TWINING v. STATE OF NEW JERSEY
211 U.S. 78 (1908)
The case was a prosecution against
Twining and Cornell in New Jersey state court for knowingly exhibiting a false
banking paper to a state bank examiner. At trial, the judge, in his
instructions to the jury, commented on the fact that Twining and Cornell did
not take the stand to testify:
'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 [211 U.S. 78, 82] obligation.
It is simply a right they have 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.'
And again:
'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 [witness] 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.
The defendants were convicted.
“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 14th
Amendment of the Constitution of the United States.”
Mr. Justice Moody delivered the opinion of the
court:
. . . The general
question, therefore, is, whether such a law violates the 14th 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 defendants, however, do not stop here. They appeal to
another clause of the 14th Amendment, and insist that the self-incrimination
which they allege the instruction to the jury compelled was a denial of due
process of law. This contention requires separate consideration, for it is
possible that some of the personal rights safeguarded by the first eight
Amendments against national action may also be safeguarded against state
action, because a denial of them would be a denial of due process of law. Chicago, B. & Q. R. Co. v. Chicago,
166 U.S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. If this is so, it is not
because those rights are enumerated in the first eight Amendment, but because
they are of such a nature that they are included in the conception of due
process of law. Few [211 U.S. 78, 100]
phrases of the law are so elusive of exact apprehension as this.
Doubtless the difficulties of ascertaining its connotation have been increased
in American jurisprudence, where it has been embodied in constitutions and put
to new uses as a limit on legislative power. This court has always declined to
give a comprehensive definition of it, and has preferred that its full meaning
should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise. There
are certain general principles, well settled, however, which narrow the field
of discussion, and may serve as helps to correct conclusions. These principles
grow out of the proposition universally accepted by American courts on the
authority of Coke, that the words 'due process of law' are equivalent in
meaning to the words 'law of the land,' contained in that chapter of Magna
Charta which provides that 'no freeman shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or any wise destroyed;
nor shall we go upon him, nor send upon him, but by the lawful judgment of his
peers or by the law of the land.' Den ex dem. Murray v. Hoboken Land & Improv. Co., 18 How.
272, 15 L. ed. 372; Davidson v. New
Orleans, 96 U.S. 97 , 24 L. ed. 616; Jones v. Robbins, 8 Gray, 329; Cooley, Const. Lim. 7th ed. 500; McGehee, Due Process of Law, 16. From the
consideration of the meaning of the words in the light of their historical
origin this court has drawn the following conclusions:
First. What is due process of law may be ascertained by an
examination of those settled usages and modes of proceedings existing in the
common and statute law of England before the emigration of our ancestors, and
shown not to have been unsuited to their civil and political condition by
having been acted on by them after the settlement of this country. This test
was adopted by the court, speaking through Mr. Justice Curtis, in Den ex dem. Murray
v. Hoboken Land & Improv. Co., 18 How. 272, 280, 15 L. ed. 372, 376
(approved in Hallinger v. Davis, 146 U.S. 314, 320 , 36 S. L. ed. 986, 989, 13 Sup. Ct. Rep. 105; Holden v. Hardy, 169 U.S. 366, 390 , 42 S. L. ed. 780, 790, 18 Sup. Ct. Rep. 383; but see Lowe v. Kansas, 163 U.S. 81, 85 , 41 S. L. ed. 78, 79, 16 Sup. Ct. Rep. 1031). Of course,
the part of the Constitution then [211 U.S. 78, 101] before the court was the 5th Amendment. If
any different meaning of the same words, as they are used in the 14th
Amendment, can be conceived, none has yet appeared in judicial decision. 'A
process of law,' said Mr. Justice Matthews, commenting on this statement of Mr.
Justice Curtis, 'which is not otherwise forbidden, must be taken to be due
process of law, if it can show the sanction of settled usage both in England
and in this country.' Hurtado v.
California, 110 U.S. 516, 528 , 28 S. L. ed. 232,
236, 4 Sup. Ct. Rep. 111, 117, 292.
