nell, Plffs. in Err., STATE OF NEW JERSEY. (See S. C. Reporter's ed. 78-127.) Constitutional law - privileges and immunities-self-incrimination. 1. Exemption from self-incrimination, though secured as against Federal action by U. S. Const., 5th Amend., is not one of the fundamental rights of national citizenship, so as to be included among the privileges and immunities of citizens of the United States which the states are forbidden by the 14th Amendment to abridge. [For other cases, see Constitutional Law, 180a196, 380-401, in Digest Sup. Ct. 1908.] Constitutional law — due process of law - self-incrimination. had been withdrawn from the public do- | ALBERT C. TWINING and David C. Cor. main 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. S. 165, 173, 174, 37 L. ed. 123, 126, 127, 13 Sup. Ct. Rep. 271. The approval proceeded upon a manifest mistake of law; that upon the abandonment of the military reservation the land fell within the terms of the grant of 1849. Therefore it was void upon its face. The only doubt is raised by the statute limiting suits by the United States to vacate patents to five years. Act of March 3, 1891, chap. 561, § 8, 26 Stat. at L. 1099. may be that this act applies to approvals when they are given the effect of patents as well as to patents, which alone are named. In United States v. Chandler-Dunbar Water Argued March 19, 20, 1908. Power Co. 209 U. S. 447, 52 L. ed. 881, 28 Sup. Ct. Rep. 579, it was decided that It this act applied to patents even if void because of a previous reservation of the land, and it was said that the statute not merely took away the remedy, but validated the patent. The doubt is whether Louisiana has not now a good title by the lapse of five years since the approval and by the opera tion of that act. 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, 78]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 we have no jurisdiction of this suit. Bill dismissed. not safeguarded as against state action by 2. Exemption from self-incrimination is the provision of U. S. Const. 14th Amend., that no state shall deprive any person of life, liberty, or property without due process of law. Due process of law in criminal matters, see Constitutional Law, 779-830, in Digest Sup. [No. 10.] vember 9, 1908. Decided No IN ERROR to the Court of Errors and Appeals of the State of New Jersey to review a judgment which affirmed a judg ment of the Supreme Court of that state, affirming a conviction in the Court of Quarter Sessions of the County of Monmouth of having knowingly exhibited a false paper to a bank examiner, with intent to deceive. Affirmed. See same case below, 73 N. J. L. 683, 64 Atl. 1073, 1135. Statement by Mr. Justice Moody: 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 & 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. statute of the state (P. L. 1899, p. 450, at Such an act is made a misdemeanor by a 461), which is as follows: "Every director, officer, agent, or clerk of ingly subscribes or makes any false stateany trust company who wilfully and knowment 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 80] supreme court and the court 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 ap peared 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 defendant 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 direct ors: 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. 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. no such "Mr. Patterson has gone upon the stand and has testified that there was 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. All loans taken since the last meeting "Now, of course, in this action, I do not were gone over carefully, and, upon mosee how that can have much weight, betion duly seconded, were unanimously ap-cause these men deny that they exhibited proved. 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 defend ants 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? 81]In the first place, *the paper charged in 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 obligation.[82 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 relat ing 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 testiwony, 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 83]no inference *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 14th Amendment of the Constitution of the United States. 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, 14th Amend. p. 72; Kennard v. Louisiana, 92 U. S. 480, 481, 23 L. ed. 478, 479; Caldwell v. Texas, 137 U. S. 692, 698, 34 L. ed. 816, 818, 11 Sup. Ct. Rep. 224; Leeper v. Texas, 139 U. S. 462, 469, 35 L. ed. 225, 227, 11 Sup. Ct. Rep. 579; McNulty v. California, 149 U. S. 645, 647, 37 L. ed. 882, 883, 13 Sup. Ct. Rep. 959. 