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[Cite as Twining v. New Jersey, 211 U.S. 78 (1908). NOTE: This decision concerns self-incrimination in a state court and whether the Fourteenth Amendment made the Fifth Amendment enforceable against State infringement. Citing Pressor concerning the right to arms, the Majority opinion referred to trial by jury, grand jury indictment, right to confront witnesses, and right to arms protections in the same individual rights context when it noted, "The right of trial by jury in civil cases, guaranteed by the Seventh Amendment ... and the right to bear arms, guaranteed by the Second Amendment ... [are] not ... guaranteed by the Fourteenth Amendment against abrigment by the States, ... the same decision was made in respect of ... the Fifth Amendment ... Sixth Amendment." (P. 98) Concerning these rights the Court continued, "the Fourteenth Amendment did not forbid the States to abridge the personal rights enumerated in the first eight Amendments" "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." (P. 99) In his dissenting opinion Justice Harlan similarly referred to the bill of rights as protecting individual rights: "[founders protested new constitution] was defective, in that it furnished no express guaranty against the violation by the National Government of the personal rights that inhered in liberty." "[Founders were unanimous] as to necessity and wisdom of having a National Bill of Rights which would, beyond all question, secure against Federal encroachment all the rights, privileges and immunities which, everywhere and by everybody in America, were then recognized as fundamental in Anglo-American liberty." "the Amendments introduced no principle not already familiar to liberty-loving people." (P. 120-121) Unqualified reference to all the rights as individual rights is similar to the Court's comments eighty years later in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).]

TWINING v. STATE OF NEW JERSEY.

ERROR TO THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY.

No. 10. Argued March 19, 20, 1908.--Decided November 9, 1908.

The judicial act of the highest court of a State in authoritatively construing and enforcing its laws is the act of the State.

Exemption from compulsory self-incrimination in the state courts is not secured by any part of the Federal Constitution.

There is a citizenship of the United States and a citizenship of the State which are distinct from each other, Slaughter House Cases, 16 Wall. 36; and privileges and immunities, although fundamental, which do not arise out of the nature and character of the National Government, or are not specifically protected by the Federal Constitution, are attributes of state, and not of National, citizenship.

The first eight Amendments are restrictive only of National action, and while the Fourteenth Amendment restrained and limited state action it did not take up and protect citizens of the States from action by the States as to all matters enumerated in the first eight Amendments.

The words "due process of law" as used in the Fourteenth Amendment are intended to secure the individual from the arbitrary exercise of powers of government unrestrained, by the established principles of private right and distributive justice, Bank v. Okely, 4 Wheat. 235, but that does not require that he be exempted from compulsory self-incrimination in the courts of a State that has not adopted the policy of such exemption.

Exemption from compulsory self-incrimination did not form part of the "law of the land" prior to the separation of the colonies from the mother-country, nor is it one of the fundamental rights, immunities (p.79)and privileges of citizens of the United States, or an element of due process of law, within the meaning of the Federal Constitution or the Fourteenth Amendment thereto.

The fact that exemption from compulsory self-incrimination is specifically enumerated in the guarantees of the Fifth Amendment tends to show that it was, and is to be, regarded as a separate right and not as an element of due process of law.

When a question is no longer open in this court, adverse arguments, although weighty, will not be considered; and, under the doctrine of stare decisis, Slaughter-House Cases, 16 Wall. 36, and Maxwell v. Dow, 176 U.S. 581, approved and followed.

Quaere and not decided whether an instruction that the jury may draw an unfavorable inference from the failure of the accused to testify in denial of evidence tending to criminate him amounts to a violation of the privilege of immunity from self-incrimination.

74 N. J. L. 683, affirmed.

Albert C. Twining and David C. Cornell, the plaintiffs in error, hereafter called the defendants, were indicted by the grand jury of Monmouth County, in the State of New Jersey. The indictment charged that the defendants, being directors of the Monmouth Trust and Safe Deposit Company, knowingly exhibited a false paper to Larue Vreedenberg, an examiner of the State Banking Department, with intent to deceive him as to the condition of the company. Such an act is made a misdemeanor by a statute of the State (P. L. 1899, p. 450, at 461), which is as follows:

"Every director, officer, agent or clerk of any trust company who wilfully and knowingly subscribes or makes any false statement of facts or false entries in the books of such trust company, or knowingly subscribes or exhibits any false paper, with intent to deceive any person authorized to examine as to the condition of such trust company, or wilfully or knowingly subscribes to or makes any false report, shall be guilty of a high misdemeanor and punished accordingly."

