by virtue of an act of Georgia of 1764, because under that act their auswers could not be read in evidence against them in any criminal case whatever, being excluded by the Constitution.

The

In Ex parte Rowe, 7 Cal. 184, in 1857, the Constitution of California of 1849 provided (art. 1, § 8) that no person shall be compelled in any criminal case to be a witness against himself." Rowe had been.committed for refusing to answer, under an order of the court, certain questions propounded to him by the grand jury in an examination concerning the disposition of certain moneys taken from the State treasury, on the ground that his answer would disgrace him, and would tend to subject him to a prosecution for felony. Supreme Court of California, on habeas corpus, considered the construction and constitutionality of the fifth section of an act passed April 16, 1855, which provided that "the testimony given by such witness shall in no instance be used against himself in any criminal prosecution." The court held that the provision of the Constitution was intended to protect the witness from being compelled to testify against himself in regard to a criminal offense; that he could not be a witness against himself unless his testimony could be used against him in his own case, and that the statute gave the witness that protection which was contemplated by the Constitution, and therefore he was bound to

answer.

In 1860, in Wilkins v. Malone, 14 Ind. 153, the Constitution of Indiana of 1851, in its Bill of Rights (art. 1, § 14), had declared that "no person in any criminal prosecution shall be compelled to testify against himself." In a suit brought by Malone to recover onja promissory note, the defense pleaded usury and offered to examine Malone as a witness to prove the usury. The plaintiff objected on the ground that such examination would criminate himself, and the objection was sustained. On appeal to the Supreme Court of Indiana by the defendants, it was held that the constitutional provision protected a person from a compulsory disclosure in a civil suit of facts tending to criminate him, whenever his answer could be given in evidence against him in a subsequent criminal prosecution. The court referred to State v. Quarles, supra, and Higdon v. Heard, supra, and to the statute of Indiana (1 Rev. Stat., p. 345, § 8), which provided that a person charged with taking illegal interest might be required to answer, but that his answer should not be used against him in any criminal prosecution for usury. The court held that by this statute the constitutional privilege of the party was fully secured to him, although he might disclose circumstances which might lead to a criminal prosecution.

In 1861, in the Court of Appeals of New York (People v. Kelly, 24 N. Y. 74), the Constitution of New York of 1846 declared that no person shall "be compelled in any criminal case to be a witness against himself." In that case one Hackley, as a witness before the grand jury on a complaint against certain aldermen for feloniously receiving a gift of money under an agreement that their votes should be influenced thereby in a matter then pending before them in their official capacity, in answer to a question put to him as to what he had done with certain money which he had received, said that any answer which he could give to the question would disgrace him, and would have a tendency to accuse him of a crime, and he demurred to the question. Having been ordered by the Court of General Sessions of the Peace to answer it, he still refused and was adjudged guilty of contempt and put in prison. On a writ of habeas corpus he was remanded into custody by the Supreme Court, and he appealed to the Court of Appeals.

By chapter 539 of the Laws of New York of 1853 it was enacted, by section 2, that section 14 should be

added to article 2, title 4, chapter 1, part 4, Revised Statutes. The act provided that the giving of money to any member of the common council of a city, with intent to influence his action upon any matter which might be brought before him in his official capacity, should be an offense punishable by fine or imprisonment in a State prison or both, and section 14 provided that every person offending against the statute should 'be a competent witness against any other person so offending," and might be compelled to give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, "but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying." A similar provision was contained in chapter 446 of the Laws of 1857, in section 52.

The Court of Appeals considered the question whether those provisions were consistent with the true sense of the declaration of the Constitution, and said, speaking by Judge Denio (page 82): "The mandate that an accused person should not be compelled to give evidence against himself would fail to secure the whole object intended if a prosecutor might call an accomplice or confederate in a criminal offense, and afterward use the evidence he might give to procure a conviction on the trial of an indictment against him. If obliged to testify, on the trial of the co-offender, to matters which would show his own complicity, it might be said upon a very liberal construction of the language that he was compelled to give evidence against himself; that is, to give evidence which might be used in a criminal case against himself. * * * It is of course competent for the Legislature to change any doctrine of the common law, but I think they could not compel a witness to testify, on the trial of another person, to facts which would prove himself guilty of a crime, without indemnifying him against the consequences, because I think, as has been mentioned, that by a legal construction the Constitution would be found to forbid it." But the court went on to say: "If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own guilt apparent, or at least capable of proof, though his account of the transactions should never be used as evidence, it is the misfortune of his condition, and not any want of humanity in the law. If a witness objects to a question on the ground that an answer would criminate himself, he must allege in substance that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offense. If the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged. It is not within any reasonable construction of the language of the constitutional provision. The term 'criminal case,' used in the clause, must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offense. But it must be a prosecution against him, for what is forbidden is that he should be compelled to be a witness against himself. Now if he be prosecuted criminally, touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It can not therefore be said that in such criminal case he has been made a witness against himself by force of any compulsion used toward him, to procure in the other case testimony which cannot possibly be used in the criminal case against himself." The court held therefore that Hackley was not protected by the Constitution of New York from answering before the grand jury.

