Mr. Justice Harlan, dissenting:
I feel constrained by a sense of duty to express my nonconcurrence in the action of the court in this case.
Twining and Cornell were indicted for a criminal offense in a New Jersey court, and, having been found guilty by a jury, were sentenced, respectively, to imprisonment for six and [211 U.S. 78, 115] four years. The judgment of conviction was affirmed, first in the supreme court of the state, afterwards in the court of errors and appeals. The case was brought here for review, and the accused assigned for error that the mode of proceeding during the trial was such as to deny them a right secured by the Constitution of the United States, — namely, the right of an accused not to be compelled to testify against himself.
Upon this point the court, in the opinion just delivered, says: 'We have assumed, only for the purpose of discussion, that what was done in the case at bar was an infringement of the privilege against self-incrimination.' But the court takes care to add immediately: 'We do not intend, however, to lend any countenance to the truth of that assumption. The courts of New Jersey, in adopting the rule of law which is complained of here, have deemed it consistent with the privilege itself.'
It seems to me that the first inquiry on this writ of error should have been whether, upon the record before us, that which was actually done in the trial court amounted, in law, to a violation of that privilege. If the court was not prepared to hold, upon the record before it, that the privilege of immunity from self-incrimination had been actually violated, then, I submit, it ought not to have gone further and held it to be competent for a state, despite the granting of immunity from self-incrimination by the Federal Constitution, to compel one accused of crime to be a witness against himself. Whether a state is forbidden by the Constitution of the United States to violate the principle of immunity from self-incrimination is a question which it is clearly unnecessary to decide now, unless what was, in fact, done at the trial, was inconsistent with that immunity. But, although expressly declaring that it will not lend any countenance to the truth of the assumption that the proceedings below were in disregard of the maxim, Nemo tenetur seipsum accusare, and without saying whether there was, in fact, any substantial violation of the privilege [211 U.S. 78, 116] of immunity from self-incrimination, the court, for the purpose only of discussion, has entered upon the academic inquiry whether a state may, without violating the Constitution of the United States, compel one accused of crime to be a witness against himself, — a question of vast moment, one of such transcendent importance that a court ought not to decide it unless the record before it requires that course to be adopted. It is entirely consistent with the opinion just delivered that the court thinks that what is complained of as having been done at the trial of the accused was not, in law, an infringement of the privilege of immunity from self-incrimination. Yet, as stated, the court, in its wisdom, has forborne to say whether, in its judgment, that privilege was, in fact, violated in the state court, but simply, for the purpose of discussion, has proceeded on the assumption that the privilege was disregarded at the trial.
As a reason why it takes up first the question of the power of a state, so far as the Federal Constitution is concerned, to compel self-incrimination, the court says that if the right here asserted is not a Federal right that is an end of the case, and it must not go further. It would, I submit, have been more appropriate to say that, if no ground whatever existed, under the facts disclosed by the record, to contend that a Federal right had been violated, this court would be without authority to go further and express its opinion on an abstract question relating to the powers of the states under the Constitution.
What I have suggested as to the proper course of procedure in this court is supported by our action in Shoener v. Pennsylvania, 207 U.S. 188, 195, 52 S. L. ed. 163, 166, 28 Sup. Ct. Rep. 110. That was a criminal case, brought here from the supreme court of Pennsylvania, — the accused, who was convicted, insisting that the proceeding against him in the state court was in violation of the clause of the Federal Constitution declaring that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Upon looking into the record of that case we found that the accused had not been, previously, put in legal jeopardy for [211 U.S. 78, 117] the same offense. We went no further, but dismissed the writ of error, declining to consider the grave constitutional question pressed upon our attention, namely, whether the jeopardy clause of the Federal Constitution operated as a restraint upon the states in the execution of their criminal laws. But as a different course has been pursued in this case, I must of necessity consider the sufficiency of the grounds upon which the court bases its present judgment of affirmance.
The court, in its consideration of the relative rights of the United States and of the several states, holds, in this case, that, without violating the Constitution of the United States, a state can compel a person accused of crime to testify against himself. In my judgment, immunity from self-incrimination is protected against hostile state action, not only by that clause in the 14th Amendment declaring that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,' but by the clause, in the same Amendment, 'nor shall any state deprive any person of life, liberty, or property, without due process of law.' No argument is needed to support the proposition that, whether manifested by statute or by the final judgment of a court, state action, if liable to the objection that it abridges the privileges or immunities of national citizenship, must also be regarded as wanting in the due process of law enjoined by the 14th Amendment, when such state action substantially affects life, liberty, or property.