Second. It does not follow, however, that a procedure settled
in English law at the time of the emigration, and brought to this country and
practiced by our ancestors, is an essential element of due process of law. If
that were so, the procedure of the first half of the seventeenth century would
be fastened upon the American jurisprudence like a straight
jacket, only to be unloosed by constitutional amendment. That, said Mr. Justice
Matthews, in the same case, p. 529, 'would be to deny every quality of the law
but its age, and to render it incapable of progress or improvement.' Holden v. Hardy, 169 U.S. 366, 388, 42
S. L. ed. 780, 789, 18 Sup. Ct. Rep. 383; Brown
v. New Jersey, 175 U.S. 172, 175 , 44 S. L. ed.
119, 120, 20 Sup. Ct. Rep. 77.
Third. But, consistently with the requirements of due
process, no change in ancient procedure can be made which disregards those
fundamental principles, to be ascertained from time to time by judicial action,
which have relation to process of law, and protect the citizen in his private
right, and guard him against the arbitrary action of government. This idea has
been many times expressed in differing words by this court, and it seems well
to cite some expressions of it. The words 'due process of law' 'were intended
to secure the individual from the arbitrary exercise of the powers of government,
unrestrained by the established principles of private rights and distributive
justice.' Bank of Columbia v. Okely, 4 Wheat. 235, 244, 4 L. ed. 559, 561 (approved
in Hurtado v. California, 110 U.S.
516, 527 , 28 S. L. ed. 232, 235, 4 Sup. Ct. Rep. 111,
292; Leeper v. Texas, 139 U.S. 462, 468 , 35 S. L. ed. 225, 227, 11 Sup. Ct. Rep. 577; 154 U.S.
34, 45 , 38 S. L. ed. 896, 901, 14 Sup. Ct. Rep.
1108). 'This court has never attempted to define [211 U.S. 78, 102] with precision the words 'due process of
law.' . . . It is sufficient to say that there are certain immutable principles
of justice which inhere in the very idea of free government which no member of
the Union may disregard.' Holden v. Hardy,
169 U.S. 366, 389 , 42 S. L. ed. 780, 790, 18 Sup. Ct.
Rep. 383, 387. 'The same words refer to that law of the land in each state,
which derives its authority from the inherent and reserved powers of the state,
exerted within the limits of those fundamental principles of liberty and justice
which lie at the base of all our civil and political institutions.' Re Kemmler, 136 U.S. 436, 448, 34 S. L.
ed. 519, 524, 10 Sup. Ct. Rep. 930, 934. 'The limit of the full control which
the state has in the proceedings of its courts, both in civil and criminal
cases, is subject only to the qualification that such procedure must not work a
denial of fundamental rights or conflict with specific and applicable
provisions of the Federal Constitution.' West
v. Louisiana, 194 U.S. 258, 263, 48 S. L. ed. 965, 969, 24 Sup. Ct. Rep.
650, 652.
* * *
But, without repudiating or questioning the test proposed by Mr. Justice
Curtis for the court, or rejecting the inference drawn from English law, we
prefer to rest our decision on broader grounds, and inquire whether the
exemption from self-incrimination is of such a nature that it must be included
in the conception of due process. Is it a fundamental principle of liberty and
justice which inheres in the very idea of free government and is the inalienable
right of a citizen of such a government? If it is, and if it is of a nature
that pertains to process of law, this court has declared it to be essential to
due process of law. In approaching such a question it must not be forgotten
that in a free representative government nothing is more fundamental than the
right of the people, through their appointed servants, to govern themselves in
accordance with their own will, except so far as they have restrained
themselves by constitutional limits specifically established, and that, in our
peculiar dual form of government, nothing is more fundamental than the full
power of the state to order its own affairs and govern its own people, except
so far as the Federal Constitution, expressly or by fair implication, has withdrawn
that power. The power of the people of the states to make and alter their laws
at pleasure is the greatest security for liberty and justice, this court has
said in Hurtado v. California, 110
U.S. 516, 527 , 28 S. L. ed. 232, 235, 4 Sup. Ct. Rep.
