adopted by the court, speaking through Mr. | 577; Scott v. McNeal, 154 U. S. 34, 45, 38 Justice Curtis, in Den ex dem. Murray v. L. ed. 896, 901, 14 Sup. Ct. Rep. 1108). Hoboken Land & Improv. Co. 18 How. 272, "This court has never attempted to define 280, 15 L. ed. 372, 376 (approved in Halling- *with precision the words 'due process[102 er v. Davis, 146 U. S. 314, 320, 36 L. ed. of law.' . . It is sufficient to say that 986. 989, 13 Sup. Ct. Rep. 105; Holden v. there are certain immutable principles of Hardy, 169 U. S. 366, 390, 42 L. ed. 780, justice which inhere in the very idea of free 790, 18 Sup. Ct. Rep. 383; but see Lowe v. government which no member of the Union Kansas, 163 U. S. 81, 85, 41′ L. ed. 78, 79, may disregard." Holden v. Hardy, 169 U. 16 Sup. Ct. Rep. 1031). Of course, the part of S. 366, 389, 42 L. ed. 780, 790, 18 Sup. Ct. 101]the Constitution then *before the court Rep. 383, 387. "The same words refer to was the 5th Amendment. If any different that law of the land in each state, which meaning of the same words, as they are used derives its authority from the inherent and in the 14th Amendment, can be conceived, reserved powers of the state, exerted within none has yet appeared in judicial decision. the limits of those fundamental principles "A process of law," said Mr. Justice Mat- of liberty and justice which lie at the base thews, commenting on this statement of Mr. of all our civil and political institutions." Justice Curtis, "which is not otherwise for- Re Kemmler, 136 U. S. 436, 448, 34 L. ed. bidden, must be taken to be due process of 519, 524, 10 Sup. Ct. Rep. 930, 934. "The law, if it can show the sanction of settled limit of the full control which the state has usage both in England and in this country." in the proceedings of its courts, both in civil Hurtado v. California, 110 U. S. 516, 528, 28 and criminal cases, is subject only to the L. ed. 232, 236, 4 Sup. Ct. Rep. 111, 117, 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 L. ed. 965, 969, 24 Sup. Ct. Rep. 650, 652.

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 practised 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 ju- | risprudence 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 L. ed. 780, 789, 18 Sup. Ct. Rep. 383; Brown v. New Jersey, 175 U. S. 172, 175, 44 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 L. ed. 232, 235, 4 Sup. Ct. Rep. 111, 292: Leeper v. Texas, 139 U. S. 462, 468, 35 L. ed. 225, 227, 11 Sup. Ct. Rep.

The question under consideration may first be tested by the application of these settled doctrines of this court. If the statement of Mr. Justice Curtis, as elucidated in Hurtado • v. California, is to be taken literally, that alone might almost be decisive. For nothing is more certain, in point of historical fact, than that the practice of compulsory self-incrimination in the courts and elsewhere existed for four hundred years after the granting of Magna Charta, continued throughout the reign of Charles I. (though then beginning to be seriously questioned), gained at least some foothold among the early colonists of this country, and was not entirely omitted at trials in England until the eighteenth century. Wigmore, Ev. § 2250 (see for the Colonies, note 108); Hallam's Constitutional History of England, chapter 8. Widdleton's American ed. vol. 2, p. 37 (describing the criminal jurisdiction of the court of star chamber); Bentham's Rationale of Judicial Evidence, book 9, chap. 3, § 4.

Sir James Fitzjames Stephen, in his studies of the reports of English trials for crime, has thrown much light on the existence of the practice of questioning persons accused of *crime, and its gradual decay. He[103 considers, first, a group of trials which occurred between 1554 and 1637. Speaking of the trial before the jury, he says:

"The prisoner, in nearly every instance, asked, as a favor, that he might not be overpowered by the eloquence of counsel de[nouncing him in a set speech, but, in consid

eration of the weakness of his memory, | A practice in bankruptcy has existed from might be allowed to answer separately to ancient times, and still exists, which would the different matters which might be alleged not be constitutionally possible under our against him. This was usually granted, and national bankruptcy law or under the insolthe result was that the trial became a series vency law of any state whose Constitution of excited altercations between the prisoner contains the customary prohibition of comand the different counsel opposed to him. pulsory self-incrimination. The bankruptcy Every statement of counsel operated as a act of 1 James I., chap. 15, § 7 (1603), question to the prisoner, and indeed they authorized the commissioners of bankruptcy were constantly thrown into the form of to compel, by commitment, if necessary, the questions, the prisoner either admitting or bankrupt to submit to an examination touchdenying or explaining what was alleged ing his estate and dealings. The provision against him. The result was that, during was continued in the subsequent acts, and in the period in question, the examination of 1820, in Ex parte Cossens, Buck, Bankr. Cas. the prisoner, which is at present scupulous- 531, 540, Lord Eldon, in the course of a disly and I think even pedantically avoided, cussion of the right to examine a bankrupt, was the very essence of the trial, and his held that he could be compelled to disclose answers regulated the production of the evi- his violations of law in respect of his trade dence; the whole trial, in fact, was a long and estate, and, while recognizing the generargument between the prisoner and counsel al principle of English law, that no one for the Crown, in which they questioned each could be compelled to incriminate himself, other and grappled with each other's argu- said: "I have always understood the propoments with the utmost eagerness and close-sition to admit of a qualification with reness of reasoning." Stephen, History of spect to the jurisdiction in bankruptcy.” the Crim. Law, 325.

