dissenting Justices in Brown v. Walker, 161 U. S. 591, in which the majority held that immunity granted to a witness before the Interstate Commerce Commission deprives him of the right to refuse to answer. The bare possibility that by a disclosure such a witness may be subjected to the criminal laws of some other sovereignty, and that he may be subjected to the expense and annoyance of pleading his immunity by way of confession and avoidance, notwithstanding the law has given him immunity from prosecution therefor, is not sufficient to justify his refusal to answer after immunity has been granted him.

§ 35. Spies v. Illinois Jurisdiction to review judgment of highest court of a state in a criminal case. Petition for writ of error in this case, after citing section 709 of Revised Statutes, averred that the following federal questions were involved and presented by it: "First, Petitioners challenged the validity of the statute of Illinois, under and pursuant to which the trial jury was selected and impaneled, on the ground of repugnancy to the Constitution of the United States, and the state court sustained the validity of the statute. Second, Petitioners asserted and claimed, under the Constitution of the United States, the right, privilege and immunity of trial by an impartial jury and the decision of the state court was against the right, privilege and immunity so asserted and claimed. Third. The State of Illinois made, and the state court enforced against petitioners, a law (the aforesaid statute) whereby the privileges and immunities of petitioners as citizens of the United States were abridged, contrary to the Fourteenth Amendment of the Federal Constitution. Fourth. Upon their trial for a capital offense, petitioners were compelled by the state court to be witnesses against themselves, contrary to the provisions of the constitution of the United States, which declare that 'No person shall

3-123 U. S. 131.

Due Process-6

be compelled in any criminal case to be a witness against himself,' and that 'no person shall be deprived of life or liberty without due process of law.' Fifth. That by the action of the state court in said trial, petitioners were denied the equal protection of the laws, contrary to the guaranty of the said Fourteenth Amendment of the Federal Constitution." In dismissing the petition the court held that the first ten amendments were intended solely as limitations upon the Federal government and not upon those of the states; that "when, as in this case, application is made to us on the suggestion of one of our number, to whom a similar application had been previously addressed, for the allowance of a writ of error to the highest court of a state under Section 709 of the Revised Statutes, it is our duty to ascertain not only whether any question reviewable here was made and decided in the proper court below, but whether it is of a character to justify us in bringing the judgment here for re-examination. In our opinion, the writ ought not to be allowed by the court, if it appears upon the face of the record that the decision of the federal question which is complained of was so plainly right as not to require argument, and especially if it is in accordance with our well considered judgments in similar cases;' that when the application is based on the ground that a statute of a state as construed by the state court deprived petitioners of a trial by an impartial jury, this court will consider only the rulings on the challenges to the jurors who actually sat at the trial; disallowance of challenge does not prejudice defendants who have peremptory challenges remaining; a right to challenge is right to reject, not to select jurors; that where the challenge is on the ground that the juror had formed an opinion, it must appear clearly that upon the evidence, the trial court should have found that he had formed such an opinion that he could not be considered in law impartial; that a statute is constitutional which provides that a juror shall not be disqualified simply by reading

newspaper articles; that it could not be said that the state had unlawfully denied a trial by an impartial jury to one accused of crime, when it appeared upon the trial that a part of the jurors had formed opinions based upon newspaper articles concerning the truth of which they had expressed no opinion after they had stated on oath that they could try the case upon the evidence presented, regardless of such opinion; that the plea that the defendants, who were foreign born, were denied by the trial court rights guaranteed by treaty can not be heard for the first time in this court; that the extent and character of the cross examination to which the accused subjects himself when he appears as a witness in his own behalf, is purely a question of state law; that the objection that the defendants were not actually present in the state court when sentence was pronounced can not be made for the first time in this court, when the record attests the fact that they were present; that an objection, not made in the court below, to the use in evidence of a letter on the ground that it was obtained by an unlawful search and seizure, can not be heard for the first time in this court, that to give this court jurisdiction by reason of the denial by a state court of any right or immunity set up under the Federal Constitution, it must appear from the record that such right or immunity was set up in such court, at the time and in the manner which the law directs.

In this case the contention was made that the privileges and immunities of citizens of the United States embrace the rights protected by the first eight amendments. While the court did not deem it necessary to pass upon that contention it referred to in this way: "It was contended, however, in argument that 'though originally the first ten amendments were adopted as limitations on federal power, yet in so far as they secure and recognize fundamental rights-common-law rights-of the man, they make them privileges and immunities of the man as a citizen of the United States, and can not now be

abridged by a state under the Fourteenth Amendment. In other words, while the ten amendments as limitations on power only apply to the Federal Government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten amendments had limited federal power.' It is also contended that the provision of the Fourteenth Amendment which declares that no State shall deprive 'any person of life, liberty, or property without due process of law,' implies that every person charged with crime in a State shall be entitled to a trial by an impartial jury and shall not be compelled to testify against himself."

§ 36. Counselman v. Hitchcock-Broad construction of Fifth Amendment in favor of refusal to testify. In the case in question it was held that the privilege of the Fifth Amendment extends to any criminal proceeding before a grand jury, that the privilege given to every one by the Constitution, that he shall not be compelled to be a witness against himself in any criminal case, is not taken away by section 860 of the Revised Statutes, which provides that the evidence of a person shall not be used against him in any proceeding for a crime, or penalty, or forfeiture. The court said: "It is broadly contended on the part of the appellee that a witness is not entitled to plead the privilege of silence, except in a criminal case against himself; but such is not the language of the Constitution. Its provision is that no person shall be compelled in any criminal case to be a witness against himself. This provision must have a broad construction in favor of the right which it was intended to secure. The matter under investigation by the grand jury in this case was a criminal matter, to inquire whether there had been a criminal violation of the Interstate Commerce Act. If Counselman had been guilty of the matters

4-142 U. S. 547.

inquired of in the questions which he refused to answer, he himself was liable to criminal prosecution under the Act. The case before the grand jury was, therefore, a criminal case. The reason given by Counselman for his refusal to answer the questions was that his answer might tend to criminate him, and showed that his apprehension was that, if he answered the questions truly and fully (as he was bound to do if he should answer them at all), the answers might show that he had committed a crime against the Interstate Commerce Act, for which he might be prosecuted. His answers, therefore, would be testimony against himself, and he would be compelled to give them in a criminal case. It is impossible that the meanings of the constitutional provision can only be, that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard."

§ 37. Simmons v. U. S.5-Right of judge to discharge jury during trial and to express opinion on facts. In the case in question it was held that the court may discharge the jury during trial when it appears that by reason of facts, existing when the jurors were sworn but not then known to the court, or by reason of influences to which the jurors were subjected during the trial, they or any of them were imbued with such prejudices as to render them incapable of impartiality between the government and the accused; that when a jury in a criminal case is discharged under such circumstances, the defendant may be put on trial before another jury, without being subject to the double jeopardy forbidden by the Fifth Amendment. In

5-142 U. S. 148.