111, 292. We are not invested with the jurisdiction to pass upon the
expediency, wisdom, or justice of the laws of the states as declared by their
courts, but only to determine their conformity with the Federal Constitution
and the paramount laws enacted pursuant to it. Under the guise of interpreting
the Constitution we must [211 U.S. 78, 107]
take care that we do not import into the discussion our own personal
views of what would be wise, just, and fitting rules of government to be
adopted by a free people, and confound them with constitutional limitations.
The question before us is the meaning of a constitutional provision which
forbids the states to deny to any person due process of law. In the decision of
this question we have the authority to take into account
only those fundamental rights which are expressed in that provision; not the
rights fundamental in citizenship, state or national, for they are secured
otherwise; but the rights fundamental in due process, and therefore an
essential part of it. We have to consider whether the
right is so fundamental in due process that a refusal of the right is a denial
of due process. One aid to the solution of the question is to inquire how the
right was rated during the time when the meaning of due process was in a
formative state, and before it was incorporated in American constitutional law.
Did those who then were formulating and insisting upon the rights of the people
entertain the view that the right was so fundamental that there could be no due
process without it? It has already appeared that, prior to the formation of the
American Constitutions, in which the exemption from compulsory
self-incrimination was specifically secured, separately, independently, and
side by side with the requirement of due process, the doctrine was formed, as
other doctrines of the law of evidence have been formed, by the course of
decision in the courts, covering a long period of time. Searching further, we
find nothing to show that it was then thought to be other than a just and useful
principle of law. None of the great instruments in which we are accustomed to
look for the declaration of the fundamental rights made
reference to it. The privilege was not dreamed of for hundreds of years
after Magna Charta (1215), and could not have been implied in the 'law of the
land' there secured. The Petition of Right (1629), though it insists upon the
right secured by Magna Charta to be condemned only by the law of the land, and
sets forth, by way of grievance, divers violations of [211 U.S. 78, 108] it, is silent upon the practice of
compulsory self-incrimination, though it was then a matter of common occurrence
in all the courts of the realm. The Bill of Rights of the first year of the
reign of William and Mary (1689) is likewise silent, though the practice of
questioning the prisoner at his trial had not then ceased. The negative
argument which arises out of the omission of all reference to any exemption
from compulsory self- incrimination in these three great declarations of
English liberty (though it is not supposed to amount to a demonstration) is
supported by the positive argument that the English courts and Parliaments, as
we have seen, have dealt with the exemption as they would have dealt with any
other rule of evidence, apparently without a thought that the question was
affected by the law of the land of Magna Charta, or the due process of law
which is its equivalent. * * *
. . . Mr.
Justice Bradley, speaking [211 U.S. 78, 113] 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
S. 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.
Even if the
historical meaning of due process of law and the decisions of this court did
not exclude the privilege from it, it would be going far to rate it as an
immutable principle of justice which is the inalienable possession of every
citizen of a free government. Salutary as the principle may seem to the great
majority, it cannot be ranked with the right to hearing before condemnation,
the immunity from arbitrary power not acting by general laws, and the
inviolability of private property. The wisdom of the exemption has never been
universally assented to since the days of Bentham, many doubt it to-day, and it
is best defended not as an unchangeable principle of universal justice, but as
a law proved by experience to be expedient. See Wigmore,
Ev. 2251.
It has no place in the jurisprudence of civilized and free countries outside
the domain of the common law, and it is nowhere observed among our own people
in the search for truth outside the administration of the law. It should, must,
and will be rigidly observed where it is secured by specific constitutional
safeguards, but there is nothing in it which gives it a sanctity above and
before constitutions themselves. Much might be said in favor of the view that
the privilege was guaranteed against state impairment as a privilege and
immunity of national citizenship, but, as has been shown, the decisions of this
court have foreclosed that view. There seems to be no reason whatever, however,
for straining the meaning of due process of law to include this privilege
within it, because, perhaps, we may think it of great value. The states had
guarded the privilege [211 U.S. 78, 114] to
the satisfaction of their own people up to the adoption of the 14th Amendment.
No reason is perceived why they cannot continue to do so. The power of their
people ought not to be fettered, their sense of responsibility lessened, and
their capacity for sober and restrained self- government weakened, by forced
construction of the Federal Constitution. If the people of New Jersey are not
content with 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.
* * *
Judgment affirmed.
Justice
Harlan dissents.