right and justice to everyone who loves it expressly does, any state from making liberty. Indeed, this court has not hesitator enforcing a law that will abridge the ed thus to characterize the star chamber that, at common law, as well at the time of the formation of the Union and when the 14th Amendment was adpoted, immunity from self-incrimination was a privilege “universal in American law," was everywhere deemed "of great value, a protection to the innocent, though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions?" Is it conceivable that a privilege or immunity of such a priceless character, one expressly recognized in the supreme law of the land, one thoroughly interwoven with the history of Anglo-American liberty, was not in the mind of the country when it declared, in the 14th Amendment, that no state shall abridge the privileges or immunities of citiAl-zens of the United States? The 14th Amend | method of compelling an accused to be a person, house, papers, or effects (4th witness against himself. In Boyd v. United Amend.). Even if I were anxious or willStates, 116 U. S. 616, 631, 633, 29 L. ed. ing to cripple the operation of the 14th 746, 751, 752, 6 Sup. Ct. Rep. 524, 533, 534, Amendment by strained or narrow interprewill be found some weighty observations by tations, I should feel obliged to hold that, Mr. Justice Bradley, delivering the judg- when that Amendment was adopted, all ment of the court, as to the scope and mean- these last-mentioned exemptions were among ing of the 4th and 5th Amendments. The the immunities belonging to citizens of the court, speaking by that eminent jurist, said: | United States, which, after the adoption of "Now, it is elementary knowledge, that one the 14th Amendment, no state could impair cardinal rule of the court of chancery is or destroy. But, as I read the opinion of never to decree a discovery which might the court, it will follow from the general tend to convict the party of a crime, or to principles underlying it, or from the reaforfeit his property. And any compulsory soning pursued therein, that the 14th discovery by extorting the party's oath, or Amendment would be no obstacle whatever compelling the production of his private in the way of a state law or practice under books and papers, to convict him of crime, which, for instance, cruel or unusual punor to forfeit his property, is contrary to the ishments (such as the thumbscrew, or the principles of a free government. It is ab- rack, or burning at the stake) might be inhorrent to the instincts of an Englishman; flicted. So of a state law which infringed it is abhorrent to the instincts of an Ameri- | the right of free speech, or authorized uncan. It may suit the purposes of despotic reasonable searches or seizures of persons, power, but it cannot abide the pure at their houses, papers, or effects, or a state mosphere of political liberty and personal law under which one accused of crime could freedom." Again: "We have already no- be put in jeopardy twice or oftener, at the ticed the intimate relation between the two pleasure of the prosecution, for the same Amendments. They throw great light on offense. each other. For the 'unreasonable searches and seizures' condemned in the 4th Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which, in criminal cases, is condemned in the 5th Amendment; and compelling a man ‘in a criminal case to be a witness against himself,' which is condemned in the 5th Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the 4th Amendment. And we have been unable to perceive that the seizure of a man's private books and papers, to be used in evidence against him, is substantially different from compelling him to be a witness against himself." These observations were referred to approvingly in Counselman v. Hitchcock, 142 U. S. 547, 580, 581, 35 L. ed. 1110, 1120, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195. I am of opinion that, as immunity from self-incrimination was recognized in the 5th Amendment of the Constitution, and placed beyond violation by any Federal agency, it should be deemed one of the immunities of citizens of the United States which the 14th Amendment, in express terms, forbids any state from abridging, as much so, for in stance, as the right of free speech (1st Amend.) or the exemption from cruel or unusual punishments (8th Amend.), or the exemption from being put twice in jeopardy of life or limb for the same of fense (5th Amend.), or the exemption from unreasonable searches and seizures of one's It is my opinion, also, that the right to immunity from self-incrimination cannot be taken away by any state consistently with the clause of the 14th Amendment that relates to the deprivation by the state of life or liberty without due process of law. This view is supported by what Mr. Justice Miller said for the court in Davidson v. New Orleans, 96 U. S. 97, 101, 102, 24 L. ed. 616, 618, 619. That great judge, delivering the opinion in that case said: "The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the 14th Amendment, in the year 1866." After observing that the equivalent of the phrase "due process of law," according to Lord Coke, is found in the words, "law of the land," in the Great of the rights of the subject against the opCharter, in connection with the guaranties pression of the Crown, the court said: "In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dictated by the jealousy of the states as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guaranties of personal rights of the same character." Among these guaranties this court distinctly said was protection against being twice tried for the same of Louisiana in the swamp land grant act of March 2, 1849 (9 Stat. at L. 352, chap. 87), that title shall vest in the state on approval of a list of lands by the Secretary of the Interior, was not affected by the general clause of the act of September 28, 1850 (9 Stat. at L. 519, chap. 84), granting swamp lands to Arkansas, to vest