The defendants were found guilty on March 1, 1904, by the verdict of a jury, and judgment upon the verdict, that the defendants be imprisoned for six and four years respectively, was affirmed successively by the Supreme Court and the Court (p.80)of Errors and Appeals. There needs to be stated here only such part of what occurred at the trial as will describe the questions on which this court is authorized to pass. It appeared that in February, 1903, the company closed its doors. The bank examiner came at once to the place of business for the purpose of examining the affairs of the company, and found there Twining and Cornell, who were respectively president and treasurer as well as directors. Having soon discovered that according to a book entry there had been a recent payment of $44,875, for 381 shares of stock, the examiner inquired of the defendants by what authority this had been done, and was informed that it was done by authority of the board of directors, and the following paper was produced to him as a record of the transaction:

"Monmouth Trust & Safe Deposit Company, Asbury Park, N.J.

"A special meeting of the board of directors of this company was held at the office of the company on Monday, Feb. 9th, 1903 "There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell. "The minutes of the regular meeting held Jan. 15th, 1903, were read, and on motion duly approved.

"All loans taken since the last meeting were gone over carefully, and, upon motion duly seconded, were unanimously approved.

"A resolution that this company buy 381 shares of the stock of the First National Bank at $44,875 was adopted.

"On motion the meeting adjourned."

This was the paper referred to in the indictment, and it was incumbent on the prosecution to prove that it was false and that it was "knowingly" exhibited by the defendants to the examiner. There was evidence on the part of the prosecution tending to prove both these propositions. The defendants called no witnesses and did not testify themselves, although the law of New Jersey gave them the right to do so if they chose. In his charge to the jury the presiding judge said:

"Now, gentlemen, was this paper false? In the first place, (p.81)the paper charged in the indictment certifies in effect that a special meeting of the board of directors of this company was held at the office of the company on Monday, February 9, 1903. There were present the following directors: George F. Kroehl, S. A. Patterson, G. B. M. Harvey, A. C. Twining, D. C. Cornell.

"Among other things appears a resolution of this company to buy 381 shares of the stock of the First National Bank at $44,875, which was adopted.

"Now, was that meeting held or not?

"That paper says that at this meeting were present, among others, Patterson, Twining and Cornell.

"Mr. Patterson has gone upon the stand and has testified that there was no such meeting to his knowledge; that he was not present at any such meeting; that he had no notice of any such meeting, and that he never acquiesced, as I understand, in any way in the passage of a resolution for the purchase of this stock.

"Now, Twining and Cornell, this paper says, were present. They are here in court and have seen this paper offered in evidence, and they know that this paper says that they were the two men, or two of the men, who were present. Neither of them has gone upon the stand to deny that they were present or to show that the meeting was held.

"Now, it is not necessary for these men to prove their innocence. It is not necessary for them to prove that this meeting was held. But the fact that they stay off the stand, having heard testimony which might be prejudicial to them, without availing themselves of the right to go upon the stand and contradict it, is sometimes a matter of significance.

"Now, of course, in this action, I do not see how that can have much weight, because these men deny that they exhibited the paper, and if one of these men exhibited the paper and the other did not, I do not see how you could say that the person who claims he did not exhibit the paper would be under any obligation at all to go upon the stand. Neither is under any (p.82)obligation. It is simply a right they have to go upon the stand, and, consequently the fact that they do not go upon the stand to contradict this statement in the minutes, they both denying, through their counsel and through their plea, that they exhibited the paper, I do not see that that can be taken as at all prejudicial to either of them. They simply have the right to go upon the stand, and they have not availed themselves of it, and it may be that there is no necessity for them to go there. I leave that entirely to you."

