Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-11-10
A VIGOROUS DISSENT
JUSTICE HARLAN OPPOSES ST.
PREME COURT RULING.
Declares That the Principle Emu
merated Is Abhorrent to the
Interests Of Americans.

The Supreme Court of the United States
yesterday afternoon upheld the court of
appeals OF Monmouth county. N. J.. by
confirming the conviction of Albert C.
Twining and David c. Cornell of the Mon
mouth Safe Deposit and Trust Company.
This action was briefly announced In The
Star yesterday. The crime of which the
two officials were convicted was deceiving
a state examiner as to the application
of funds for the purchase of bank stock.
The appeal was based on the claim that
the charge of the judge to the jury that
convicted them in referring to the failure
of the prisoners to take the stand and
testify in their own behalf as an evidence
of guilt was denial of the rights guar
anteed by the Constitution against being
compelled to testify against themselves.
Justice Moody's Reasoning.
In The course of the opinion delivered
by Justice Moody dealt with the claim
that Twining and Cornell had been de-
prived of their constitutional rights of
due process of law. and on that point he
said:
Much might be said in favor of the
view that the privilege was guaranteed
against such impairment as a privilege
and immunity Of national citizenship, but
the decisions of this court have fore
closed that view. There seems to be no
reason whatever for straining the mean
ing 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 to the satisfac-
ton OF their own people up to the adop-
ton of the fourteenth amendment. No
reason is presented why they can not
continue to do so.
1.-THE power of their people ought not
to be fettered, their sense of responsibility
lessened and their capacity for sober, re-
strained self-government weakened by
forced construction Of the federal Con-
stitution. If the people of New Jersey
are not content with the lay as declared
in repeated decisions OF their courts the
remedy Is in their hands. They may, II
they SO choose. alter it by legislation, as
the people In Maine did when the courts
Of that state made the same ruling"
Justice Harlan's Strong Dissent.
Justice Harian's dissent was couched in
very strong language. He declared that II
the principle enumerated In the control
ling opinion was correct there was moth
ing in the federal Constitution that would
prevent a state government from infiict-
ing punishment by means Of the thumb
screw or the rack, and he said he was
convinced that II this ruling was to pre-
vail 1t would be impossible to upset any
such law providing for such punishment.
He announced 1t to be his judgment
that immunity from self differentiation
was protected against hostile state action
not only by the clause Of the fourteenth
amendment prohibiting the abridgement
Of privileges and immunities of citizens of
the United States by states. but by the
other clause In the same amendment
guaranteeing due process of law" to all
citizens.
II cannot" said Justice Harlan, Sup
port any judgment declaring that immu
nifty from Standardization is not one of
the privileges or immunities Of national
citizenship now part of the liberty guar
anteed by the fourteenth amendment. !
will never agree that the compelling Of q
citizen of the United States when charg
ed with crime to be a witness against
himself-a principle which this court mas
said was abhorrent to the instincts of
Americans. and contrary to the princi-
pies of free govcrnment-may be made
the law of a state, enforceable against
citizens of the United States. No de-
cision heretofore rendered requires, I
suhmit-that this court should now SO ad-
judge; nor need such judgment be now
rendered If the court is of opinion that
what occurred in the state court did not
in law violate the privileges Of immunity
from REORGANIZATION