In 1871, in Emery's Case, 107 Mass. 172, article 12 of

the declaration of rights in the Constitution of Massachusetts of 1870 had declared that no subject shall be "compelled to accuse or furnish evidence against himself." A statute of Massachusetts of March 8, 1871, chapter 91, entitled "An act for the better discovery of testimony and the protection of witnesses before the joint special committee on the State police," provided as follows: "No person who is called as a witness before the joint special committee on the State police shall be excused from answering any question or from the production of any paper relating to any corrupt practice or improper conduct of the State police, forming the subject of inquiry by such committee, ou the ground that the answer to such question or the production of such paper may criminate or tend to criminate himself, or to disgrace him, or otherwise render him infamous, or on the ground of privilege; but the testimony of any witness examined before said committee upon the subject aforesaid, or any statement made or paper produced by him upon such an examination, shall not be used as evidence against such witness in any civil or criminal proceeding, in any court of justice; provided however, that no official paper or record, produced by such witness on such examination, shall be held or taken to be included within the privilege of said evidence so to protect such witness in any civil or criminal proceeding as aforesaid, and that nothing in this act shall be construed to exempt any witness from prosecution and punishment for perjury committed by him in testifying as aforesaid."

might tend to show that he had been guilty of an offeuse, either against the laws relating to the keeping and sale of intoxicating liquors, or under the statute for punishing one who shall corruptly attempt to influence an executive officer by the gift or offer of a bribe. Gen. Stat., chap. 163, § 7."

In regard to the clause above quoted from the Bill of Rights, the opinion says: "By the narrowest construction this prohibition extends to all investigations of an inquisitorial nature, instituted for the purpose of discovering crime, or the perpetrators of crime, by putting suspected parties upon their examination in respect thereto, in any manner, although not in the course of any pending prosecution. But it is not even thus limited. The principle applies equally to any compulsory disclosure of his guilt by the offender himself, whether sought directly as the object of the inquiry or indirectly and incidentally for the purpose of establishing facts involved in an issue between other parties. If the disclosure thus made would be capable of being used against himself as a confession of crime, or an admission of facts tending to prove the commission of an offense by himself, in any prosecution then pending, or that might be brought against him therefor, such disclosure would be an accusation of himself, within the meaning of the constitutional provision. In the absence of regulation by statute, the protection against such self-accusation is secured by according to the guilty person, when called upon to answer as witness or otherwise, the privilege of then avowing the liability and claiming the exemption, instead of compelling him to answer, and then excluding his admissions so obtained, when afterward offered in evidence against him. This branch of the constitutional exemption corresponds with the common-law maxim, nemo tenetur seipsum accusare, the interpretation and application of which has always been in accordance with what has been just stated. Broom Leg. Max. (5th ed.) 968; Wing. Max. 486; Rosc. Crim. Ev. (2d Am. ed.) 159; Starkie Ev. (8th Am. ed.) 41, 204, and notes; 1 Greenl. Ev., § 451, and notes." The opinion then cites the case of People v. Kelly, supra, as holding that the clause in the Constitution of New York of 1846 protected a witness from being compelled to answer to matters which might tend to criminate him