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

"Now, gentlemen, if you believe that that is so; if you believe this testimony, that Cornell did direct this man's attention to it--Cornell has sat here and heard that testimony and not denied it--nobody could misunderstand the import of that testimony, it was a direct accusation made against him of his guilt--if you believe that testimony beyond a reasonable doubt, Cornell is guilty. And yet he has sat here and not gone upon the stand to deny it. He was not called upon to go upon the stand and deny it, but he did not go upon the stand and deny it, and it is for you to take that into consideration.

"Now Twining has also sat here and heard this testimony, but you will observe there is this distinction as to the conduct of these two men in this respect: the accusation against Cornell was specific by Vreedenberg. It is rather inferential, if at all, against Twining, and he might say--it is for you to say whether he might say, 'Well, I don't think the accusation against me is made with such a degree of certainty as to require me to deny it, and I shall not; nobody will think it strange if I do not go upon the stand to deny it, because Vreedenberg is uncertain as to whether I was there; he won't swear that I was there.' So consequently the fact that Twining did not go upon the stand can have no significance at all.

"You may say that the fact that Cornell did not go upon the stand has no significance. You may say so, because the circumstances may be such that there should be no inference (p.83)drawn of guilt or anything of that kind from the fact that he did not go upon the stand. Because a man does not go upon the stand you are not necessarily justified in drawing an inference of guilt. But you have a right to consider the fact that he does not go upon the stand where a direct accusation is made against him."

The question duly brought here by writ of error is whether the parts of the charge set forth, affirmed, as they were by the Court of last resort of the State, are in violation of the Fourteenth Amendment of the Constitution of the United States.

Mr. John G. Johnson and Mr. Marshall Van Winkle, with whom Mr. William W. Gooch, Mr. Herbert C. Smyth and Mr. Frederic C. Scofield were on the brief, for plaintiffs in error:

Comment by the court upon the failure of the accused to testify was a violation of the fundamental rights of the plaintiff in error and was a denial of due process of law as guaranteed by the Fourteenth Amendment.

In each case the primary inquiry must be as to what is the system of law of the particular State, and whether, according to that law, as adjudged by its courts, the procedure in question is "due process;" and the secondary inquiry must be whether in that process of law if followed, there is any violation of the fundamental rights secured by the Federal Constitution. Guthrie's Fourteenth Amendment, p. 72, citing Kennard v. Louisiana, 92 U.S. 480, 481; Caldwell v. Texas, 137 U.S. 692, 698; Leeper v. Texas, 139 U.S. 462, 469; McNulty v. California, 149 U.S. 645, 647.

When a statute, harmless on its face, is systematically enforced in violation of fundamental rights, the procedure is not due process of law, and may be declared void and set aside by the courts under the jurisdiction conferred by the Fourteenth Amendment. Guthrie, p. 73, and cases cited.

The State of New Jersey alone permits comment upon the failure of the accused to testify, and bases its action solely upon the absence of any restriction in the qualifying statute, (p.84)holding that the accused is thus placed in the same position as any party to a civil suit. Parker v. State, 61 N. J. L. 308; State v. Wines, 65 N. J. L. 31; State v. Banusik, 64 Atl. Rep. 994.

In this connection the decisions of courts of States in the same class with New Jersey (as to statutory provisions on this subject) should be considered. See, therefore, People v. Tyler, 36 California, 522; Price v. Commonwealth, 77 Virginia (Ct. of App.), 393; State v. Howard, 35 S. Car. 202; Bird v. Georgia, 50 Georgia, 585, 589.

See also, for statutes and decisions of the several States on this subject, Wigmore on Evidence, Vol. 3, 2272, n.2, and Vol. 1, 488. Other cases are: Wilson v. United States, 149 U.S. 60; McKnight v. United States, 115 Fed. Rep. 982, 983; Cooper v. State, 86 Alabama, 610; People v. Cuff, 122 California, 589; People v. Brown, 53 California, 66; People v. Streuber, 121 California, 43; Quinn v. People, 123 Illinois, 345; Baker v. People, 105 Illinois, 452; Austin v. People, 102 Illinois, 261; Angelo v. People, 96 Illinois, 209; Miller v. People, 216 Illinois, 309; Wynehamer v. People, 13 N.Y. 444, 447; Ruloff v. People, 45 N.Y. 213, 225; People v. Courtney, 94 N.Y. 492.

