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shall not "be compelled in any criminal case to be a witness against himself;" and the protection of § 860 is not coextensive with the constitutional provision. Legislation cannot detract from the privilege afforded by the Constitution. It would be quite another thing if the Constitution had provided that no person shall be compelled in any criminal case to be a witness against himself, unless it should be provided by statute that criminating evidence extracted from a witness against his will should not be used against him. But a mere act of Congress cannot amend the Constitution, even if it should engraft thereon such a proviso.

In some States, where there is a like constitutional provision, it has been attempted by legislation to remove the constitutional provision, by declaring that there shall be no future criminal prosecution against the witness, thus making it impossible for the criminal charge against him ever to come under the cognizance of any court, or at least enabling him to plead the statute in absolute bar of such prosecution.

A review of the subject in adjudged cases will be useful.

In Commonwealth v. Gibbs, 3 Yeates, 429, and 4 Dall. 253, in 1802, the declaration of rights in the constitution of Pennsylvania of 1776, declared, that no man can "be compelled to give evidence against himself," and the same language was found in the constitution of 1790. Under this, the Supreme Court of Pennsylvania held that the maxim that no one is bound to accuse himself extended to cases where the answer might involve him in shame or reproach; and it held to the same effect in Lessee of Galbreath v. Eichelberger, 3 Yeates, 515, in 1803.

In June, 1807, Chief Justice Marshall, in the Circuit Court of the United States for the District of Virginia, in Burr's Trial, 1 Burr's Trial, 244, on the question whether the witness was privileged not to accuse himself, said: "If the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it 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

Opinion of the Court.

court can demand no other testimony of the fact. According to their statement," (the counsel for the United States,)" a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness, by disclosing a single fact, may complete the testimony against himself; and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself, would most obviously be infringed, by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual, the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws."

In 1853, in State v. Quarles, 13 Arkansas, 307, the declaration of rights in the constitution of Arkansas of 1836, (Art. 2, sec. 11,) had declared that in prosecutions by indictment or presentment, the accused "shall not be compelled to give evidence against himself." Quarles was indicted under a gaming law, for betting money on a game of chance. A nolle prosequi having been entered as to one Neal, against whom a like prosecution was pending, Neal was sworn as a witness for the State, and informed of the nolle prosequi, and that no indictment for a similar offence would be preferred against him, and was asked whether he had seen Quarles bet money at cards within a specified time. Neal refused to answer the

Opinion of the Court.

question, alleging that he feared that he would criminate himself thereby. The trial court refused to compel him to answer, and, the jury having found for the defendant, the State appealed. There was a statute of Arkansas which read as follows: "In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offence."

The Supreme Court of Arkansas held, that, although witnesses were not expressed in the terms of the provisions of the bill of rights, yet they were substantially embraced to the full extent of a complete guarantee against self-accusation; and that the privilege of the bill of rights was that a witness should not be compelled to produce the evidence to prove himself guilty of the crime about which he might be called to testify. But it was further held that, by the statute, the legislature had so changed the rule, by directing that the testimony required to be given should never be used against a witness for the purpose of procuring his conviction for the crime or misdemeanor to which it related, that it was no longer necessary for him to claim his privilege in regard to such testimony, in order to prevent its afterwards being used against him; and that the only question was, whether the statutory regulation afforded sufficient protection to the witness, responsive to the new rule and to the constitutional guarantee against compulsory self-accusation. It was held, that the statute sufficiently guarded witnesses from self-accusation, within the meaning of the constitution, to make it lawful for the courts to compel them to testify as to all matters embraced by the provisions of the statute on that subject.

In Higdon v. Heard, 14 Georgia, 255, in 1853, it was said that the constitution of Georgia declared that "no person shall be compelled in any criminal case to be a witness against himself." In that case the plaintiff had filed a bill in equity praying a discovery as to property which he alleged the defendants had won from him in a game of cards. The bill

Opinion of the Court.

was demurred to on the ground that the law of the State compelling a discovery of gaming transactions was unconstitutional, because such transactions were criminal, and the statute did not grant an absolute and unconditional release from punishment, and because the defendants could not make the discovery sought without criminating themselves and incurring penalties. The demurrer was overruled by the Supreme Court of Georgia, on the ground that, although all persons were protected by the constitution from furnishing evidence against themselves which might tend to subject them to a criminal prosecution, they received their protection by virtue of an act of Georgia of 1764, because, under that act, their answers could not be read in evidence against them in any criminal case whatever, being excluded by the constitution.

In Ex parte Rowe, 7 California, 184, in 1857, the constitution of California of 1849 provided, (Art. 1, sec. 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. The Supreme Court of California, on habeas corpus, considered the construction and constitutionality of the 5th 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 offence; 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 Indiana, 153, the constitution of Indiana of 1851, in its bill of rights, (Art. 1, sec. 14,) had declared that "no person in any criminal prosecution shall be

Opinion of the Court.

compelled to testify against himself." In a suit brought by Malone to recover on a promissory note, the defence 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. Stats. p. 345, sec. 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