Emery was summoned as a witness before the joint special committee of the Senate and House of Representatives of the General Court, "to inquire if the State police is guilty of bribery and corruption." Interrogatories were propounded to him by the committee, which he declined to answer. On a report of the facts to the Senate, it ordered his arrest for contempt. He was brought before the Senate and asked the following question: "Are you ready and willing to answer before the joint special committee appointed by this Senate and the House of Representatives of Massachusetts, to inquire if the State police is guilty of bribery and corruption, the following questions, namely: First. Whether, since the appointment of the State constabulary force, you have ever been pros-self, when called to testify against another party, and ecuted for the sale or keeping for sale intoxicating liquors. Second. Have you ever paid any money to any State constable, and do you know of any corrupt practice or improper conduct of the State police? If so, state fully what sums, and to whom you have thus paid money, and also what you know of such corrupt practice and improper conduct." He answered in writing as follows: "Intending no disrespect to the honorable Senate, I answer, under advice of counsel, that I am ready and willing to answer the first question, but I decline to answer the second question upon the grounds: First, that the answer thereto will accuse me of an indictable offense; second, that the answer thereto will furnish evidence against me by which I can be convicted of such an offense." The Senate thereupon committed him to the custody of the sergeant-at-arms, to be confined in jail for twenty-five days, or until the further order of the Senate, unless he should sooner answer the questions. He was imprisoned accordingly, and the case was brought before Judge Wells of the Supreme Judicial Court on a writ of habeas corpus and was fully argued. It was held under advisement and for conference with the other judges, and in the opinion subsequently delivered by Judge Wells it is stated that that opinion had the approval and unanimous concurrence of all the members of the court. It is said in the opinion, in regard to the second question put to the witness: "It is apparent that an affirmative answer to the question put to him

also People v. Mather, 4 Wend. 229, as declaring that the exemption in the Constitution of New York extended to the disclosure of any fact which might constitute an essential link in a chain of evidence by which guilt might be established, although that fact alone would not indicate any crime. The opinion then proceeds: "The third branch of the provisiou in the Constitution of Massachusetts, or furnish evidence against himself,' must be equally extensive in its ap plication, and in its interpretation may be presumed to be intended to add something to the significance of that which precedes. Aside from this consideration, and upon the language of the proposition standing by itself, it is a reasonable construction to hold that it protects a person from being compelled to disclose the circumstances of his offense, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained or made effectual for his conviction, without using his answers as direct admissions against him. For all practical purposes such disclosures would have the effect to furnish evidence against the party making them. They might furnish the only means of discovering the names of those who could give evidence concerning the transaction, the instrument by which a crime was perpetrated, or even the corpus delicti itself. Both the reason upon which the rule is founded and the terms in which it is expressed forbid that it should be limited to confessions of guilt, or statements which may be

proved in subsequent prosecutions, as admissions of facts sought to be established therein." The court then proceeds to hold that those constitutional provisions applied to investigations before a' legislative body.

Passing then to consider the effect of the statute of 1871, the opinion says: "It follows from the considerations already named that so far as this statute requires a witness, who may be called, to answer questions and produce papers which may tend to criminate himself, and attempts to take from him the constitutional privilege in respect thereto, it must be entirely ineffectual for that purpose unless it also relieves him from all liabilities, for protection against which the privilege is secured to him by the Constitution. The statute does not undertake to secure him against certain of those liabilities, to-wit, the use of any disclosures he may make, as admissions or direct evidence against him, in any civil or criminal proceeding." The opinion then refers to the case of People v. Kelly, supra, and says that that decision was made upon the ground that the terms of the provision of the Constitution of New York protected the witness only from being compelled "to be a witness against himself," and did not protect him from the indirect and incidental consequences of a disclosure which he might be called upon to make.

self, either in that or any other proceeding;" and that the provision could not be confined "only to cases in which a man is called on to give evidence himself in a prosecution pending against him."

The opinion then cited People v. Kelly and Emery Case, hereinbefore referred to, as sustaining its view, and proceeded to consider the effect of an act of Virginia, passed October 31, 1870, in regard to dueling, which provided as follows: Every person who may have been the bearer of such challenge or acceptance, or otherwise engaged or concerned in any duel, may be required, in any prosecution against any person but himself, for having taught or aided or abetted in such duel, to testify as a witness in such prosecution; but any statement made by such person, as such witness, shall not be used against him in any prosecution against himself." The court held that the effect of the statute was to invade the constitutional right of the citizen, and to deprive the citizen of his constitutional right to refuse to give evidence tending to criminate himself, without indemnity, and that the act was therefore to that extent unconstitutional and void. It held further, that before the constitutional privilege could be taken away by the Legislature, there must be absolute indemnity provided; that nothing short of complete amnesty to the witness, an absolute wiping out of the offense as to him, so that he could no longer be prosecuted for it, would furnish that indemnity; that the statute in question did not furnish it, but only provided that the statement made by the witness should not be used against him in a prosecution against himself; that without using one word of that statement, the attorney for the Commonwealth might in many cases, and in a case like that in hand inevitably would, be led by the testimony of the witness to means and sources of information which might result in criminating the witness himself; and that this would be to deprive the witness of his privilege, without indemnity. The judgment of the Hustings Court was reversed.