The act of 6 Geo. IV., chap. 16, § 36 (1825), This description of the questioning of the authorized the compulsory examination of accused and the meeting of contending ar- the bankrupt "touching all matters relatguments finds curious confirmation in the ing either to his trade, dealings, or estate, or report of the trial, in 1637, of Ann Hutchin- which may tend to disclose any *secret [105 son (which resulted in banishment) for hold-grant, conveyance, or concealment of his ing and encouraging certain theological lands." The act of 12 & 13 Vict. chap. 106, views which were not approved by the ma- § 117 (1849), contained the same provision. jority of the early Massachusetts rulers. Construing these acts, it was held that the 1 Hart's American History Told by Con- bankrupt must answer, though his answer temporaries, 382. The trial was presided might furnish evidence of his crime, and over and the examination very largely con- even if an indictment were pending against ducted by Governor Winthrop, who had been, him; and that the evidence thus compelled for some years before his emigration, an ac- was admissible on his trial for crime. Re tive lawyer and admitted to the Inner Tem- Heath, 2 Deacon & C. 214; Re Smith, 2 Deaple. An examination of the report of this con & C. 230, 235; Reg. v. Scott, Dears. trial will show that he was not aware of & B. C. C. 47; Reg. v. Cross, 7 Cox, C. C. any privilege against self-incrimination or 226; Queen v. Widdop, L. R. 2 C. C. 3. The 104] conscious of *any duty to respect it. act of 46 & 47 Vict. chap. 52, § 17 (1883), Stephen says of the trials between 1640 and which we understand to be (with some 1660 (Id. 358): "In some cases the prisoner amendment, not material here) the present was questioned, but never to any greater ex-law, passed after the decisions cited, expresstent than that which it is practically impos-ly provided that the examination shall be sible to avoid when a man has to defend him- taken in writing and signed by the debtor, self without counsel. When so questioned the prisoners usually refused to answer." He further says (Id. 440): "Soon after the Revolution of 1688 the practice of questioning the prisoner died out." But committing magistrates were authorized to take the examination of persons suspected, which, if not under oath, was admissible against him on his trial, until by the 11 & 12 Vict. chap. 2, the prisoner was given the option whether he would speak, and warned that what he said might be used against him. But even now there seems to be a very well-recognized and important exception in English law to the rule that no person can be compelled to furnish evidence against himself.

"and may thereafter be used in evidence against him." It has since been held that other evidence of his testimony than that written and signed by him may be used. Queen v. Erdheim [1896] 2 Q. B. 260, and see King v. Pike [1902] 1 K. B. 552.† It is to be observed that not until 1883 did Parliament, which has an unlimited legislative power, expressly provide that the evidence compelled from the bankrupt could be used in proof of an indictment against

In certain offenses, which may be genercompelled from a bankrupt cannot be used ally described as embezzlements, the evidence against him. 24 & 25 Vict. chap. 96, § 85; 53 & 54 Vict. chap. 71, § 27.

him. The rule had been previously firmly upon the expediency, wisdom, or justice of established by judicial decisions upon stat the laws of the states as declared by their utes simply authorizing a compulsory ex- courts, but only to determine their conform amination. If the rule had been thought to ity with the Federal Constitution and the be in conflict with "the law of the land" paramount laws enacted pursuant to it. Unof Magna Charta, "a sacred text, the near- der the guise of interpreting the Constituest approach to an irrepealable ‘fundamental tion we must take care that we do[107 statute' that England has ever had" (1 not import into the discussion our own perPollock & M. History of English Law, 152), sonal views of what would be wise, just, and it is inconceivable that such a consideration fitting rules of government to be adopted by would not have received some attention from a free people, and confound them with concounsel and judges. We think it is mani- stitutional limitations. The question before ⚫ fest, from this review of the origin, growth, us is the meaning of a constitutional proextent, and limits of the exemption from vision which forbids the states to deny to compulsory self-incrimination in the English any person due process of law. In the delaw, that it is not regarded as a part of the cision of this question we have the authority law of the land of Magna Charta or the due to take into account only those fundamen 106] process of law, which has been deemed tal rights which are expressed in that proan equivalent expression, but, on the con- vision; not the rights fundamental in citi trary, is regarded as separate from and inde- zenship, state or national, for they are sependent of due process. It came into exist-cured otherwise; but the rights fundamental ence not as an essential part of due process, but as a wise and beneficent rule of evidence developed in the course of judicial decision. This is a potent argument when it is remembered that the phrase was borrowed from English law, and that to that law we must look at least for its primary meaning. 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 ap proaching 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 ap pointed 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 gov-dreds of years after Magna Charta (1215), ernment, 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 L. ed. 232, 235, 4 Sup. Ct. Rep. 111, 292. We are not invested with the jurisdiction to pass of William and Mary (1689) is likewise

