Page:Harvard Law Review Volume 5.djvu/103

NEMO TENETUR SEIPSUM PROD ERE. 87 limitation and our periods of prescription, that there is a time be- yond which it is not expedient to redress wrongs and to punish crimes. In the same way there are limits to the places where, and the occasions when, investigations into wrongs and crimes may with profit be made. Disproportionate inconvenience, needless annoyance, continual opportunity for the gratification of personal spite and malevolence, a natural and inevitable fear of the witness- stand as a place of inquisition and a resulting injury to justice, — these are some of the consequences which warn us against subjecting the guilty to an unlimited liability of interrogation. Justice is above all a practical aim, and human nature must be taken as it is. It is useless to demand that the privilege shall be totally abolished. As has happened so often in Anglo-American jurisprudence, a principle inherited from the days of Brian or Coke or Hale has happened to answer to some demand of modern life, and is still accepted, in part or entirely, though on grounds quite new and different; and so it is in this case. The plan which will here be suggested is this : Let us abolish the old privilege, and provide in its stead for a general freedom of questioning, establishing limits, however, in the shape of certain exceptions. (1.) On one such exception I suppose that all would be agreed, namely, that no incriminating question be allowed upon a point not material to the main issue. This exception would remove all opportunity to annoy or to disgrace by questions prob' ing into secondary topics, and would confine the interrogations to the limits strictly necessary for the investigation of the matter in hand. (2.) >If any further extension of the privilege were desired, it might be granted indiscriminately to all witnesses (other than the accused). That is, none but accused persons need answer crimi- nating questions, and then only on points material to the issue. Some such safeguard might be thought necessary for preventing the witness-box from becoming a place of dread and dislike, and for guaranteeing the due supply of witnesses. I am inclined to think, however, that the first exception alone would satisfy the needs of justice. By putting the- question of materiality in the hands of the presiding judge alone, without appeal, we should avoid the danger of adding to the volumes of reports and of pro- tracting litigation, and should put ourselves in line with one of the great and needed reforms of the day. Space prevents me from referring to other interesting aspects