and cruel, it recognised fully the dangerous and utterly untrustworthy character of extorted confessions, and was never subject to the reproach that it gave judgment upon them:" Cooley's Const. Lim. 384. That an accused person cannot be compelled at common law to give evidence tending to criminate himself is so well established that any citation of the authorities seems superfluous. Nevertheless, reference may be had to the following: Lo v. Mitchell, 18 Me. 372; State v. Bilansky, 3 Minn. 246, 258; Simmons v. Holster, 13 Id. 249; Head's Case, 44 Miss. 731; State v. Sneed, 84 N. C. 822; Commonwealth v. Nichols, 114 Mass. 286; Barnes v. State, 19 Conn. 404; Grannis v. Brandon, 5 Day 272; Hall v. State, 40 Ala. 698; Calhoun v. Thompson, 56 Id. 166; Clark v. Reese, 35 Cal. 89; Ex parte Rowe, 7 Id. 184; Cossart v. State, 14 Ark. 539; Bellinger v. People, 8 Wend. 596; People v. Hackley, 24 N. Y. 83; Phoenix v. Dupy, 53 How. Pr. 158; Cullen v. Commonwealth, 24 Gratt. 624; Jennings v. Prentice, 39

Mich. 421.

It is curious to notice that while there was no express decision on this question in England until 1861, there were several decisions in the courts of this country, announced at a much earlier day, and of the same tenor as that announced in the principal case. But these cases seem to have been overlooked by the English courts in their consideration of the subject. The matter came up in this country in 1807 in the famous trial of Aaron Burr, for treason, in the Circuit Court of the United States, at Richmond. Mr. Chief Justice MARSHALL presided. Several days were consumed in the argument of the question by distinguished counsel. The chief justice took time to deliberate, and announced that the court must determine in the first instance whether the question was of such a nature that an answer could criminate the witness. That if the court saw that the question was of such a description that an answer to it might or might not criminate the witness, according to the purport of the answer, that in such case it then rested with the witness, who alone could tell what his answer would be, to answer the question or not. "If in such a case he say, upon his oath, that his answer would criminate himself, the court can demand no other testimony of the fact. If the declaration be untrue, it is in conscience and in law as much a perjury as if he had declared any other untruth upon his oath; as it is one of those cases in which the rule of law must be abandoned, or the oath of the witness be received:" 4 Causes Célèbres 253; Burr's Trial; s. c., 1 Rob. 215.

The principal case considers the question whether a witness is the sole judge whether a question put to him may tend to criminate him. The English cases are examined in the opinions pronounced, and it is announced that while the question raised has been alluded to in several cases, there have only been two express decisions thereon. The first was in Regina v. Boyes, 1 B. & S. 311, decided as late as 1861. The second was in Ex parte Schofield, L. R., 6 Ch. Div. 230, decided in 1877. Previous to these decisions, it seems there had been merely dicta expressed on both sides of the question. To these two express decisions there is now added that announced in the principal case, all three agreeing that the court must determine from the nature of the case and the character of the question whether an answer to it might be such as to criminate the wit

ness.

In People v. Mather, 4 Wend. 229, 254 (1830), this subject was carefully considered in the Supreme Court of New York, Mr. Justice MARCY pronouncing

the opinion. The conclusion reached was thus expressed: "Where he claims to be excused from answering because his answer will have a tendency to implicate him in a crime or misdemeanor, or will

then the court are to determine whether the answer he may give to the question can criminate him directly or indirectly, by furnishing direct evidence of his guilt, or by establishing one of many facts, which together may constitute a chain of testimony sufficient to warrant his conviction, but which one fact of itself could not produce such result; and if they think the answer may in any way criminate him, they must allow his privilege, without exacting from him to explain how he would be criminated by the answer which the truth may oblige him to give. If the witness was obliged to show how the effect is produced, the protections would at once be annihilated. The means which he would be in that case compelled to use to obtain protection, would involve the surrender of the very object for the security of which the protection was sought.' And to the same effect is Curtis v. Knox, Denio 341, 342 (1845).

