Opinion of the Court.

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 circumstances of his offence, 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 connection, without using his answers as direct admissions against him." Emery's Case, 107 Mass. 172, 182.

It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. It is to be noted of § 860 of the Revised Statutes that it does not undertake to compel self-criminating evidence from a party or a witness. In several of the state statutes above referred to, the testimony of the party or witness is made compulsory, and in some either all possibility of a future prosecution of the party or witness is distinctly taken away, or he can plead in bar or abatement the fact that he was compelled to testify.

We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not

Opinion of the Court.

supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates. In this respect, we give our assent rather to the doctrine of Emery's Case, in Massachusetts, than to that of People v. Kelly, in New York; and we consider that the ruling of this court in Boyd v. United States, supra, supports the view we take. Section 860, moreover, affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.

It is contended on the part of the appellee that the reason why the courts in Virginia, Massachusetts and New Hampshire have held that the exonerating statute must be so broad as to give the witness complete amnesty, is that the constitutions of those States give to the witness a broader privilege and exemption than is granted by the Constitution of the United States, in that their language is that the witness shall not be compelled to accuse himself, or furnish evidence against himself, or give evidence against himself; and it is contended that the terms of the Constitution of the United States, and of the constitutions of Georgia, California and New York are more restricted. But we are of opinion that, however this difference may have been commented on in some of the decisions, there is really, in spirit and principle, no distinction arising out of such difference of language.

From a consideration of the language of the constitutional provision, and of all the authorities referred to, we are clearly of opinion that the appellant was entitled to refuse, as he did, to answer. The judgment of the Circuit Court must, therefore, be

Reversed, and the case remanded to that court, with a direction to discharge the appellant from custody, on the writ of habeas corpus.

Syllabus.

McNEE v. DONAHUE.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

No. 121. Argued and submitted December 14, 1891.- Decided January 11, 1892.

In ejectment plaintiff claimed title to certain parcels of land by purchase from the State of California under its selection of lands as part of the Agricultural College grant from Congress of July 2, 1862, 12 Stat. 503, c. 130; certification thereof by the United States Land Department thereunder; and subsequent patent from the State to him. Defendant claimed legal title by a prior purchase from the State under prior state selections, [1] by purchase and location of state land warrants issued by the State under the grant of 500,000 acres made to it by section eight of act of September 4, 1841, 5 Stat. 453, c. 16, and [2] by purchase of indemnity land, selected in lieu of school sections sixteen and thirty-six, granted by the act of Congress of March 3, 1853, 10 Stat. 244, c. 145, and lost by inclusion within Mexican grants subsequently confirmed; further claiming that both selections were confirmed by the first section of the Act of Congress of July 23, 1866, 14 Stat. 218, c. 219, passed before the selection, certification and patenting under which plaintiff claims. Held, (1) That the first section of the act of July 23, 1866, must be construed in connection with section two of that act, and, as thus construed, it did not confirm the selections under the 500,000 acre grant, those selections not having been made of lands previously surveyed by authority of the United States: but said section, thus construed, did confirm the lands selected in lieu of the school sections taken by the Mexican grants, such selected lands having been previously surveyed by authority of the United States, and notice of such selection having been given to the register of the local land office, and the lands having been sold to a bona fide purchaser, in good faith, under the laws of the State;

(2) That confirmation to the State of its title enured to the benefit of its grantee without any further action by the land department or by the State.

A legislative confirmation of a claim to land with defined boundaries, or capable of identification, perfects the title of the claimant to the tract, and a subsequent patent is only documentary evidence of that title. No title to lands under the Agricultural College grant of 1862, under which plaintiff claims, vested in the State until their selection and listing to the State, which was subsequent to the time at which the title of the United States passed to the defendant.

No trust was created by such grant which prevented land subject to selection thereunder from being taken under prior selections in satisfaction

г

Statement of the Case.

of other grants. No trust could arise against the State thereunder until its receipt of all or a portion of the proceeds arising from the sale of the property, and no disposition of such proceeds could affect the title acquired by other parties, from the sale of such lands thereunder. Defendant having, after his general denial of the allegations of the complaint, for a further separate answer and defence, set up his claim of title to demanded premises by cross-complaint, and prayed affirmative relief thereon by cancellation of the State's patent to the plaintiff, or by charging him as trustee of the title and compelling him to convey the premises to the defendant, such a mode of setting up an equitable defence to an action for the possession of land being allowable under the system of civil procedure prevailing in California, the judgment of the Supreme Court of that State, declaring such trust and directing such conveyance, is affirmed.

THE Court stated the case as follows:

This is an action for the possession of certain parcels of land in the county of Santa Clara, California, embracing one hundred and six acres and a fraction of an acre, and constituting, according to the United States survey lots one (1) and two (2), of section twenty-six (26), township six (6) south, range one (1) west, Mount Diablo meridian. It was brought in the Superior Court of that county. The plaintiff, in his complaint, alleges ownership of the lands and right of possession on the 16th of June, 1882, and ever afterwards; the wrongful and unlawful entry thereon, on that day, by the defendant, and his exclusion of the plaintiff therefrom, to the latter's damage of five thousand dollars; and that the value of their use and occupation is two thousand dollars a year. He therefore prays judgment for their possession, for the damages sustained, and for the value of their use and occupation until final judgment. The defendant, in his answer, denies the material allegations of the complaint, and then, as a separate defence, by way of a cross-complaint, sets up various matters upon which he claims to have acquired the equitable title of the premises, and prays that a patent of the State for them to the plaintiff, and upon which he relies for a recovery in this case, may be adjudged null and void, or, that he hold the legal title under it in trust for the defendant, and be decreed to convey the premises to him.

Opinion of the Court.

The plaintiff answered the cross-complaint, and the case was tried by the court without the intervention of a jury. After finding the facts, it held, as a conclusion of law, that the defendant was entitled to a judgment; that the plaintiff take nothing by his action; that the defendant was entitled at the commencement of the action, and was still entitled, to the possession of the premises, and was their equitable owner; and that the plaintiff holds the legal title, under a patent by the State of California, bearing date June 18, 1882, in trust for the defendant, and should execute and deliver a conveyance of the premises to him. Judgment in conformity with this conclusion was accordingly entered. On appeal to the Supreme Court of the State it was affirmed, and the case is brought to this court, on writ of error, by the plaintiff.

Mr. S. F. Leib for plaintiff in error.

Mr. Philip G. Galpin and Mr. Wilbur G. Zeigler for defendant in error submitted on their brief.

MR. JUSTICE FIELD delivered the opinion of the court.

Under the system of procedure in civil cases which obtains in California an equitable defence as well as a legal defence may be set up to an action for the possession of land. It is required in such case that the grounds of equitable defence be stated separately from the defence at law. The answer, to that extent, is in the nature of a cross-complaint, and must contain, substantially, the allegations of a bill in equity. It must set forth a case which would justify a decree adjudging that the title held by the plaintiff should be conveyed to the defendant, or that his action for the possession of the premises should be enjoined. Wherever the two defences are presented in this way, the equitable one should, as a general rule, be disposed of before the legal remedy is considered. Its disposition may, and generally will, render unnecessary any further proceeding with the action at law. Gibson v. Chouteau, 13 Wall. 92, 103; Quinby v. Conlan, 104 U. S. 420; Estrada v. Murphy, 19 California, 248, 273.