Comment by the court upon the failure of the accused to testify was a denial to the plaintiff in error of his privilege and immunity as a citizen of the United States guaranteed by the Fourteenth Amendment, in that he was thus compelled to be a witness against himself in violation of the Fifth Amendment.

Whether or not the Fourteenth Amendment has extended the application of the principle of the Fifth Amendment to the several States is still an open question undecided by this court. Davidson v. New Orleans, 96 U.S. 104; The Slaughter-House Cases, 16 Wall. 36; Barrington v. Missouri, 205 U.S. 486.

The power of the States to abridge these great rights of citizens can never be conceded until the court shall expressly (p.85)so decide in a case involving the exact question, and adequately argued. Guthrie, p. 62.

That this privilege is a fundamental right is shown by the history of the provision contained in the Fifth Amendment. Bram v. United States, 168 U.S. 543 et seq.; 1 Stephen's History of the Criminal Law of England, 440; Story on the Constitution (5th ed.), 1782 and 1788; 2 Story's Commentaries on the Constitution (5th ed.), 697; Cooley's Const. Lim. (6th ed.), 375; Counselman v. Hitchcock, 142 U.S. 563. See Boyd v. United States, 116 U.S. 616, holding unconstitutional a statute making the failure of a witness to attend and produce evidence against himself, a confession of guilt.

Here a failure to take the stand is made an admission of guilt.

The compulsion prohibited by the Fifth Amendment is not alone physical or mental duress. United States v. Bell, 81 Fed. Rep. 837.

No statute, rule or regulation, or act of administration in the given case, can be constitutional, which does not in some way protect the right to be silent if the citizen chooses to be silent. United States v. Bell, supra.

And as to requiring production of documents which would have been self-incriminating, see McKnight v. United States, 115 Fed. Rep. 981.

When a State violates a fundamental right of a citizen of the United States, this court will interfere; and the laws of a State come under the prohibition of the Fourteenth Amendment when they infringe fundamental rights. Ballard v. Hunter, 204 U.S. 262.

The State has full control over the procedure in its courts, both in civil and criminal cases, 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. Brown v. New Jersey, 175 U.S. 175; West v. Louisiana, 194 U.S. 263; Rogers v. Peck, 199 U.S. 425; Gibson v. Mississippi, 162 U.S. 563.(p.86)

Due process implies, at least, conformity to natural and inherent principles of justice. Holden v. Hardy, 169 U.S. 366.

In the Fourteenth Amendment, by parity of reasoning, it refers to that law of the land, in each State, which derives its authority from the inherent and reserved powers of the State, exercised within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws and alter them at their pleasure. Hurtado v. California, 110 U.S. 516. The purpose of that Amendment is to extend to the citizens and residents of the States the same protection against arbitrary state legislation affecting life, liberty and property as is afforded by the Fifth Amendment against similar legislation by Congress. Tonawanda v. Lyon, 181 U.S. 392; Guthrie, 2, 3; Holden v. Hardy, 169 U.S. 366, 389; O'Neil v. Vermont, 144 U.S. 323, 370.

Mr. Robert H. McCarter, Attorney General of the State of New Jersey, and Mr. H. M. Nevius, with whom Mr. Nelson B. Gaskill was on the brief, for defendant in error:

If the court shall be of the opinion that the charge of the trial court had the effect of violating the privilege against compulsory self-crimination, we answer to the first assignment that it discloses no fundamental right or immunity guaranteed to the plaintiffs in error as citizens of the United States by the Fourteenth Amendment which has been abridged by the decision of the court of last resort of New Jersey.

While it is unquestionably true that there has always been in existence in this country a general government over and among the States, the sole rights secured by constitutional provision prior to the formation of the present Federal Government were those of the citizens of the several States. In these several constitutions, as in that of New Jersey, the inhabitants of each State declared the limitations which were (p.87)deemed essential to the protection and preservation of their cherished rights. The powers of the States differ in this respect from the powers of the general government, because, representing the people of the State, each state government exercises those powers against which it is not restrained by the limitations of the state constitution; while the general government, being a government of delegated powers, exercises only those powers which are contained in the provisions of the Federal Constitution. In the rights and restrictions under the state constitutions, therefore, rest the rights of the citizens of the States as such.

