Page:Harvard Law Review Volume 5.djvu/45

29 THE PRIVILEGE OF WITNESSES. 29 afforded without any statute at all, in case the witness had been compelled to testify against his claim of privilege? 1 The Emery Case, supra, which held that the privilege of a wit- ness against being compelled to incriminate himself could not be removed by a statute merely providing that the testimony of the witness could not be used against him in any subsequent criminal proceeding, professes to distinguish the case of People v. Hackley, supra, by reason of a difference of the wording in the two State constitutions. The Massachusetts constitution provided expressly that no witness should be compelled to furnish evi- dence against himself, while the New York constitution had substantially the same provision as that of the Federal constitu- tion above referred to and commented on. But the distinction made seems a very unsubstantial one. The language of the Massachusetts constitution does not, it would seem, include any- thing more than common-law privilege; nor should the language of the New York Constitution, if it be construed to touch the privilege at all (and it is conceded in the Hackley Case that it should be so construed), include anything less. In truth, the question is one involving important and fundamental principles of personal right, and should be determined by the spirit, not the letter, of constitutional provisions. The discussion has thus far proceeded on the theory that the statute in question in some way has the effect of compelling a witness to give self-accusatory evidence. It does not in terms purport to do so, and it is not at all easy to see why it should have that effect. It appears on its face merely to prohibit a cer- tain sort of use of evidence when given, and not to relate at all to the compelling of evidence. Apparently the argument by which a provision compelling witnesses to give self-accusatory evidence is read into the statute is about as follows : The general rule is that all witnesses must furnish evidence called for from them. The exception is that they need not criminate themselves. The 1 It is interesting to note in this connection that modern English statutes, taking away the right of witness to refuse to give self-accusatory evidence, seem, as far as the writer has been able to ascertain from a hasty investigation, invariably to provide that the wit- ness shall not be tried for the offence to which the testimony relates (see 2 Taylor, Evidence (7th edn.), sect. 1455, and statutes there cited), showing, it would seem, that English constitutional law does not regard prohibiting the use of the evidence as a suffi- cient substitute for the privilege. See also Emery's Case, 107 Mass. 172 ; Commonwealth v. Cullen, 24 Gratt. (Va.) 624.