At the time of the adoption of the 14th Amendment immunity from self-incrimination was one of the privileges or immunities belonging to citizens, for the reason that the 5th Amendment, speaking in the name of the people of the United States, had declared, in terms, that no person 'shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law.' That Amendment, it was long ago decided, operated as a restriction on the exercise of powers by the United States or by Federal tribunals and agencies, but [211 U.S. 78, 118] did not impose any restraint upon a state or upon a state tribunal or agency. The original Amendments of the Constitution had their origin, as all know, in the belief of many patriotic statesmen in the states then composing the Union, that, under the Constitution, as originally submitted to the people for adoption or rejection, the national government might disregard the fundamental principles of Anglo-American liberty, for the maintenance of which our fathers took up arms against the mother country.
What, let me inquire, must then have been regarded as principles that were fundamental in the liberty of the citizen? Every student of English history will agree that, long before the adoption of the Constitution of the United States, certain principles affecting the life and liberty of the subject had become firmly established in the jurisprudence of England, and were deemed vital to the safety of freemen, and that among those principles was the one that no person accused of crime could be compelled to be a witness against himself. It is true that at one time in England the practice of 'questioning the prisoner' was enforced in star chamber proceedings. But we have the authority of Sir James Fitzjames Stephen, in his History of the Criminal Law of England, for saying that, soon after the Revolution of 1688, the practice of questioning the prisoner died out. Vol. 1, p. 440. The liberties of the English people had then been placed on a firmer foundation. Personal liberty was thenceforward jealously guarded. Certain it is, that when the present government of the United States was established it was the belief of all liberty-loving men in America that real, genuine freedom could not exist in any country that recognized the power of government to compel persons accused of crime to be witnesses against themselves. And it is not too much to say that the wise men who laid the foundations of our constitutional government would have stood aghast at the suggestion that immunity from self-incrimination was not among the essential, fundamental principles of English law. An able writer on English and American constitutional [211 U.S. 78, 119] law has recently well said: 'When the first Continental Congres of 1774 claimed to be entitled to the benefit, not only of the common law of England, but of such of the English statutes as existed at the time of the colonization, and which they had by experience found to be applicable to their several local and other circumstances, they simply declared the basic principle of English law that English subjects, going to a new and uninhabited country, carry with them, as their birthright, the laws of England existing when the colonization takes place. . . . English law, public and private, continued in force in all the states that became sovereign in 1776, each state declaring for itself the date from which it would recognize it.' Taylor, Science of Jurisprudence, 436, 437. It is indisputably established that, despite differences in forms of government, the people in the colonies were a unit as to certain leading principles, among which was the principle that the people were entitled to 'enjoy the rights and privileges of British-born subjects and the benefit of the common laws of England' (1 Story, Const. 163), and that (to use the words of the Continental Congress of 1774) 'by immigration to the colonies, the people by no means forfeited, surrendered, or lost any of those rights, but that they were then, and their descendants are now, entitled to the exercise and enjoyment of them as their local and other circumstances enable them to exercise and enjoy.'
Can there be any doubt that, at the opening of the War of Independence, the people of the colonies claimed as one of their birthrights the privilege of immunity from self-incrimination? This question can be answered in but one way. If, at the beginning of the Revolutionary War, any lawyer had claimed that one accused of crime could lawfully be compelled to testify against himself, he would have been laughed at by his brethren of the bar, both in England and America. In accordance with this universal view as to the rights of freemen, Virginia, in its convention of May, 1776, — in advance, be it observed, of the Declaration of Independence, — made a [211 U.S. 78, 120] declaration (drawn entirely by the celebrated George Mason) which set forth certain rights as pertaining to the people of that state and to their posterity 'as the basis and foundation of government.' Among those rights (that famous declaration distinctly announced) was the right of a person not to be compelled to give evidence against himself. Precisely the same declaration was made in Pennsylvania by its convention assembled at Philadelphia on the 15th of July 1776. Vermont, by its convention of 1777, said 'Nor can he [a man accused of crime] be compelled to give evidence against himself.' Maryland, in 1776, declared that 'no man ought to be compelled to give evidence against himself, in a court of criminal law.' Massachusetts, in its Constitution of 1780, provided that 'no subject shall be . . . compelled to accuse, or to furnish evidence against, himself.' The same provision was made by New Hampshire in its Constitution of 1784. And North Carolina as early as 1776 recognized the privilege of immunity from self-incrimination by declaring, in its Constitution, that a man 'shall not be compelled to give evidence against himself.' These explicit declarations in the Constitutions of leading colonies, before the submission of the national Constitution to the people for adoption or rejection, caused patriotic men, whose fidelity to American liberty no one doubted, to protest that that instrument was defective, in that it furnished no express guaranty against the violation by the national government of the personal rights that inhered in liberty. Nothing is made clearer by the history of our country than that the Constitution would not have been accepted by the requisite number of states, but for the understanding, on all sides, that it should be promptly amended so as to meet this objection. So, when the first Congress met, there was entire unanimity among statesmen of that day as to the 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 [211 U.S. 78, 121] fundamental in Anglo-American liberty. Hence the prompt incorporation into the supreme law of the land of the original Amendments. By the 5th Amendment, as already stated, it was expressly declared that no one should be compelled, in a criminal case, to be a witness against himself. Those Amendments being adopted by the nation, the people no longer feared that the United States or any Federal agency could exert power that was inconsistent with the fundamental rights recognized in those Amendments. It is to be observed that the Amendments introduced no principle not already familiar to liberty-loving people. They only put in the form of constitutional sanction, as barriers against oppression, the principles which the people of the colonies, with entire unanimity, deemed vital to their safety and freedom.
