28 HARVARD LAW REVIEW. which, in connection with other facts, would incriminate him. 1 It is enough to sustain witness' privilege that the evidence sought would or might tend to incriminate him. 2 And, in general, his mere oath that evidence sought from him would tend to incrimi- nate him is enough to entitle witness to his privilege, 3 subject, according to some authorities, to the right of the court to refuse to allow the privilege in a case where it can see that the evidence sought cannot incriminate the witness. 4 Under these rules it is plain that the witness in the murder case supposed could have refused to give any evidence whatever bearing upon the murder, and that by so refusing he might perhaps have concealed his guilt forever. But if the privilege afforded, or might afford, greater protection to the witness than that provided by the statute, what becomes of the argument that the statute has taken away the reason of the privilege. The question can be looked at in another and even clearer light. We have seen that the statute simply protects the witness from the use of his evidence as an admission or confession in a subsequent criminal proceeding against him. Now, by the com- mon law, when a witness was compelled against his claim of privi- lege, properly made, to furnish self-incriminatory evidence, such evidence was not permitted to be used against him as his admis- sions, on the ground that such admissions were not voluntary. 5 This is precisely the protection afforded by the statute. How can it be claimed that the privilege is abrogated by a statute which affords only the same protection that the law would have 1 Wigram, Discovery, p. 63; East India Co. v. Campbell, 1 Ves. Sr. 246; Cates v. Hardacre, 3 Taunt. 424; People v. Mather, 4 Wend. 229; Masters v. Prentiss, 2 Jones, Eq. (N. Car.) 62 ; Wharton, Evidence, sect. 533 ; State v. Edwards, 2 N. & McCord, L. (S. Car.) 13; Poole v. Perritt, 1 Spears, L. (S. Car.) 121 ; In re Graham, 8 Ben. 419. 2 Coburn v. Odell, 30 N. H. 540, 555 ; Janvrin v. Scammon, 29 N. H. 280 ; State v. Edwards, 2 N. & McC, L. (S. Car.) 13. 8 Warner v. Lucas, 10 Ohio, 336; Chamberlain v. Willson, 12 Vt. 491 ; 9 Criminal Law Mag. 293, 302, 303 ; Janvrin v. Scammon, 29 N. H. 280 ; People v. Mather, 4 Wend. 229; Poole v. Perritt, 1 Spears, Law (S. Car.), 121.
- Regina v. Boyes, 1 B. & S. 311 ; People v. Mather, 4 Wend. 229; 1 Aaron Bun-
Trial (Cockroft's edn.), p. 251 el seq. ; Richmond V. State, 2 C. E. Greene (Iowa), 532 ; People v. Smith, 20 111. App. 591. 6 Schoefferz>. State, 3 Wis. 820; Peoples. Mondon, 103 N.Y. 211 ; Douglass v. Wood, 1 Swan (Tenn.), 391, 395 ; State v. Broughton, 7 Ired. L. (N. Car.) 96, 101 ; Regina v. Garbett, 1 Denison, C. C. 236 ; Reg. v. Coote, L. R. 4 P. C. 599, 607 ; Whar. Crim. Evid., § 665.