When a Federal Government was later formed, a Federal citizenship first came into being, not dependent upon the state constitutions, and not equipped with common-law rights, but dependent upon the essential requisites and provisions of the instrument, the Federal Constitution, which called it into being. The rights of a citizen of the United States may be those of a citizen of any of the States by virtue of the two citizenships existing conjointly in any one person, but they are not necessarily coincident; and the rights of a citizen of the United States are not necessarily those of a citizen of any of the individual States.

The duty of protection to a citizen of a State in his privileges and immunities is not by the Fourteenth Amendment devolved upon the general government, but remains with the State itself where it naturally and properly belongs. Story on the Constitution (5th ed.), par. 1936. See also Kemmler v. United States, 136 U.S. 448; Duncan v. Missouri, 152 U.S. 382; Wadleigh v. Newhall, 136 Fed. Rep. 946.

There is in the Federal Constitution, the source of the rights and immunities of the plaintiffs in error as citizens of the United States, no guarantee of a privilege against compulsory self-crimination which is binding upon the courts of New Jersey, or the abridgment of which by the state courts would give corrective jurisdiction in the Federal Supreme Court.

The only basis for a contrary claim is found in the Fifth (p.88)Amendment which, however, is binding only on the Federal Government and its agencies, and is not a limitation upon any of the States. The rights or immunities which it creates, therefore, are rights and immunities against Federal, but not against state interference or abridgment. See Barron v. Baltimore, 7 Pet. 243, which was reviewed and followed in Twitchell v. The Commonwealth, 7 Wall. 321; Walker v. Sauvinet, 92 U.S. 90; Hallinger v. Davis, 146 U.S. 314; Holden v. Hardy, 169 U.S. 366; Munn v. Illinois, 94 U.S. 113; Kelly v. Pittsburg, 104 U.S. 78; Nashville v. Alabama, 128 U.S. 96; Davis v. Texas, 139 U.S. 651.

As plaintiffs in error make no claim to this court as citizens of New Jersey, whatever rights and immunities have been abridged are not a matter of concern to this court unless they can be shown to have had their origin in the Constitution of the United States, or its Amendments, or the necessary requisites thereof. The only right against compulsory self-crimination guaranteed to citizens of the United States is a right and immunity operative in Federal courts, or in any sphere of Federal influence, but there is no such right guaranteed as such to citizens of the United States by the Constitution of the United States or its Amendments, which the State of New Jersey is obliged to consider.

If it be true that the Fourteenth Amendment added to the civil rights of citizens of the United States, the civil rights peculiar to the other citizens of any State in which they might choose to reside, and so far abolished the distinction between citizenship of a State and of the United States, then it is only necessary to inquire into the status of the rights and immunities with reference to the privilege against self-crimination enjoyed by the citizens of the State of New Jersey at the time of the promulgation of the Fourteenth Amendment.

This Amendment created no new civil rights. It merely extended the operation of existing rights, and furnished additional protection to such rights. Barbier v. Connolly, 113 U.S. 27; United States v. Sanges, 48 Fed. Rep. 78; Minor v. Happersett, (p.89)21 Wall. 171; United States v. Cruikshank, 92 U.S. 542.

If, therefore, there was added to the civil rights and immunities guaranteed to the plaintiffs in error as citizens of the United States, any additional immunities or rights by virtue of the Fourteenth Amendment, the addition comprises only those rights and immunities which were common to all other citizens of New Jersey in July, 1868, when the Amendment went into effect. And citizens of the United States, resident in New Jersey, could have had at that time no greater rights or immunities than the other citizens of New Jersey enjoyed.

To a citizen of the United States there was at the time of the adoption of the Fourteenth Amendment, no guaranteed privilege or immunity with reference to an alleged error complained of which the courts of New Jersey were bound to recognize, and in the courts of New Jersey as to all persons under their jurisdiction, there was no right or immunity against the submission by a trial court to a jury of the question and matter submitted in this case.

