Mr. Justice Moody, Lately Attorney- General doctrine was fully applied despite the fact that similar statutes had been otherwise construed in Illinois and in Justice Moody's own state of Massachu setts. He said there was no violation of the treaty between the United States and the Kingdom of Italy affording to Italian subjects here domiciled all the direct protection and security afforded our own people, by reason of the fact that non-resident alien relatives of a deceased Italian citizen were denied by a state court a right of civil action when the right is given to native resident rela tives. And even when vigorously dissent ing from the Court's conclusion that the Employers' Liability Act was unconsti tutional (1908), Justice Moody distinctly recognized the supremacy respectively of state and nation within their different spheres, and the allotment between them of the powers usually exercised by gov ernments. He agreed with all of his brethren of the bench that Congress cannot regulate purely internal com merce of the states. In the criminal case of Twining v. New Jersey (heretofore mentioned) the Justice probably rises to the height of his present intellectual evolution. He answers in masterly manner the argu ment of the able and eminent counsel for the prisoners, and lays especial emphasis on the perils of forced con struction of the federal Constitution in restraint of the power of the states. Twining and one Cornell had been con victed of statutory crime by a New Jersey court. They had not testified in their own behalf. In other states (Mary land, for example, Code, art. 35, sec. 4), no presumption would have been created against them by their silence, and a judge could not have commented on their failure to testify. But the trial court in New Jersey, in conformity with the well-settled state law, had instructed
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the jury that they might draw an un favorable inference therefrom against the prisoners. The traversers, suing out a writ of error from the Supreme Court of the United States to the New Jersey Court of Errors and Appeals, com plained of the instruction as a violation of the Fourteenth Amendment to the federal Constitution. They alleged an abridgment of the privileges of citi zens of the United States, and also a deprivation of their liberty without due process of law. Both contentions were overruled and the conviction in the state court was affirmed, the Supreem Court holding that exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the federal Constitution. The Justice declares in the course of his judgment that: "The power of the people of the states ought not to be fettered, their sense of responsibility lessened and their capacity for sober and restrained self-government weak ened by forced construction of the fed eral Constitution. If the people of New Jersey are not content with the law as declared in repeated decisions of their courts, the remedy is in their own hands." Mr. Moody was appointed to the fed eral Supreme Court from the Cabinet of an Executive not keenly alive to the distribution of powers between the United States and the component com monwealths. Nor was this Executive highly sensitive to the Constitutional division and separate apportionment of functions, executive, legislative and judi cial. If the intimate ' association with such a President suggested a doubt as to the wisdom of Mr. Moody's ap pointment, his record on the bench dispels it. That record, like the record of other distinguished jurists, demonstrates the ability of an able