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 ques tion 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 constitu tional law. Did those who then were for mulating 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 hun

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 it, is silent upon the practice[108 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

ous amendments and a declaration of rights which the convention declared could not be violated and were consistent with the Constitution. One of these rights was that "no person ought to be taken, imprisoned or deprived of his freehold, or be exiled or deprived of his privileges, franchises, life, liberty, or property but by due process of law;" and another was that, "in all criminal prosecutions, the accused ... should not be compelled to give evidence against himself." North Carolina and Rhode Island were the last to ratify, each proposing a large number of amendments, includ

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-incrimina tion 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 lawing the provision that no man "can be which is its equivalent.

compelled to give evidence against himself;"
and North Carolina, that "no freeman ought
to be . . deprived of his life, liberty,
or property but by the law of the land;"
and Rhode Island, that "no freeman ought
to be
deprived of his life, liberty,
or property but by the trial by jury, or by
the law of the land."

We pass by the meager records of the early colonial time, so far as they have come to our attention, as affording light too uncertain for guidance. See Wigmore, Ev. § 2250, note 108; 2 Hening's Stat. at L. 422 (1676) Va.; 1 Winthrop's History of New England, 47, provincial act, 4 Wm. & Mary, Ancient Charters, Massachusetts, Thus it appears that four only of the 214. Though it is worthy of note that nei- thirteen original states insisted upon inther the declaration of rights of the Stamp corporating the privilege in the ConstituAct Congress (1765) nor the declaration tion, and they separately and simultaneousof rights of the Continental Congress ly with the requirement of due process of (1774) nor the ordinance for the govern-law, and that three states proposing amendment of the Northwestern territory includ ments were silent upon this subject. It is ed the privilege in their enumeration of worthy of note that two of these four fundamental rights. states did not incorporate the privilege in their own Constitutions, where it would have had a much wider field of usefulness, until many years after. New York *in[110 1821 and Rhode Island in 1842 (its first Constitution). This survey does not tend to show that it was then in this country the universal or even general belief that the privilege ranked among the fundamental and inalienable rights of mankind; and what is more important here, it affirmatively shows that the privilege was not conceived to be inherent in due process of law, but, on the other hand, a right separate, independent, and outside of due process. Congress, in submitting the Amendments to the several states, treated the two rights as exclusive of each other. Such also has been the view of the states in framing their own Constitutions, for in every case, except in New Jersey and Iowa, where the due process clause or its equivalent is included. it has been thought necessary to include separately the privilege clause. Nor have we been referred to any decision of a state court save one (State v. Height, 117 Iowa, 650, 59 L.R.A. 437, 94 Am. St. Rep. 323, 91 N. W. 935), where the exemption has been held to be required by due process of law. The inference is irresistible that it has been the opinion of constitution makers that the privilege, if fundamental in any sense, is not fundamental in due process of

But the history of the incorporation of the privilege in an amendment to the national Constitution is full of significance in this connection. Five states-Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut-ratified the Constitution with out proposing amendments. Massachusetts then followed with a ratification, accompanied by a recommendation of nine amendments, none of which referred to the privilege; Maryland with a ratification without proposing amendments; South Carolina with a ratification accompanied by a recommendation of four amendments, none of which 109] referred to the privilege, and New Hampshire with a ratification accompanied by a recommendation of twelve amendments, none of which referred to the privilege. The nine states requisite to put the Constitution in operation ratified it without a suggestion of incorporating this privilege. Virginia was the tenth state to ratify, proposing, by separate resolution, an elaborate bill of rights under twenty heads, and, in addition, twenty amendments to the body of the Constitution. Among the rights enumerated as "essential and inalienable" is that no man "can be compelled to give evidence against himself," and "no freeman ought to be deprived of his life, liberty, or property but by the law of the land." New York ratified with a proposal of numer

law, nor an essential part of it. We be- | Bolln v. Nebraska, 176 U. S. 83, 44 L. ed. • lieve that this opinion is proved to have 382, 20 Sup. Ct. Rep. 287; Maxwell v. Dow, been correct by every historical test by 176 U. S. 581, 44 L. ed. 597, 20 Sup. Ct. which the meaning of the phrase can be Rep. 448, 494; Simon v. Craft, 182 U. s. tried. 427, 45 L. ed. 1165, 21 Sup. Ct. Rep. 836; West v. Louisiana, 194 U. S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep. 650; Marvin v. Trout, 199 U. S. 212, 50 L. ed. 157, 26 Sup. Ct. Rep. 31; Rogers v. Peck, 199 U. S. 425, 50 L. ed. 256, 26 Sup. Ct. Rep. 87; Howard v. Kentucky, 200 U. S. 164, 50 L. ed. 421, 26 Sup. Ct. Rep. 189; Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560; Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366.