Page:Harvard Law Review Volume 5.djvu/42

26 26 HARVARD LAW REVIEW. guage can be made to cover the privilege of a witness against being compelled to criminate himself, as well as the right of a defendant in a criminal case to refuse to testify in that case. This latter interpretation is the one placed upon the same language in the New York constitution by Judge Denio, in the case of People v. Hackley, and it is believed that it is the one the Supreme Court would adopt. The Supreme Court construes the provi- sions of the Bill of Rights broadly in favor of personal right and liberty. 1 The Bill of Rights was intended to cover all the principles of personal right established by the common law and the constitu- tional history of England, and it would certainly be strange if a principle so old, so ingrained in and so characteristic of the com- mon law, as that against compelling self-incriminatory evidence, should not be held to find complete expression and guaranty in some constitutional provision. The provisions above quoted, by the first interpretation, would cover only a special case of the principle prohibiting the compulsion of self-incriminatory evi- dence ; by the last it would cover the entire principle. It is cer- tainly most probable that this latter interpretation is the one the Supreme Court will adopt. 2 Let us assume, then, that the fifth amendment guarantees the privilege against compulsory self-accusatory evidence. Two ques- tions, then, arise: 1st. Can the privilege so guaranteed be abro- gated by statute? 2d. If it can, does the statute in question in fact abrogate it? As to the first question, it seems hard to see how the privilege, if guaranteed by constitutional provision, can be abrogated by statute, unless (as is possible) the privilege and the constitutional guaranty of it cover only the case where the witness runs the risk of punishment for the crime which his evi- dence would disclose. The weight of authority is that the privi- lege so guaranteed can be abrogated by statute if the statute affords the witness complete amnesty as to the crime concerning which he was compelled to testify. 3 % 1 See the Boyd case, 1 16 U. S., where the majority of the court held that a statute com- pelling a defendant in a criminal case to produce books, etc., violated the constitutional provision prohibiting unreasonable searches. 2 In support of this interpretation see People v. Hackley, 24 N. Y. 74; Kneeland v. State, 62 Ga. 395; State v. Quarles, 13 Ark. 307; U. S. v. Brown, 1 Sawyer, 531, 537- 3 Emery's Case, 107 Mass. 172; State v. Nowell, 58 N. H. 314; Commonwealth v. Kendrick, 78 Va. 490; but see State v. Warner, 13 Lea (Tenn.), 52.