The opinion then says: "The terms of the provision in the Constitution of Massachusetts require a much broader interpretation, as has already been indicated; and no one can be required to forego an appeal to its protection unless first secured from future liability, and exposure to be prejudiced, in any criminal proceeding against him, as fully and extensively as he would be secured by availing himself of the privilege accorded by the Constitution. Under the interpretation already given, this cannot be accomplished so long as be remains liable to prosecution criminally for any matters or causes in respect of which he shall be examined, or to which his testimony shall relate. It is not done, in direct terms, by the statute in question; it is not contended that the statute is capable of an interpretation which will give it that effect; and it is clear that it cannot and was not intended to so operate. Failing then to furnish to the persons to be examined an exemption equivalent to that contained in the Constitution, or to remove the whole liability against which its provisions were intended to protect them, it fails to deprive them of the right to appeal to the priv-ground that his evidence might tend to criminate him. ilege therein. The result is, that in appealing to his privilege, as an exemption from the obligation to answer the inquiries put to him, the petitioner was in the exercise of his constitutional right; and his refusal to answer upon that ground was not and could not be considered as disorderly conduct, or a contempt of the authority of the body before which he was called to answer. There being no legal ground to authorize the commitment upon which he is held, he must be discharged therefrom."

In Cullen v. Com., 24 Gratt. 624, in 1873, Cullen, when asked before a grand jury to state what he knew of a certain duel, declined to answer, because the answer would tend to criminate him. The Hustings Court ordered him to answer, and on his still refusing to do so, fined him and committed him to jail. The case was brought before the Court of Appeals of Virginia. The Bill of Rights of the Constitution of Virginia of 1870, in section 10 of article 1, provided that no man can "be compelled to give evidence against himself." That provision had existed in the Bill of Rights of Virginia as far back as June 12, 1776, and of it the Court of Appeals said that it was the purpose of its framers "to declare, as part of the organic law, that no man should anywhere, before any tribunal, in any proceeding, be compelled to give evidence tending to criminate him

In State v. Nowell, 58 N. H. 314, in 1878, article 15 of the Bill of Rights in the Constitution of New Hampshire of 1792 declared that no subject shall “be compelled to accuse or furnish evidence against himself." Nowell refused to testify before a grand jury as to whether, as a clerk for one Goodwin, he had sold spirituous liquors, and whether Goodwin sold them or kept them for sale. He declined to answer, on the

self. A statute of the State (Gen. Stat., chap. 99, § 20) provided as follows: "No clerk, servant or agent of any person accused of a violation of this chapter shall be excused from testifying against his principal, for the reason that he may thereby criminate himself; but no testimony so given by him shall in any prosecution be used as evidence, either directly or indirectly, against him, nor shall he be thereafter prosecuted for any offense so disclosed by him." A motion having been made, before the Supreme Court of New Hampshire for an attachment against him for contempt for refusing to testify, that court, after quoting the provision in the Bill of Rights, said: "The common-law maxim (thus affirmed by the Bill of Rights), that no one shall be compelled to testify to his own criminality has been understood to mean, not only that the subject shall not be compelled to disclose his guilt upon a trial of a criminal proceeding against himself, but also that he shall not be required to disclose, on the trial of issues between others, facts that can be used against him as admissions tending to prove his guilt of any crime or offense of which he may then or afterward be charged, or the sources from which, or the means by which, evidence of its commission or of his connection with it may be obtained. Emery's Cuse, 107 Mass. 172, 181,"

demnified or protected the party against the consequences of his previous testimony. The court cited with approval the case of People v. Kelly, supra.

ing him to be a witness against himself, within the meaning of the fifth amendment of the Constitution, and is the equivalent of a search and seizure and an unreasonable search and seizure within the meaning In Bedgood v. State, 115 Ind. 275, in 1888, the Supreme of the fourth amendment. Though the proceeding in Court of Indiana had under consideration the provisquestion is divested of many of the aggravating inci-ion of article 1, section 14, of the Bill of Rights of the dents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis."