So the Supreme Court of New Hampshire in Janvrin v. Scammon, 9 Foster 290 (1854), declared: "Whether the answer may tend to criminate or expose the witness, is a point which the court will determine under all the circumstances of the case; but without requiring him fully to explain how he might be criminated by the answer, which the truth would oblige him to give; for if he were obliged to show how the effect would be produced, the protection which the rule is designed to afford would be destroyed." And in 1854, in Richman v. State, 2 Greene 532, the Supreme Court of Iowa followed the rule announced in Burr's Case, supra, and held that while the witness was the sole judge when it appeared from the very nature of the question that any answer might criminate him, yet it would be otherwise in cases where this did not appear from the nature of the question.

The Supreme Court of South Carolina has sometimes been supposed to have laid down a contrary rule in State v. Ed

where it is declared that the witness and not the court determines the matter, and it is said: "It is utterly impossible that the court can decide without possessing a full and complete knowledge of all the facts which it may be important for the witness to conceal; therefore something must necessarily be left to the witness; and we have the same security for a knowledge of the fact that he may be implicated by the answer, that we have for the knowledge of any other fact.” It is to be observed, however, that the language used is entirely consistent with the rule laid down in Burr's Case, provided the question asked was such that the court could see from it that an answer might implicate the witness. as we read the case, the court seems to have been satisfied that the answer might criminate the witness, or lead up to a question that would directly do so. It is, moreover, to be observed that the same court in Poole v. Perritt, 1 Spear 128 (1842), while recognising the authority of State v. Edwards, supra, at the same time recognised the authority of the rule announced in Burr's Case. As we read the cases they are consistent with Burr's Case.

And

But Warner v. Lucas, 10 Ohio 336 (1840), is no doubt to be recognised as holding that the witness himself is sole judge whether a question will criminate him, and that the court has no authority in the matter. It cannot be reconciled with the rule in Burr's Case. And it may be that Chamberlain v. Willson, 12 Vt. 492, 493 (1840), is to be understood in the same way, although that is not so clear. However this may be, we take it that it is evident that the weight of authority in this country is clearly in support of the doctrine announced in the principal case.

While a witness is not bound to answer a question criminating himself, yet a question may be properly put to a witness the answer to which may criminate him, for it is his privilege to answer or

press provision in the Constitution of the United States, and in the Constitutions of the several states, with hardly an exception, this right to be protected against giving self-criminating evidence has been secured beyond the power of legislative or judicial infringement. But statutes have been adopted in some of the states providing that the testimony given by a witness on the trial of another cannot be used against such witness in a criminal prosecution for the offence concerning which he testifies, and providing for his giving testimony on such trial against such third party, subject to this protection. And in this connection it has been held that the constitutional provisions above noted are designed for the protection of the witness against conviction for a criminal offence, and not as an immunity for crime, and that to the extent that such statutes afford him protection against such conviction they are no invasion of his right to be exempt from self-accusation: Cossart v. State, 14 Ark. 539; State v. Quarles, 13 Id. 307; Ex parte Rowe, 7 Cal. 184.

It is to be noted, however, that the constitutional provision that "no accused shall be compelled to give evidence against himself in any criminal case" is, in general, a protection to the witness either on his own or on another's trial: Cullen v. Commonwealth, 24 Gratt. 624; Emery's Case, 107 Mass. 172; People v. Kelly, 24 N. Y. 74.

It is familiar to all that in some of the states statutes have been passed which give to an accused person the right to testify in his own behalf. "These statutes, however, cannot be so construed as to authorize compulsory process against an accused to compel him to disclose more than he chooses; they do not so far change the old system as to establish an inquisitorial process for obtaining evidence; they confer a privilege which the defendant may use at his option. If he does not choose to avail himself of it unfavorable inferences are