Still more. At the close of the late Civil War, which had seriously disturbed the foundations of our governmental system, the question arose whether provision should not be made by constitutional Amendments to secure against attack by the states the rights, privileges, and immunities which, by the original Amendments, had been placed beyond the power of the United States or any Federal agency to impair or destroy. Those rights, privileges, and immunities had not then, in terms, been guarded by the national Constitution against impairment or destruction by the states, although, before the adoption of the 14th Amendment, every state, without, perhaps, an exception, had, in some form, recognized, as part of its fundamental law, most, if not all, the rights and immunities mentioned in the original Amendments, among them immunity from self-incrimination. This is made clear by the opinion of the court in the present case. The court says: 'The exemption from testimonial compulsion, that is, from disclosure as a witness of evidence against one's self, forced by any form of legal process, is universal in American law, though there may be a difference 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 [211 U.S. 78, 122] 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.' Such was the situation, the court concedes, at the time the 14th Amendment was prepared and adopted. That Amendment declared that all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States, 'and of the state wherein they reside.' Momentous as this declaration was, in its political consequences, it was not deemed sufficient for the complete protection of the essential rights of national citizenship and personal liberty. Although the nation was restrained by existing constitutional provisions from encroaching upon those rights, yet, so far as the Federal Constitution was concerned, the states could, at that time, have dealt with those rights upon the basis entirely of their own Constitution and laws. It was therefore deemed necessary that the 14th Amendment should, in the name of the United States, forbid, as it expressly does, any state from making or enforcing a law that will abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law. The privileges and immunities mentioned in the original Amendments, and universally regarded as our heritage of liberty from the common law, were thus secured to every citizen of the United States, and placed beyond assault by any government, Federal or state; and due process of law, in all public proceedings affecting life, liberty, or property, was enjoined equally upon the nation and the states.
What, then, were the privileges and immunities of citizens of the United States which the 14th Amendment guarded against encroachment by the states? Whatever they were, that Amendment placed them beyond the power of any state to abridge. And what were the rights of life and liberty which the Amendment protected? Whatever they were, that Amendment [211 U.S. 78, 123] guarded them against any hostile state action that was wanting in due process of law.
I will not attempt to enumerate all the privileges and immunities which at that time belonged to citizens of the United States. But I confidently assert that among such privileges was the privilege of immunity from self-incrimination which the people of the United States, by adopting the 5th Amendment, had placed beyond Federal encroachment. Can such a view be deemed unreasonable in the face of the fact, frankly conceded in the opinion of the court, that, at common law, as well at the time of the formation of the Union and when the 14th Amendment was adopted, immunity from self-incrimination was a privilege 'universal in American law,' was everywhere deemed 'of great value, a protection to the innocent, though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions?' Is it conceivable that a privilege or immunity of such a priceless character, one expressly recognized in the supreme law of the land, one thoroughly interwoven with the history of Anglo-American liberty, was not in the mind of the country when it declared, in the 14th Amendment, that no state shall abridge the privileges or immunities of citizens of the United States? The 14th Amendment would have been disapproved by every state in the Union if it had saved or recognized the right of a state to compel one accused of crime, in its courts, to be a witness against himself. We state the matter in this way because it is common knowledge that the compelling of a person to criminate himself shocks or ought to shock the sense of right and justice to everyone who loves liberty. Indeed, this court has not hesitated thus to characterize the star chamber method of compelling an accused to be a witness against himself. In Boyd v. United States, 116 U.S. 616, 631, 633 S., 29 L. ed. 746, 751, 752, 6 Sup. Ct. Rep. 524, 533, 534, will be found some weighty observations by Mr. Justice Bradley, delivering the judgment of the court, as to the scope and meaning of the 4th and 5th Amendments. The court, speaking by that eminent jurist, said: [211 U.S. 78, 124] 'Now, it is elementary knowledge, that one cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property. And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; 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.' Again: 'We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the 'unreasonable searches and seizures' condemned in the 4th Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which, in criminal cases, is condemned in the 5th Amendment; and compelling a man 'in a criminal case to be a witness against himself,' which is condemned in the 5th Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the 4th Amendment. And we have been unable to perceive that the seizure of a man's private books and papers, to be used in evidence against him, is substantially different from compelling him to be a witness against himself.' These observations were referred to approvingly in Counselman v. Hitchcook, 142 U.S. 547, 580, 581 S., 35 L. ed. 1110, 1120, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195.