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 14th Amendment. Guthrie, 14th Amend. p. 73. In New Jersey no person can be compelled to be a witness against himself. State v. Zdanowicz, 69 N. J. L. 619, 55 Atl. 744. The state of New Jersey stands out alone, among all the states and territories of the Union, in permitting comment upon the failure of the accused to testify, and bases its action solely upon the absence of any restriction in the qualifying statute, 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, 39 Atl. 651; State v. Wines, 65 N. J. L. 31, 46 Atl. 702; State v. Banusik (N. J.) 64 Atl. 994. Comment upon the failure of the accused to testify is a violation of his fundamental right to remain silent. People v. Tyler, 36 Cal. 522; Price v. Com. 77 Va. 393; State v. Howard, 35 S. C. 202, 14 S. E. 481; Bird v. Georgia, 50 Ga. 585; 1 Wigmore, Ev. § 488; 3 Wigmore, Ev. § 2272, note 2; Wilson v. United States, 149 U. S. 60, 37 L. ed. 650, 13 Sup. Ct. Rep. 765; McKnight v. United States, 54 C. C. A. 358, 115 Fed. 982; Cooper v. State, 86 Ala. 610, 4 L.R.A. 766, 11 Am. St. Rep. 84, 6 So. 110; People v. Cuff, 122 Cal. 589, 55 Pac. 407; Petite v. People, 8 Colo. 518, 9 Pac. 622; Wharton, Crim. Ev. 9th ed. § 435; Quinn v. People, 123 Ill. 345, 15 N. E. 46; Baker v. People, 105 Ill. 452; Austin v. People, 102 Ill. 261; Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132; Miller v. People, 216 Ill. 309, 74 N. E. 743; State v. Banks, 78 Me. 492, 7 Atl. 269; Wynehamer v. People, 13 N. Y. 444; Ruloff v. People, 45 N. Y. 213; People v. Courtney, 94 N. Y. 492; State v. Hull, 18 R. I. 211, 20 L.R.A. 609, 26 Atl. 191; State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26; State v. Williams, 11 S. D. 64, 75 N. W. 815; State v. Cameron, 40 Vt. 555; Guthrie, 14th Amend. p. 67. Where a fundamental right guaranteed by the earlier amendments is involved, then this court has jurisdiction because of the, when this government was formed. Under guaranty in the 14th Amendment that no the shelter of judicial decision the subject state shall abridge those privileges or immunities, or deny due process of law. Davidson v. New Orleans, 96 U. S. 104, 24 L. ed. 619; Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394; Barrington v. Missouri, 205 U. S. 486, 51 L. ed. 894, 27 Sup. Ct. Rep. 582. This question has been twice brought to the attention of this court, and is still open and undecided. Consolidated Rendering Co. v. Vermont, 207 U. S. 553, 52 L. ed. 335, 28 Sup. Ct. Rep. 178; Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372. became secure and could not be compelled to accuse himself; and, with the adoption of the 4th and 5th Amendments, principles established at common law became reaffirmed in the Constitution. United States v. 3 Tons of Coal, 6 Biss. 386, Fed. Cas. No. 16,515. The principle is well established that this constitutional provision, which has long been regarded as one of the safeguards of civil liberty, should be applied in a broad spirit, to secure to the citizen immunity from every kind of self-accusation. Re Nachman, 114 Fed. 996. By analogy the case at bar is in the same class with Boyd v. United States, supra, where a statute making the failure of a wit The power of the states to abridge these great rights of citizens can never be conceded until the court shall expressly so decide in a case involving the exact ques-ness to attend and produce evidence against tion and adequately argued. Guthrie, 14th Amend. p. 62. In determining whether or not this privilege is a fundamental right, the history of the provision is significant. Bram v. United States, 168 U. S. 543, 42 L. ed. 573, 18 Sup. Ct. Rep. 183; 1 Stephen, History of Crim. Law, Eng. p. 440; Story, Const. 5th ed. pp. 1782, 1788. In all the states the accused is entitled to a speedy and public trial by an impartial tribunal; to have the presence, advice, and assistance of counsel in his defense; to be confronted with the witnesses against him; and is not to be compelled to give evidence against himself. However much the forms of proceeding or the nature of the tribunal may be changed, due process of law must necessarily include each and all of these requisites. 2 Story, Const. 5th ed. p. 697. It is an ancient principle of the law of evidence that a witness shall not be compelled in any proceeding to make disclosures or to give testimony which will tend to criminate him or subject him to fines, penalties, or forfeitures. Counselman v. Hitchcock, 142 U. S. 563, 35 L. ed. 1114, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195. himself a confession of guilt was held unconstitutional. The laws of a state come under the prohibition of the 14th Amendment when they infringe fundamental rights. Ballard v. Hunter, 204 U. S. 262, 51 L. ed. 474, 27 Sup. Ct. Rep. 261. 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 Fedreal Constitution. Brown v. New Jersey, 175 U. S. 175, 44 L. ed. 120, 20 Sup. Ct. Rep. 77; West v. Louisiana, 194 U. S. 263, 48 L. ed. 970, 24 Sup. Ct. Rep. 650. Where fundamental rights specially secured by the Federal Constitution are invaded, the Federal courts will interfere with a state in the administration of its law for the prosecution of crime. Rogers v. Peck, 199 U. S. 425, 50 L. ed. 256, 26 Sup. Ct. Rep. 87; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904. Due process implies, at least, conformity to natural and inherent principles of justice. Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383. In the 14th Amendment, by parity of rea Any compulsory discovery is contrary to the principles of a free government. It is abhorrent to the instincts of an English-soning, it refers to that law of the land in man; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom. 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 Boyd v. United States, 116 U. S. 616, 29 and political institutions, and the greatest L. ed. 746, 6 Sup. Ct. Rep. 524. The common-law rule upon this subject was established in England, and thus it existed and was the law of that realm when the American colonies were organized and 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, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292. The purpose of the 14th 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 5th Amendment against similar legislation by Congress. Tonawanda v. Lyon, 181 U. S. 392, 45 L. ed. 911, 21 Sup. Ct. Rep. 609; Guthrie, 14th Amend. pp. 2, 3. Dow, 176 U. S. 581, 44 L. ed. 597, 20 Sup Ct. Rep. 448, 494; Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394. In the construction of the language of the Constitution here relied upon, as, indeed, in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument. Ex parte Bain, 121 U. S. 1, 12, 30 L. ed. 849, 853, 7 Sup. Ct. Rep. 781. There are certain immutable principles of justice which inhere in the very idea of The intention of the framers of the free government which no member of the Amendment, and the design of the AmendUnion may disregard, and these principles ment itself, was to change the existing conrecognize the inherent rights of the indi-dition, and to thus forever disable the states vidual, and are embodied and intended to be protected and secured by the fundamental law, and the 14th Amendment imposes upon the courts the duty to protect every individual or corporation from arbitrary denial or abridgment of those rights by the states. from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States. Congressional Globe, p. 2764, May 23, 1866, 1st Session 39th Congress, pt. 3. The genesis of the first section of the 14th Amendment is instructive as showing that Holden v. Hardy, 169 U. S. 366, 389, 42 it was constructed out of a demand for L. ed. 780, 790, 18 Sup. Ct. Rep. 383. protection to all "citizens" of a state as well as of the United States, and to all "persons." Since the adoption of the 14th Amendment no one of the fundamental rights of life, liberty, or property, recognized and guaranteed by the Constitution of the United States, can be denied or abridged by a state in respect to any person within its jurisdiction. These rights are principally enumerated in the earlier amendments of the Constitution. They were deemed so vital to the safety and security of the people that the absence from the Constitution adopted by the Convention of 1787 of express guaranties of them came very near defeating the acceptance of that instrument by the requisite number of states. House Res. 1, 39th Congress, 1st Session; Congressional Globe, pp. 14, 18, 566, 645, 39th Congress, 1st Session; House Journal, pp. 267, 333, 796. The effect of the 14th Amendment was that "the position of the United States is changed from that of a passive noninfringer of individual liberty to that of an active defender of the same against the states." 1 Burgess, Political Science & Comparative Const. Law, p. 185. While it is true that a state has full control over the procedure in its courts, both in civil and criminal cases, that is so subject to the qualification that such procedure O'Neil v. Vermont, 144 U. S. 323, 370, 36 must not work a denial of fundamental L. ed. 450, 469, 12 Sup. Ct. Rep. 693. Mr. Marshall Van Winkle argued the cause and filed a brief for plaintiff in error David C. Cornell: The plaintiff in error, Cornell, was denied a fundamental right guaranteed by the common law. Bird v. Georgia, 50 Ga. 585; 3 Wigmore, Ev. § 2250, pp. 3069, 3103, 3105, 3122; State v. Zdanowicz, 69 N. J. L. 619, 55 Atl. 744; United States v. 3 Tons of Coal, 6 Biss. 379, Fed. Cas. No. 16,515. rights or conflict with specific and applicable provisions of the Federal Constitution. Brown v. New Jersey, 175 U. S. 175, 44 L. ed. 119, 20 Sup. Ct. Rep. 77. Messrs. Robert H. McCarter and H. M. Nevius argued the cause and filed a brief for defendant in error: 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 A constitutional right and immunity of rights of a citizen of the United States plaintiffs in error were violated. are not necessarily those of a citizen of any of the individual states. Story, Const. 5th ed. ¶ 1936; Re Kemmler, 136 U. S. 448, 34 L. ed. 524, 10 Sup. Ct. Rep. 930; Duncan v. Missouri, 152 U. S. 382, 38 L. ed. 487, 14 Sup. Ct. Rep. 570; Wadleigh v. Newhall, 136 Fed. 946. The 5th Amendment of the Federal Constitution is binding only on the Federal |