The courts of New Jersey had established at that time the principle of privilege against self-crimination, and had also established as a parallel and not as a contradictory principle, that the question of inference to be raised by the failure to deny a direct criminal accusation when opportunity offered, might properly be submitted to a jury. Plaintiffs in error cannot show the existence of any fundamental right or immunity against compulsory self-crimination, guaranteed by the Fourteenth Amendment, which has been abridged by the courts of New Jersey, as alleged by the pleader in his first assignment of error. On the contrary, the charge in this case was in accordance with the legal recognition of the right of self-crimination as that right existed in New Jersey from the very beginning, and which has not been altered or attempted to be altered since the passage and adoption of the Fourteenth Amendment.(p.90)

Plaintiffs in error have no just complaint on the basis of any want of due process of law. The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. Each State prescribes its own modes of judicial proceedings. Hallinger v. Davis, 146 U.S. 321, citing Missouri v. Lewis, 101 U.S. 51, and see also Holden v. Hardy, 169 U.S. 366, 389; Hurtado v. California, 110 U.S. 535; Walker v. Sauvinet, 92 U.S. 92.

The Fourteenth Amendment legitimately operates to extend to the citizens and residents of the States the same protection against arbitrary state legislation affecting life, liberty and property, as is offered by the Fifth Amendment against similar legislation by Congress. But the Federal courts ought not to interfere when what is complained of amounts to the enforcement of the laws of a State applicable to all persons in like circumstances and conditions, and the Federal courts should not interfere unless there is some abuse of law amounting to confiscation of property or deprivation of personal rights. 9 Fed. Stat. Ann., 427.

Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court.

In the view we take of the case we do not deem it necessary to consider whether, with respect to the Federal question, there is any difference in the situation of the two defendants. It is assumed, in respect of each, that the jury were instructed that they might draw an unfavorable inference against him from his failure to testify, where it was within his power, in denial of the evidence which tended to incriminate him. The law of the State, as declared in the case at bar, which accords with other decisions (Parker v. State, 61 N. J. L. 308; State v. Wines, 65 N. J. L. 31; State v. Zdanowicz, 69 N. J. L. 619; State v. Banuski, 64 Atl. Rep. 994), permitted such an inference to be drawn. The judicial act of the highest court of the (p.91)State, in authoritatively construing and enforcing its laws, is the act of the State. Ex parte Virginia, 100 U.S. 339; Scott v. McNeal, 154 U.S. 34; Chicago, Burlington & Quincy Railroad Company v. Chicago, 166 U.S. 226. The general question, therefore, is, whether such a law violates the Fourteenth Amendment, either by abridging the privileges or immunities of citizens of the United States, or by depriving persons of their life, liberty or property without due process of law. In order to bring themselves within the protection of the Constitution it is incumbent on the defendants to prove two propositions: first, that the exemption from compulsory self-incrimination is guaranteed by the Federal Constitution against impairment by the States; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar. The first proposition naturally presents itself for earlier consideration. If the right here asserted is not a Federal right, that is the end of the case. We have no authority to go further and determine whether the state court has erred in the interpretation and enforcement of its own laws.