I am of opinion that, as immunity from self-incrimination was recognized in the 5th Amendment of the Constitution, and placed beyond violation by any Federal agency, it should be deemed one of the immunities of citizens of the United States which the 14th Amendment, in express terms, forbids any state from abridging, — as much so, for instance, as the right of free speech (1st Amend.) or the exemption from cruel or unusual punishments (8th Amend.), or the exemption from being put twice in jeopardy of life or limb for the same offense (5th Amend.), or the exemption from unreasonable searches [211 U.S. 78, 125] and seizures of one's person, house, papers, or effects (4th Amend.). Even if I were anxious or willing to cripple the operation of the 14th Amendment by strained or narrow interpretations, I should feel obliged to hold that, when that Amendment was adopted, all these last-mentioned exemptions were among the immunities belonging to citizens of the United States, which, after the adoption of the 14th Amendment, no state could impair or destroy. But, as I read the opinion of the court, it will follow from the general principles underlying it, or from the reasoning pursued therein, that the 14th Amendment would be no obstacle whatever in the way of a state law or practice under which, for instance, cruel or unusual punishments (such as the thumbscrew, or the rack, or burning at the stake) might be inflicted. So of a state law which infringed the right of free speech, or authorized unreasonable searches or seizures of persons, their houses, papers, or effects, or a state law under which one accused of crime could be put in jeopardy twice or oftener, at the pleasure of the prosecution, for the same offense.
It is my opinion, also, that the right to immunity from self-incrimination cannot be taken away by any state consistently with the clause of the 14th Amendment that relates to the deprivation by the state of life or liberty without due process of law. This view is supported by what Mr. Justice Miller said for the court in Davidson v. New Orleans, 96 U.S. 97, 101, 102 S., 24 L. ed. 616, 618, 619. That great judge, delivering the opinion in that case said: 'The prohibition against depriving the citizen or subject of his life, liberty, or property without due process of law, is not new in the constitutional history of the English race. It is not new in the constitutional history of this country, and it was not new in the Constitution of the United States when it became a part of the 14th Amendment, in the year 1866.' After observing that the equivalent of the phrase 'due process of law,' according to Lord Coke, is found in the words, 'law of the land,' in the Great Charter, in connection with the guaranties of the rights of the subject [211 U.S. 78, 126] against the oppression of the Crown, the court said: 'In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the oranization of the government, which were dictated by the jealousy of the states as further limitations upon the power of the Federal government, it is found in the fifth, in connection with other guaranties of personal rights of the same character.' Among these guaranties this court distinctly said was protection against being twice tried for the same offense, and protection 'against the accused being compelled, in a criminal case, to testify against himself.' Again, said the court: 'It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the Crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament, of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that 'no state shall deprive any person of life, liberty, or property without due process of law,' can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail or has no application where the invasion of private rights is affected under the forms of state legislation.'
I cannot support any judgment declaring that immunity from self-incrimination is not one of the privileges or immunities of national citizenship, nor a part of the liberty guaranteed by the 14th Amendment against hostile state action. The declaration of the court, in the opinion just delivered that immunity from self-incrimination is of great value, a protection to the innocent, and a safeguard against unfounded and tyrannical prosecutions, meets my cordial [211 U.S. 78, 127] approval. And the court having heretofore, upon the fullest consideration, declared that the compelling of a citizen of the United States, charged with crime, to be a witness against himself, was a rule abhorrent to the instincts of Americans, was in violation of universal American law, was contrary to the principles of free government, and a weapon of despotic power which could not abide the pure atmosphere of political liberty and personal freedom, I cannot agree that a state may make that rule a part of its law and binding on citizens, despite the Constitution of the United States. No former decision of this court requires that we should now so interpret the Constitution.