Mr. John G. Johnson and Mr. Marshall Van Winkle, with whom Mr. William W. Gooch, Mr. Herbert C. Smyth and Mr. Frederic C. Scofield were on the brief, for plaintiffs in error: Comment by the court upon the failure of the accused to testify was a violation of the fundamental rights of the plaintiff in error and was a denial of due process of law as guaranteed by the Fourteenth Amendment. In each case the primary inquiry must be as to what is the system of law of the particular State, and whether, according to that law, as adjudged by its courts, the procedure in question is "due process;" and the 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's Fourteenth Amendment, p. 72, citing Kennard v. Louisiana, 92 U.S. 480, 481; Caldwell v. Texas, 137 U.S. 692, 698; Leeper v. Texas, 139 U.S. 462, 469; McNulty v. California, 149 U.S. 645, 647. 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 Fourteenth Amendment. Guthrie, p. 73, and cases cited. The State of New Jersey alone permits 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; State v. Wines, 65 N.J.L. 31; State v. Banusik, 64 Atl. Rep. 994. In this connection the decisions of courts of States in the same class with New Jersey (as to statutory provisions on this subject) should be considered. See, therefore, People v. Tyler, 36 Cal. 522; Price v. Commonwealth, 77 Virginia (Ct. of App.), 393; State v. Howard, 35 S.C. 202; Bird v. Georgia, 50 Ga. 585, 589. See also, for statutes and decisions of the several States on this subject, Wigmore on Evidence, Vol. 3, § 2272, n. 2, and Vol. 1, § 488. Other cases are: Wilson v. United States, 149 U.S. 60; McKnight v. United States, 115 F. 982, 983; Cooper v. State, 86 Ala. 610; People v. Cuff, 122 Cal. 589; People v. Brown, 53 Cal. 66; People v. Streuber, 121 Cal. 43; Quinn v. People, 123 Ill. 345; Baker v. People, 105 Ill. 452; Austin v. People, 102 Ill. 261; Angelo v. People, 96 Ill. 209; Miller v. People, 216 Ill. 309; Wynehamer v. People, 13 N.Y. 444, 447; Ruloff v. People, 45 N.Y. 213, 225; People v. Courtney, 94 N.Y. 492. Comment by the court upon the failure of the accused to testify was a denial to the plaintiff in error of his privilege and immunity as a citizen of the United States guaranteed by the Fourteenth Amendment, in that he was thus compelled to be a witness against himself in violation of the Fifth Amendment. Whether or not the Fourteenth Amendment has extended the application of the principle of the Fifth Amendment to the several States is still an open question undecided by this court. Davidson v. New Orleans, 96 U.S. 104; The Slaughter-House Cases, 16 Wall. 36; Barrington v. Missouri, 205 U.S. 486. 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 question, and adequately argued. Guthrie, p. 62. That this privilege is a fundamental right is shown by the history of the provision contained in the Fifth Amendment. Bram v. United States, 168 U.S. 543 et seq.; 1 Stephen's History of the Criminal Law of England, 440; Story on the Constitution (5th ed.), 1782 and 1788; 2 Story's Commentaries on the Constitution (5th ed.), 697; Cooley's Const. Lim. (6th ed.), 375; Counselman v. Hitchcock, 142 U.S. 563. See Boyd v. United States, 116 U.S. 616, holding unconstitutional a statute making the failure of a witness to attend and produce evidence against himself, a confession of guilt. Here a failure to take the stand is made an admission of guilt. The compulsion prohibited by the Fifth Amendment is not alone physical or mental duress. United States v. Bell, 81 F. 837. No statute, rule or regulation, or act of administration in the given case, can be constitutional, which does not in some way protect the right to be silent if the citizen chooses to be silent. United States v. Bell, supra. And as to requiring production of documents which would have been self-incriminating, see McKnight v. United States, 115 F. 981. When a State violates a fundamental right of a citizen of the United States, this court will interfere; and the laws of a State come under the prohibition of the Fourteenth Amendment when they infringe fundamental rights. Ballard v. Hunter, 204 U.S. 262. 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 Federal Constitution. Brown v. New Jersey, 175 U.S. 175; West v. Louisiana, 194 U.S. 263; Rogers v. Peck, 199 U.S. 425; Gibson v. Mississippi, 162 U.S. 563. Due process implies, at least, conformity to natural and inherent principles of justice. Holden v. Hardy, 169 U.S. 366. In the Fourteenth Amendment, by parity of reasoning, it refers to that law of the land, in 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 and political institutions, and the greatest 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. The purpose of that 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 Fifth Amendment against similar legislation by Congress. Tonawanda v. Lyon, 181 U.S. 392; Guthrie, 2, 3; Holden v. Hardy, 169 U.S. 366, 389; O'Neil v. Vermont, 144 U.S. 323, 370. Mr. Robert H. McCarter, Attorney General of the State of New Jersey, and Mr. H.M. Nevius, with whom Mr. Nelson B. Gaskill was on the brief, for defendant in error: If the court shall be of the opinion that the charge of the trial court had the effect of violating the privilege against compulsory self-crimination, we answer to the first assignment that it discloses no fundamental right or immunity guaranteed to the plaintiffs in error as citizens of the United States by the Fourteenth Amendment which has been abridged by the decision of the court of last resort of New Jersey. While it is unquestionably true that there has always been in existence in this country a general government over and among the States, the sole rights secured by constitutional provision prior to the formation of the present Federal Government were those of the citizens of the several States. In these several constitutions, as in that of New Jersey, the inhabitants of each State declared the limitations which were deemed essential to the protection and preservation of their cherished rights. The powers of the States differ in this respect from the powers of the general government, because, representing the people of the State, each state government exercises those powers against which it is not restrained by the limitations of the state constitution; while the general government, being a government of delegated powers, exercises only those powers which are contained in the provisions of the Federal Constitution. In the rights and restrictions under the state constitutions, therefore, rest the rights of the citizens of the States as such. When a Federal Government was later formed, a Federal citizenship first came into being, not dependent upon the state constitutions, and not equipped with common-law rights, but dependent upon the essential requisites and provisions of the instrument, the Federal Constitution, which called it into being. 