The exemption from testimonial compulsion, that is, from disclosure as a witness of evidence against oneself, forced by any form of legal process, is universal in American law, though there may be differences as to its exact scope and limits. At the time of the formation of the Union the principle that no person could be compelled to be a witness against himself had become embodied in the common law and distinguished it from all other systems of jurisprudence. It was generally regarded then, as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions. Five of the original thirteen States (North Carolina, 1776; Pennsylvania, 1776; Virginia, 1776; Massachusetts, 1780; New Hampshire, 1784) had then guarded the principle from legislative or judicial change by including it in Constitutions or Bills of Right; Maryland had provided in her Constitution (1776) that "no man ought to be compelled to give evidence against (p.92)himself, in a common court of law, or in any other court, but in such cases as have been usually practised in this State or may hereafter be directed by the legislature;" and in the remainder of those States there seems to be no doubt that it was recognized by the courts. The privilege was not included in the Federal Constitution as originally adopted, but was placed in one of the ten Amendments which were recommended to the States by the first Congress, and by them adopted. Since then all the States of the Union have, from time to time, with varying form but uniform meaning, included the privilege in their Constitutions, except the States of New Jersey and Iowa, and in those States it is held to be part of the existing law. State v. Zdanowicz, supra; State v. Height, 117 Iowa, 650. It is obvious from this short statement that it has been supposed by the States that, so far as the state courts are concerned, the privilege had its origin in the constitutions and laws of the States, and that persons appealing to it must look to the State for their protection. Indeed, since by the unvarying decisions of this court the first ten Amendments of the Federal Constitution are restrictive only of National action, there was nowhere else to look up to the time of the adoption of the Fourteenth Amendment, and the State, at least until then, might give, modify or withhold the privilege at its will. The Fourteenth Amendment withdrew from the States powers theretofore enjoyed by them to an extent not yet fully ascertained, or rather, to speak more accurately, limited those powers and restrained their exercise. There is no doubt of the duty of this court to enforce the limitations and restraints whenever they exist, and there has been no hesitation in the performance of the duty. But, whenever a new limitation or restriction is declared, it is a matter of grave import, since, to that extent, it diminishes the authority of the State, so necessary to the perpetuity of our dual form of government, and changes its relation to its people and to the Union. The question in the case at bar has been twice before us, and been left undecided, as the cases were disposed of on other grounds. Adams v. New (p.93)York, 192 U.S. 585; Consolidated Rendering Co. v. Vermont, 207 U.S. 541. The defendants contend, in the first place, that the exemption from self-incrimination is one of the privileges and immunities of citizens of the United States which the Fourteenth Amendment forbids the states to abridge. It is not argued that the defendants are protected by that part of the Fifth Amendment which provides that "no person ... shall be compelled in any criminal case to be a witness against himself," for it is recognized by counsel that by a long line of decisions the first ten Amendments are not operative on the States. Barron v. Baltimore, 7 Pet. 243; Spies v. Illinois, 123 U.S. 131; Brown v. New Jersey, 175 U.S. 172; Barrington v. Missouri, 205 U.S. 483. But it is argued that this privilege is one of the fundamental rights of National citizenship, placed under National protection by the Fourteenth Amendment, and it is specifically argued that the "privileges and immunities of citizens of the United States," protected against State action by that Amendment, include those fundamental personal rights which were protected against National action by the first eight Amendments; that this was the intention of the framers of the Fourteenth Amendment, and that this part of it would otherwise have little or no meaning and effect. These arguments are not new to this court and the answer to them is found in its decisions. The meaning of the phrase "privileges and immunities of citizens of the United States," as used in the Fourteenth Amendment, came under early consideration in the Slaughter-House Cases, 16 Wall. 36. A statute of Louisiana created a corporation and conferred upon it the exclusive privilege, for a term of years, of establishing and maintaining within a fixed division of the city of New Orleans stock-yards and slaughter-houses. The act provided that others might use these facilities for a prescribed price, forbade the landing for slaughter or the slaughtering of animals elsewhere or otherwise, and established a system of inspection. Those persons who were driven out of independent business by this law denied its validity in suits which came to this (p.94)court by writs of error to the Supreme Court of the State, which had sustained the act. It was argued, inter alia, that the statute abridged the privileges and immunities of the plaintiffs in error as citizens of the United States, and the particular privilege which was alleged to be violated was that of pursuing freely their chosen trade, business or calling. The majority of the court were not content with expressing the opinion that the act did not in fact deprive the plaintiffs in error of their right to exercise their trade (a proposition vigorously disputed by four dissenting justices), which would have disposed of the case, but preferred to rest the decision upon the broad ground that the right asserted in the case was not a privilege or immunity belonging to persons by virtue of their National citizenship, but, if existing at all, belonging to them only by virtue of their state citizenship. The Fourteenth Amendment, it is observed by Mr. Justice Miller, delivering the opinion of the court, removed the doubt whether there could be a citizenship of the United States independent of citizenship of the State, by recognizing or creating and defining the former. "It is quite clear, then," he proceeds to say (p. 74), "that there is a citizenship of the United States and a citizenship of a State, which are distinct from each other and which depend upon different characteristics or circumstances in the individual." The description of the privileges and immunities of state citizenship, given by Mr. Justice Washington in Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230, is then quoted, approved and (p. 76) said to include "those rights which are fundamental," to embrace "nearly every civil right for the establishment and protection of which organized government is instituted," and "to be the class of rights which the state governments were created to establish and secure." This part of the opinion then concludes with the holding that the rights relied upon in the case are those which belong to the citizens of States as such and are under the sole care and protection of the state governments. The conclusion is preceded by the important declaration that the civil rights theretofore appertaining to citizenship of the States (p.95)and under the protection of the States, were not given the security of National protection by this clause of the Fourteenth Amendment. The exact scope and the momentous consequence of this decision are brought into clear light by the dissenting opinions. The view of Mr. Justice Field, concurred in by Chief Justice Chase and Justices Swayne and Bradley, was that the fundamental rights of citizenship, which by the opinion of the court were held to be rights of state citizenship protected only by the state government, became, as the result of the Fourteenth Amendment, rights of National citizenship protected by the National Constitution. Said Mr. Justice Field (p. 95):