In that case, the fifth section of the act of June 22, 1874 (18 Stat. 187), which authorized the court in rev. enue cases to require the defendant or claimant to produce his private papers in court, or else the allegations of the government's attorney would be taken as confessed, was held to be unconstitutional and void, as applied to a suit for a penalty or to establish a forfeiture of the goods of the party, because it was repugnant to the fourth and fifth amendments to the Constitution; and it was held that a proceeding to forfeit the goods was a criminal case, within the meaning of the fifth amendment. Mr. Justice Miller, in the concur ring opinion of himself and Chief Justice Waite in the case, agreed that it was a criminal one, within the meaning of the fifth amendment, and that the effect of the act of Congress was to compel the party on whom the order of the court was served to be a witness against himself.

In People v. Sharp, 107 N. Y. 427, in 1887, the Court of Appeals of New York had under consideration the provision of article 1, section 6, of the Constitution of New York of 1846, that no person shall be compelled in any criminal case to be a witness against himself," and the provision of section 79 of the Penal Code of New York, title 8, chapter 1, in regard to bribery and corruption, which was in these words: "A person offending against any provision of any foregoing section of this Code relating to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which bas

been accepted shall not thereafter be liable to indictment, prosecution or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution." Sharp and others were indicted for bribing a member of the common council, and Sharp was tried separately. It was proved that he had been examined as a witness before a committee of the State Senate, and there gave testimony which the prosecution claimed was evidence of his complicity in the crime; and that testimony was offered in evidence by the prosecution. The testimony had been given under the compulsion of a subpoena, and was admitted at the trial, against the objection that the disclosures before the Senate committee were privileged. The Court of Appeals held that section 79 of the Penal Code made the constitutional privilege inapplicable, because it in

Constitution of Indiana of 1851, which provides that "no person in any criminal prosecution shall be compelled to testify against himself," and the provision of section 1800 of the Revised Statutes of Indiana of 1881, to the effect that testimony given by a witness should not be used in any proceeding against him. On a trial before a petit jury in a criminal case against others, a woman had refused to answer a question, on the ground that the auswer might criminate her. The Supreme Court held, that as the statute prohibited her testimony from being used against her, it completely protected her, and the judgment was reversed because the trial court had erroneously refused to require her to answer the question.

This review of the cases above referred to shows that in the Constitutions of Georgia, California and New York the provision is identically or substantially that of the Constitution of the United States, namely, that no person shall be compelled in any criminal case to be a witness against himself;" while in the Constitutions of Pennsylvania, Arkansas, Indiana, Massachusetts, Virginia, New Hampshire and North Carolina it is different in language, and to the effect that "no man can be compelled to give evidence against himself;" or that, in prosecutions, the accused "shall not be compelled to give evidence against himself;' or that "no person in any criminal prosecution shall be compelled to testify against himself;" or that no person shall be "compelled to accuse or furnish evidence against himself;" or that no man can be compelled to give evidence against himself:" or that, in all criminal prosecutions, "every man has the right to not be compelled to give evidence against himself."

Under the Constitutions of Arkansas, Georgia, California, Indiana, New York, New Hampshire and North Carolina it was held that a given statutory provision made it lawful to compel a witness to testify; while in Massachusetts and Virginia it was held that the statutory provisions were inadequate, in view of the constitutional provision. In New Hampshire, and in New York under the Penal Code, it was held that the statutory provisions were sufficient to supply the place of the constitutional provision, because by statute the witness was entirely relieved from prosecution.

But as the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a selfcriminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation; and that where the Constitution, as in the cases of Massachusetts and New Hampshire, declares that the subject shall not be "compelled to accuse or furnish evidence against himself," such a provision should not have a different interpretation from that which belongs to Constitutions like those of the United States and of New York, which declare that no person shall be “ compelled in any criminal case to be a witness against himself."

Under the rulings above referred to by Chief Justice Marshall and by this court, and those in Massachusetts, New Hampshire and Virginia, the judgment of the Circuit Court in the present case cannot be sustained. It is a reasonable construction, we think, of the constitutional provision, that the witness is protected from being compelled to disclose the circum