Page:Harvard Law Review Volume 5.djvu/41

THE PRIVILEGE OF WITNESSES. 2$ and punishment for perjury committed in discovering or testify- ing as aforesaid." This statute, it was held, abrogated the privilege of witnesses to refuse to furnish self-incriminatory evidence, because it pro- tected the witness from any unfair use against him of the evidence furnished, — that it took away the reason of the privilege, and, with the reason, the privilege itself. The question raised has never been passed upon by the United States Supreme Court. There are, however, several decisions and dicta of the lower Federal courts, all in accord with the decisions of the Circuit and District Court of the Northern Dis- trict of Illinois. 1 In accord, also, are the decisions of various State courts, nota- bly the Courts of Appeals of New York. 2 In opposition to these cases are the case of Henry Emery, 107 Mass. 172, and a few other State decisions. 3 As none of these cases are of binding authority upon the Supreme Court, and the question will be considered rem integrant by that body, it seems that, at this stage, a discussion of the ques- tion upon principle is not out of place. In such a discussion, one of the first considerations that arises is, whether there exists in the Federal constitution any sanction or guarantee of the witness' privilege against being compelled to incriminate himself. There appears to be no such guarantee stated in express and unambig- uous terms. The provision most closely applicable is one of the clauses of the fifth amendment, which provides that " no person shall be compelled, in any criminal case, to be a witness against himself." This language, in its most obvious interpretation, would seem only to prohibit compelling a defendant in a criminal action to become a witness against himself in such action. Still, by another interpretation, by construing the words " criminal case " as meaning " a matter involving criminal guilt," and the words " to be a witness " as meaning " to furnish evidence," the lan- 1 U. S. v. Brown, 1 Sawyer, 531 ; U. S. v. McCarthy, 21 Blatch. 470 ; U. S. v. Wil- liams, 15 Int. Rev. Record, 199; In re Phillips, 2 Am. L. Times, 154. 2 People v. Hackley, 24 N. Y. 74; People v. Sharp, 107 N. Y. 427 ; La Fontaine v. Southern Underwriters, 83 N. Car. 132; State v. Quarles, 13 Ark. 307; Kneeland v. State, 62 Ga. 395; Higdon v. Heard, 14 Ga. 255; Wilkins v. Malone, 14 Ind. 153. 3 Cullen v. Commonwealth, 24 Gratt. (Va.) 624 ; Kendrick v. Commonwealth, 78 Va. 490 ; State v. Nowell, 58 N. II. 314 , State v. Warner, 13 Lea (Tenn.), 52 (opinion of Turney, J.).