not to be drawn to his prejudice from that circumstance; and if he does testify, he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight as, under the circumstances, they think it entitled to; otherwise the statute must have set aside and overruled the constitutional maxim which protects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger: Cooley's Const. Lim. (4th ed.) *317, and cases there cited. It is to be observed, however, that it has been held that where a defendant in a criminal case at his own request becomes a witness, he thereby waives his constitutional privilege and subjects himself to the peril of cross-examination as to all matters pertinent to the issue. "He cannot have the privilege of self-exonerative testimony without incurring the dangers incident to discreditive or criminative cross-interrogation:" State v. Wentworth, 65 Me. 240; State v. Ober, 52 N. H. 459; Commonwealth v. Bonner, 97 Mass. 587; Commonwealth v. Morgan, 107 Id. 199; Commonwealth v. Mullen, 97 Id. 545; Connors v. People, 50 N. Y. 240; People v. Casey, 72 Id. 393; People v. Greenfield, 23 Hun 471. It is held that a party offering himself as a witness in his own behalf, and refusing to answer upon the ground that his answer might have a tendency to criminate himself stands differently from a third person brought into court to testify in a case in which he has no interest, and that his refusal to answer in such case is competent evidence against him: Andrews v. Frye, 104 Mass. 234; Commonwealth v. Nichols, 114 Id. 287; Norfolk v. Gaylord, 28 Conn. 309.

The length of this note precludes us from considering at length the interesting question whether the courts can order a person accused of crime to make profert of his person. Would this be, in

efect, compelling the witness to give evidence against himself, and therefore a violation of his constitutional rights? The authorities are in conflict on this subject. The courts of North Carolina, Nevada and Texas have recognised the right of the court to compel the accused to make profert of his person: Garret's Case, 71 N. C. 85; State v. Ah Chuey, 14 Nev. 79; Walker v. State, 7 Tex. Ct. of App. 245, 265. While in Georgia, New York and Tennessee a different conclusion has been reached: Blackwell v. State (Sup. Ct. of Ga.); 3 Crim. Law Mag. 394; Day v. State, 63 Ga. 667; People v. McCoy, 45 How. Pr. 216; Stokes v. State, 5 Baxter 619; s. c. 30 Am. Rep. 72. And see 15 Cent. L. J. 2, where these cases have been considered in detail by the writer of this note.

In Myers v. State, 8 Tex. Court of App. 321, the court considers it questionable whether a recusant witness can be put in solitary confinement on bread and water until he answers. The general rule in commitments for contempt, when the imprisonment is intended inetely as a punishment for the offence, is that the commitment should specify sme definite time during which the imprisonment is to continue. But it is well settled that where a witness refuses to answer a lawful question he may be imprisoned until he does answer, and his imprisonment need not be limited to a given number of days: Ec parte Rienshow, 6 Mo. App. 474. And see Goff v. Case, 3 Mau. & Sel. 203.

We conclude this note with the following from the opinion of the Supreme Court of Illinois in Sprague v. Craig, 51 Ill. 292: "When a witness obstirately refuses to testify, and is contumarious after imprisonment, we can perceive no means of relief to the party who desires his testimony, unless it be by an action against the witness to reCover for the consequential injury he has thas inflicted upon the party. It is not VOL. XXXI.-5

required that the court shall continue the cause from day to day for days, weeks, and, it may be, for months, until an obstinate witness shall yield to the requirements of the law, and shall discharge a plain duty and enable justice to be done between litigants. It is the duty of the court, in such cases, to fine and imprison a witness who perversely refuses to testify, until he yields obedience to the law, but the extent of the fine or imprisonment is a matter coilateral to, and does not concern the parties litigant, only so far as it may incidentally affect their rights by compelling the witness to testify."

Since the above note was prepared the writer has had the opportunity of reading the very interesting and able opinion of Mr. Surrogate CALVIN, of New York, in Youngs v. Youngs, decided in March 1882, and reported in 5 Redf. 505, and which has just come to hand. In that case the very question arose which the court had to consider in the principal case, and the English authorities were fully examined. The conclusion reached was similar to that in the principal case. We may be pardoned for quoting as follows from that opinion: "I have been able to find no reported case in which this privilege of refusing to answer on account of possible peril has been successfully invoked, where the nature of the question did not, under the particular circumstances, apparent at the time, immediately suggest the reasonableness of the claim and the injustice of denying it. *** It seems to me that, in this matter, there are two extremes, which ought equally to be avoided: First. That of requiring from a witness, who has honestly claimed the privilege, any explanation whatever of his reason for refusing to answer, if the court can see how such answer may fairly and reasonably tend to criminate him. Second. That of permitting a witness to interpose the shield of apprehended peril as a protection against