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 rights of a citizen of the United States are not necessarily those of a citizen of any of the individual States. The duty of protection to a citizen of a State in his privileges and immunities is not by the Fourteenth Amendment devolved upon the general government, but remains with the State itself where it naturally and properly belongs. Story on the Constitution (5th ed.), par. 1936. See also Kemmler v. United States, 136 U.S. 448; Duncan v. Missouri, 152 U.S. 382; Wadleigh v. Newhall, 136 F. 946. There is in the Federal Constitution, the source of the rights and immunities of the plaintiffs in error as citizens of the United States, no guarantee of a privilege against compulsory self-crimination which is binding upon the courts of New Jersey, or the abridgment of which by the state courts would give corrective jurisdiction in the Federal Supreme Court. The only basis for a contrary claim is found in the Fifth Amendment which, however, is binding only on the Federal Government and its agencies, and is not a limitation upon any of the States. The rights or immunities which it creates, therefore, are rights and immunities against Federal, but not against state interference or abridgment. See Barron v. Baltimore, 7 Pet. 243, which was reviewed and followed in Twitchell v. The Commonwealth, 7 Wall. 321; Walker v. Sauvinet, 92 U.S. 90; Hallinger v. Davis, 146 U.S. 314; Holden v. Hardy, 169 U.S. 366; Munn v. Illinois, 94 U.S. 113; Kelly v. Pittsburg, 104 U.S. 78; Nashville v. Alabama, 128 U.S. 96; Davis v. Texas, 139 U.S. 651. As plaintiffs in error make no claim to this court as citizens of New Jersey, whatever rights and immunities have been abridged are not a matter of concern to this court unless they can be shown to have had their origin in the Constitution of the United States, or its Amendments, or the necessary requisites thereof. The only right against compulsory self-criminations guaranteed to citizens of the United States is a right and immunity operative in Federal courts, or in any sphere of Federal influence, but there is no such right guaranteed as such to citizens of the United States by the Constitution of the United States or its Amendments, which the State of New Jersey is obliged to consider. If it be true that the Fourteenth Amendment added to the civil rights of citizens of the United States, the civil rights peculiar to the other citizens of any State in which they might choose to reside, and so far abolished the distinction between citizenship of a State and of the United States, then it is only necessary to inquire into the status of the rights and immunities with reference to the privilege against self-crimination enjoyed by the citizens of the State of New Jersey at the time of the promulgation of the Fourteenth Amendment. This Amendment created no new civil rights. It merely extended the operation of existing rights, and furnished additional protection to such rights. Barbier v. Connolly, 113 U.S. 27; United States v. Sanges, 48 F. 78; Minor v. Happersett, 21 Wall. 171; United States v. Cruikshank, 92 U.S. 542. If, therefore, there was added to the civil rights and immunities guaranteed to the plaintiffs in error as citizens of the United States, any additional immunities or rights by virtue of the Fourteenth Amendment, the addition comprises only those rights and immunities which were common to all other citizens of New Jersey in July, 1868, when the Amendment went into effect. And citizens of the United States, resident in New Jersey, could have had at that time no greater rights or immunities than the other citizens of New Jersey enjoyed. To a citizen of the United States there was at the time of the adoption of the Fourteenth Amendment, no guaranteed privilege or immunity with reference to an alleged error complained of which the courts of New Jersey were bound to recognize, and in the courts of New Jersey as to all persons under their jurisdiction, there was no right or immunity against the submission by a trial court to a jury of the question and matter submitted in this case. The courts of New Jersey had established at that time the principle of privilege against self-crimination, and had also established as a parallel and not as a contradictory principle, that the question of inference to be raised by the failure to deny a direct criminal accusation when opportunity offered, might properly be submitted to a jury. Plaintiffs in error cannot show the existence of any fundamental right or immunity against compulsory self-crimination, guaranteed by the Fourteenth Amendment, which has been abridged by the courts of New Jersey, as alleged by the pleader in his first assignment of error. On the contrary, the charge in this case was in accordance with the legal recognition of the right of self-crimination as that right existed in New Jersey from the very beginning, and which has not been altered or attempted to be altered since the passage and adoption of the Fourteenth Amendment. Plaintiffs in error have no just complaint on the basis of any want of due process of law. The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. Each State prescribes its own modes of judicial proceedings. Hallinger v. Davis, 146 U.S. 321, citing Missouri v. Lewis, 101 U.S. 51, and see also Holden v. Hardy, 169 U.S. 366, 389; Hurtado v. California, 110 U.S. 535; Walker v. Sauvinet, 92 U.S. 92. The Fourteenth Amendment legitimately operates to extend to the citizens and residents of the States the same protection against arbitrary state legislation affecting life, liberty and property, as is offered by the Fifth Amendment against similar legislation by Congress. But the Federal courts ought not to interfere when what is complained of amounts to the enforcement of the laws of a State applicable to all persons in like circumstances and conditions, and the Federal courts should not interfere unless there is some abuse of law amounting to confiscation of property or deprivation of personal rights. 9 Fed. Stat. Ann., 427.