only upon the issuance of a patent, that the provisions of this act be extended to and their benefits be conferred upon each of the other states in which such swamp and overflowed lands may be situated. fense, and protection "against the accused, low the continuous construction of the Land being compelled, in a criminal case, to testi- Department that the special provision for fy against himself." Again, said the court: "It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the Crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament, of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that 'no state shall deprive any person of life, liberty, or property without due process of law,' can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail or has no application where the invasion of private rights is affected under the forms of state legislation." [Ed. Note. For other cases, see Statutes, Cent. States has no jurisdiction of a bill in equity [No. 7, Original.] I cannot support any judgment declaring that immunity from self-incrimination is not one of the privileges or immunities of national citizenship, nor a part of the liberty guaranteed by the 14th Amendment against hostile state action. The declaration of the court, in the opinion just delivered that immunity from self-incrimination is of Argued October 27, 28, 1908. Decided Nogreat value, a protection to the innocent, and a safeguard against unfounded and ty rannical prosecutions, meets my cordial*approval. And the court having heretofore, upon the fullest consideration, declared that the compelling of a citizen of the United tory of the Interior and the Commissioner of States, charged with crime, to be a witness against himself, was a rule abhorrent to the instincts of Americans, was in violation of universal American law, was contrary to the principles of free government, and a weapon of despotic power which could not abide the pure atmosphere of political liberty and personal freedom, I cannot agree that a state may make that rule a part of its law and binding on citizens, despite the Constitution of the United States. No former decision of this court requires that we should now so interpret the Constitution. vember 9, 1908. RIGINAL BILL in equity, filed by the the General Land Office, to establish the title of the state to certain swamp lands, and to enjoin the defendants from disposing of such lands. Dismissed for want of juris diction. The facts are stated in the opinion. Messrs. Harvey M. Friend, George H. Lamar, and Walter Guion for complainant. Attornel General Bonaparte, Solicitor General Hoyt, and Mr. Glenn E. Husted for defendants. * Mr. Justice Holmes delivered the opinion of the court: This is a bill brought in this court to establish the title of the state of Louisiana to certain swamp lands which it claims under the statutes of the United States, and to enjoin the defendants against carrying out an order making a different disposition of the lands. The defendants demur on the STATUTES (162*)-REPEAL BY IMPLICA grounds that this really is a suit against TION GENERAL SIONS. AND SPECIAL PROVI 1. The Federal Supreme Court will fol the United States, which has not consented to be sued, that the title never has passed For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes from the United States, and that the rem-, vided for a list, required the Secretary of edy, if any, would be at law. The act of March 2, 1849, chap. 87, 9 Stat. at L. 352, purported to grant to the state of Louisiana the whole of the swamp and overflowed lands therein, and provided that, on approval of a list of such lands by the Secretary of the Treasury (afterwards succeeded by the Secretary of the Interior), the fee simple to the same should vest in the state. Certain lands were excluded, but those in dispute were not by any express words. They belonged, however, to the Fort Sabine Military Reservation, established by the President on December 20, 1838, and although included in a list submitted under the statute, approval of the inclusion was suspended or denied. On March 25, 1871, the Fort Sabine Military Reservation was abandoned by Executive order, in pursuance of the act of February 24, 1871, chap. 68, 16 Stat. at L. 430, which authorized the Secretary of War to transfer it to the con trol of the Secretary of the Interior, to be sold for cash. On October 31, 1895, the Secretary of the Interior decided that the land was included in the grant of the act of 1849, subject to the right of the United States to use it for military purposes until abandoned. On December 10, 1895, pursuant to his decision, the Secretary indorsed upon a list of these lands that it was "approved to the state of Louisiana under the act of Congress of March 2, 1849, as supplemented and enlarged by the act of Congress of September 28, 1850 (9 Stat. at L. 519, chap. 84), subject to any valid adverse rights that may exist." The plaintiff says that thereupon the title passed. On June 6, 1904, the Secretary of the Interior ordered that his predecessor's approval of the list be vacated, and that the lands should be held for disposition as provided by law, on the ground that they were not within the grant of the act of 1849, because at that time embraced in a military reservation. This decision has been upheld and finally affirmed by the present Secretary, the defendant in this case, and the result is the bringing of this bill. We will assume, for purposes of decision, that, if the United States clearly had no title to the land in controversy, we should have jurisdiction to entertain this suit, for we are of opinion that, even on that assumption, the bill must be dismissed. But before giving the reasons for our opinion, the course taken by the argument for the United States makes it proper to state a portion of that argument that does not command our assent. The next year after the act of 1849, another act was passed, which granted swamp lands to the state of Arkansas. It pro the Interior to