as not embraced by nor within the power of Congress to regulate interstate commerce, but, under the guise of regulating interstate commerce and as applied to this case it arbitrarily sanctions an illegal invasion of the personal liberty as well as the right of property of the defendant Adair," who was indicted for violating the Act of Congress of June 1, 1898 (30 Stat. 424, c. 370), concerning carriers engaged in interstate commerce. Section 10 of the act in question is in these words: "That any employer subject to the provisions of this act and any officer, agent or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization; or who shall require any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the proportion of the benefit arising from the employer's contribution to such fund; or who shall, after having discharged an employee, attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars." The specific charge

in the first count of the indictment was "that William Adair, agent and employee of said common carrier and employer, as aforesaid, in the district aforesaid, on and before the 15th day of October, 1906, did unlawfully discriminate against O. B. Coppage, employee as aforesaid, by then and there discharging said O. B. Coppage from such employment of said common carrier and employer, because of his membership in said labor organization, and thereby did unjustly discriminate against an employee of a common carrier and employer engaged in interstate commerce because of his membership in a labor organization, contrary to the forms of the statute in such cases made and provided."

In the course of its opinion the Court said: "The first inquiry is whether the part of the 10th section of the Act of 1898 upon which the first count of the indictment is based is repugnant to the Fifth Amendment of the Constitution declaring that no person shall be deprived of liberty or property without due process of law. In our opinion, that section, in the particular mentioned, is an invasion of the personal liberty, as well as the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one's own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or a detrimental to the common good. This court has said that 'in every well ordered society, charged with the duty of conserving the safety of its members, the right of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.' Jacobson v. Massachusetts, 197 U. S.

1129, and authorities there cited. It was the right of the defendant to prescribe the terms upon which the services of Coppage would be accepted, and it was the right of Coppage to become or not, as he chose, an employee of the railroad company upon the terms offered him. . The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee. In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land. These views find support in adjudged cases, some of which are cited in the margin."

§ 74. Twining v. New Jersey 26-Exemption from selfincrimination not a fundamental right of national citizenship. It is only necessary to refer to that part of the opinion in this notable case which settles the fact that the Fifth Amendment had no application to the question at issue, for the reason that while exemption from selfincrimination is secured by that Amendment, as against Federal action, it is not one of the "privileges and immunities of citizens of the United States" which, as a fundamental right of national citizenship, is protected against state action by the Fourteenth. On that subject the Court said: "The defendants contend, in the first place, that the exemption from self-incrimination is one of the privileges and immunities of citizens of the United States which the 14th Amendment forbids the states to abridge. It is not argued that the defendants are pro

26-211 U. S. 78.

.

tected by that part of the 5th Amendment which provides that 'no person shall be compelled in any criminal case to be a witness against himself,' for it is recognized by counsel that by a long line of decisions, the first ten Amendments are not operative on the state. Barron v. Baltimore, 7 Pet. 243; Spies v. Illinois, 123 U. S. 131; Brown v. New Jersey, 175 U. S. 172; Barrington v. Missouri, 205 U. S. 483. But it is argued that this privilege is one of the fundamental rights. of national citizenship, placed under national protection by the 14th Amendment, and it is specifically argued that the 'privileges and immunities of citizens of the United States,' protected against state action by that Amendment, include those fundamental personal rights which were protected against national action by the first eight Amendments; that this was the intention of the framers of the 14th Amendment, and that this part of it would otherwise have little or no meaning and effect." In rejecting that contention the Court said: "Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to a great majority, it can not be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption. has never been universally assented to since the days of Bentham, many doubt it today and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. See Wigmore, Ex. 2251. It has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law."

§ 75. U. S. ex rel. v. Delaware & H. Co.27-Due process and the commodities clause of the Hepburn act of June 29, 1906. The text of the commodities clause upon which these cases depended is as follows: "From and after May first, nineteen hundred and eight, it shall be unlawful for any railroad company to transport from any state, territory, or the District of Columbia to any other state, territory, or the District of Columbia, or to any foreign country, any article or commodity, other than lumber and the manufactured products thereof, manufactured, mined, or produced by it, or under its authority, or which it may own in whole or in which it may have any interest, direct or indirect, except such articles or commodities as may be necessary and intended for its use in the conduct of its business as a common carrier." In the words of the Court: "Except as we have said, in the particular that one of the corporations claimed that it was not a railroad company within the meaning of the commodities clause, they all defended substantially upon the ground that, when correctly interpreted, the commodities clause did not forbid the interstate commerce traffic in coal by them carried on. If it did, the clause was assailed as inherently repugnant to the Constitution, because the right to enact was not embraced within the authority conferred upon Congress to regulate commerce. In addition it was contended that even if, abstractly considered, the clause might be embraced within the grant of power to regulate commerce, nevertheless its provisions were in conflict with the due process clause of the 5th Amendment to the Constitution, because of the destructive effect which the enforcement of its provisions would produce on the rights of property which the corporations possessed and had long enjoyed under the sanction of valid state laws." After holding that when properly construed, "the statute was inherently within the power of Congress to enact as a regulation of commerce," the Court said: "We think it un

27-213 U. S. 366.