"The fundamental rights, privileges and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State.... The Amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by state legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no state could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and laws of the United States always controlled any state legislation of that character. But if the Amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence."(p.96)

In accordance with these principles it is said by the learned justice that the privileges and immunities of state citizenship described by Mr. Justice Washington, and held by the majority of the court still to pertain exclusively to state citizenship and to be protected solely by the state government, have been guaranteed by the Fourteenth Amendment as privileges and immunities of citizens of the United States. And see the concurring opinions of Mr. Justice Field and Mr. Justice Bradley in Bartemeyer v. Iowa, 18 Wall. 129, and in Butchers' Union Company v. Crescent City Company, 111 U.S. 746. There can be no doubt, so far as the decision in the Slaughter-House Cases has determined the question, that the civil rights sometimes described as fundamental and inalienable, which before the war Amendments, were enjoyed by state citizenship and protected by state government, were left untouched by this clause of the Fourteenth Amendment. Criticism of this case has never entirely ceased, nor has it ever received universal assent by members of this court. Undoubtedly, it gave much less effect to the Fourteenth Amendment than some of the public men active in framing it intended, and disappointed many others. On the other hand, if the views of the minority had prevailed it is easy to see how far the authority and independence of the States would have been diminished, by subjecting all their legislative and judicial acts to correction by the legislative and review by the judicial branch of the National Government. But we need not now inquire into the merits of the original dispute. This part at least of the Slaughter-House Cases, has been steadily adhered to by this court, so that it was said of it, in a case where the same clause of the Amendment was under consideration (Maxwell v. Dow, 176 U.S. 581, 591), "The opinion upon the matters actually involved and maintained by the judgment in the case has never been doubted or overruled by any judgment of this court." The distinction between National and state citizenship and their respective privileges there drawn has come to be firmly established. And so it was held that the right of peaceable assembly (p.97)for a lawful purpose (it not appearing that the purpose had any reference to the National Government) was not a right secured by the Constitution of the United States, although it was said that the right existed before the adoption of the Constitution of the United States, and that "it is and always has been one of the attributes of citizenship under a free government." United States v. Cruikshank, 92 U.S. 542, 551. And see Hodges v. United States, 203 U.S. 1. In each case the Slaughter-House Cases were cited by the court, and in the latter case the rights described by Mr. Justice Washington were again treated as rights of state citizenship under state protection. If then it be assumed, without deciding the point, that an exemption from compulsory self-incrimination is what is described as a fundamental right belonging to all who live under a free government, and incapable of impairment by legislation or judicial decision, it is, so far as the States are concerned, a fundamental right inherent in state citizenship, and is a privilege or immunity of that citizenship only. Privileges and immunities of citizens of the United States, on the other 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; In re Kemmler, 136 U.S. 436, 448; Duncan v. Missouri, 152 U.S. 377, 382.

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; 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; Wiley v. Sinkler, 179 U.S. 58; the right to enter the public lands, United States v. Waddell, 112 U.S. 76; 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; and the right to inform the United States authorities of violation of its laws, In re Quarles, 158 U.S. 532. [paragraph continues next page]

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