utory provision is as follows: "All the said courts of the United States shall have power in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if a plaintiff shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit; and if a defendant shall fail to comply with such order to produce books or writings, it shall be lawful for the courts, respectively, on motion as aforesaid, to give judgment against him or her by default." 72

§ 127. Same Same Statutes protecting witnesses from prosecution. In some of the states, where there are like constitutional provisions protecting persons from making disclosures tending to criminate themselves, attempts have been made by legislation to take away the constitutional privilege, by declaring that there shall be no future criminal prosecution against witnesses for the matters concerning which they may have testified, or at least enabling them to plead the statute in absolute bar of such prosecution.73 But in the federal courts, a statute which leaves the party or witness subject to prosecution after he has made the criminating disclosures, or given the criminating evidence, can not have the effect of taking away the privilege conferred by the constitution of the United States. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the testimony and disclosures relate; and section 860 of the United States Revised Statutes does not 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.74

721 U. S. Stat. at L. ch. 20, pp. 73, 79, Section 15.

73 State v. Quarles, 13 Ark. 307; Higdon v. Heard, 14 Ga. 255; Ex parte Rowe, 7 Cal. 184; Wilkins v. Malone, 14 Ind. 153; People v. Kelly, 24 N. Y. 74; Emery's Case,

107 Mass. 172; Cullen v. Commonwealth, 24 Gratt. 624; Temple v. Commonwealth, 75 Va. 892; State v. Nowell, 58 N. H. 314; People v. Sharp, 107 N. Y. 427; Bedgood v. State, 115 Ind. 275.

7+ Counselman v. Hitchcock, 142

§ 128. Same Same-Act in relation to testimony before the Interstate Commerce Commission and in prosecutions under the Anti-trust Act.-The act of congress in relation to testimony before the Interstate Commerce Commission, approved February 11, 1893, declares: "That no person shall be excused from attending and testifying or from producing books, papers, tariff's, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, whether such subpoena be signed or issued by one or more commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of congress, entitled 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.

"Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements and documents, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission, shall be guilty of an offense, and

U. S. 574, 586 (35:1110); Boyd v. United States, 116 U. S. 616, 641 (29:748). Sec. 860 U. S. R. S. is as follows: "No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or

estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perJury committed in discovering or testifying as aforesaid." And see also, 15 U. S. Stat. at L. chap. 13, sec. 1.

upon conviction thereof by a court of competent jurisdiction, shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.” 75 And by act of February 25, 1903, like immunity is given to witnesses testifying or producing evidence in suits, proceedings or prosecutions under the interstate commerce, anti-trust, and other acts of congress." It has been held by the supreme court that, while the constitutional amendment protecting persons from being compelled to be a witness against themselves in criminal matters is justly regarded as one of the most valuable prerogatives of the citizen, yet its object is fully met by the immunity given in these statutes, and witnesses subpoenaed under them are compellable to answer," or produce the papers called for, as the case may be.78 This legislation protects witnesses from such use of their testimony as will result in their punishment for crime, or forfeiture of their estates; testimony given, or papers produced under the immunity secured by the statute presents scarcely a suggestion of an unreasonable search or seizure."

§ 129. The maxim Nemo tenetur seipsum accusare-Its history. The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the revolution in 1688, which resulted in the expulsion of the Stuarts from the British throne, and the erection of additional barriers for the protection of the English people against the exercise of arbitrary power, was not uncommon, even in England. While the admissions or confessions of a person charged with crime,

75 27 U. S. Stat. at L. chap. 83, pp. 443, 444.

76 32 U. S. Stat. at L. ch. 755, p. 904; Hale v. Henkel, 201 U. S. 43, 77 (50:652).

77 Brown v. Walker, 161 U. S. 591 (40:819); Hale v. Henkel, 201 U. S. 43, 77 (50:652); Nelson v. United States, 201 U. S. 92 (50: 673).

mission v. Baird, et al, 194 U. S. 25-47 (48:860); Hale v. Henkel, 201 U. S. 43, 77 (50:652); Nelson v. United States, 201 U. S. 92 (50:673).

Com

79 Interstate Commerce mission v. Baird et al, 194 U. S. 25-47 (48:860); Hale v. Henkel, 201 U. S. 43, 77 (50:652); Nelson v. United States, 201 U. S. 92 (50:673).

when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, and such admissions and confessions, when so voluntarily and freely made, have always been held admissible in evidence against the accused,. even in capital crimes, yet, the experience of mankind in the administration of criminal justice has shown that if an accused person be asked to explain his apparent connection with a crime under investigation, the questions put to him do with the greatest ease and facility assume an inquisitorial character, and there is great temptation on the part of his interlocutor to press him unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, and these tendencies made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made the denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional inhibition.80

so Brown v. Walker, 161 U. S. 591, 638 (40:819).

It would seem that no principle is more firmly fixed in English and American civilization and jurisprudence, than the principle that no person "shall be compelled in any criminal case to be a witness against himself." If constitutional provisions be evidence of national sentiment, then this principle is written upon the hearts of the American people; it is found not only in the federal constitution, but in the constitution of every state in the union.

It flows like a mighty current of life-blood through the heart of the nation. But it is suggested by a high authority that this principle should be abandoned. XXXIX Am. Law Rev. No. 4, 599601). It may be readily conceded that the Roman Civil law is the "finest system of written reason in the world," and a comparative study of the civil and common law would lead to an enrichment of our jurisprudence; but it may be safely affirmed that the examination and cross-examination of persons accused of

§ 130. Same-Test of admissibility of confessions.-In criminal trials, in the courts of the United States, whenever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution, commanding that no person "shall be compelled in any criminal case to be a witness against himself." This generic language of the amendment is but a crystalization of the doctrine of the common law as to confessions, well settled when the amendment was adopted, and in its application it is necessary to resort to the rules of the common law upon the subject, as expounded and formulated by the text writers and adjudicated cases. There can be no doubt that long prior to the Amercian revolution and the organization of the federal government, the doctrine that no person could be compelled to accuse himself of crime or testify against himself in a criminal case, had reached its full development in the common law, and was considered as resting on the law of nature, and was firmly imbedded in that system as one of its great and distinguishing attributes; and it was the purpose of the fourth and fifth amendments to perpetuate that great doctrine in our institutions, in the fullness of its integrity, free from the possibilities of future legislative change.

But whilst the constitution perpetuates the principle, it does not undertake to furnish a rule by which to determine what are voluntary confessions, and what are involuntary confessions: this, as above indicated, must be determined by a resort to the rules of the common law upon the subject, as formulated in the manner above stated.

It is clear that, in determining in any given case whether a confession is voluntary, and whether the proper foundation has been laid for its admission in evidence against the accused, is, not how far the confession tends to prove his guilt; such confession having been offered in evidence as a confession, and being admissible on that ground only, a consideration of its evidential weight and value cannot arise upon the issue of its admissibility. If, in the appellate court, the confession is found to have been illegally admitted in evidence, reversible

crime has been the instrument of more judicial murders than any

other contrivance invented by the ingenuity of man.