issue a patent for the lands at the request of the governor, and then enacted that, “on that patent," the fee simple to the lands should vest in the state. The 4th section was more general: "That the provisions of this act be extended to, and their benefits be conferred upon, each of the other states of the Union in which such swamp and overflowed lands, known as designated as aforesaid, may be situated." Act of September 28, 1850, chap. 84, 9 Stat. at L. 519. It is argued that this so far repealed the special act of 1849 that thereafter the title would not pass on simple approval, as provided therein, but a patent was necessary. As we understand, the continuous construction of the Department has been to the contrary, and a great number of titles to a very large amount of land would be disturbed if we should accede to this ar gument. We see no reason for overthrowing the long-continued understanding that the special provisions for Louisiana were not affected by a general clause, evidently intended to extend benefits to states that did not enjoy them at the time, not to change the mode of conveyance previously established in a case where the benefit already had been conferred. We may add that we assume that, if approval was sufficient to pass the title, the form of words used by the Secretary of the Interior on December 10, 1895, had that effect, notwithstanding the reference to the act of 1850, whatever may have been his understanding or intent. A further argument was presented that, if a patent was not necessary under the act of 1850, then a certificate by the Land Commissioner was made so by the act of August 3, 1854 (10 Stat. at L. 346, chap. 201, Rev. Stat. § 2449, U. S. Comp. Stat. 1901, p. 1516). But that law does not require so extended an application. We shall assume, for purposes of decision, that it is satisfied if confined according to its words to lands to which the act of 1849 did not purport "to convey the fee-simple title." Leaving the foregoing arguments on one side, we* nevertheless are of opinion that the bill must fail. The land in controversy had been withdrawn from the public domain by reservation at the time when the act of 1849 was passed, and the general words of that act must be read as subject to an implied exception, under the rule laid down in Scott v. Carew, 196 U. S. 100, 109, 49 L. ed. 403, 405, 25 Sup. Ct. Rep. 193, and the earlier cases there cited. The case is not one where the approval proceeded upon a mistake of fact with regard to a matter on which it was necessary that the Secretary should pass. See Noble v. Union River Logging R. Co. 147 U. §. 165, 173, | taining it as an entirety, gives an inde- [Ed. Note.-For other cases, see Courts, Dec. 2. The prohibition against teaching white But that doubt cannot be resolved in this case. It raises questions of law and of fact upon which the United States would have to be heard. The United States fairly might argue that the statute of limitations was confined to patents, or was excluded by the act of 1871. If it yielded those points it still reasonably might maintain that a title could not be acquired under the statute by a mere void approval on paper, if the United States ever since had been in possession, claiming title, as it claimed it earlier by the act of 1871. It might argue that, for equitable relief on the ground of title in the plaintiff, in the teeth of the last-named act, it would be necessary at least to allege that the state took and has held possession under the void grant. The United States might, and undoubtedly would, deny the fact of such possession, and that fact cannot be tried behind its back. It follows that the United States is a necessary party and that (211 U. S. 45) BEREA COLLEGE, Plff. in Err., V. COMMONWEALTH OF KENTUCKY. COURTS (391)-SUPREME Court. 1. The validity of Kentucky Acts 1904, chap. 85, so far as it prohibits domestic corporations from teaching white and negro pupils in the same institution, cannot be deemed affected by its possible invalidity under the Federal Constitution as to individuals, where the highest state court considers the act separable, and, while sus I [No. 12.] vember 9, 1908. IN ERROR to the Court of Appeals of the State of Kentucky to review a judgment which affirmed a conviction of a corporation in the Circuit Court of Madison County, in that state, of the offense of teaching white and negro pupils in the same institution. Affirmed. See same case below, 123 Ky. 209, 94 8. W. 623. Statement by Mr. Justice Brewer: *On October 8, 1904, the grand jury of Madison county, Kentucky, presented in the circuit court of that county an indictment, charging: "The said Berea College, being a corporation duly incorporated under the laws of the state of Kentucky, and owning, maintaining, and operating a college, school, and institution of learning, known as 'Berea College,' located in the town of Berea, Madison county, Kentucky, did unlawfully and wilfully permit and receive both the white and negro races as pupils for instruction in said college, school, and institution of learning." This indictment was found under an act of March 22, 1904 (Ky. Acts 1904, chap. 85, p. 181), whose 1st section reads: "Sec. 1. That it shall be unlawful for any person, corporation, or association of persons to maintain or operate any college, school, or institution where persons of the white and negro races are both received as pupils for instruction, and any person or corporation who shall operate or maintain any such college, school, or institution shall be fined $1,000, and any person or corporation who may be convicted of violating the provisions of this act shall be fined $100 for each day they may operate said school, college, or institution after such conviction." On a trial the defendant was found guilty and sentenced to pay a fine of $1,000. This judgment was, on June 12, 1906, affirmed by the court of appeals of the state (123 Ky. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 29 S.C.-3 |