cases. Tre Scott, 1 Am. B. R. 49; 95 Fed. 816; in re Rosser, 2 Am. B. R. 755; 96 Fed. 305; in re Feldstein, 4 Am. B. R. 321; 103 Fed. 269.) On the other hand the Circuit Court of Appeals of the 9th Circuit, in Mackel v. Rochester (4 Am. B. R. 1; 102 Fed. 314), has held that the provision that no testimony given by the *bankrupt shall be offered in evidence against him in any criminal proceeding, grants him constitutional immunity against prosecution and penalty, and hence compels him to give any testimony relevant and material to the inquiry. But the opinion of Judge Morrow in this case is not satisfactory in that it does not pass upon the real question.

It will be noticed that this section 7a (9), after requiring the bankrupt to submit to an examination concerning his business, etc. provides that "no testimony given by him shall be offered in evidence against him in any criminal proceeding." In this respect it is similar to section 860, U. S. R. S. which provides that "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 his 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."

It was held in the celebrated case of Counselman v. Hitchcock, (142 U. S. 547), that the last quoted section does not take away the privilege given by the Fifth Amendment of the United States Constitution, which declares that "No person shall be compelled in any criminal case to be a witness against himself." It is true the constitution speaks of a "criminal case," but it was distinctly held in Counselman v. Hitchcock, which was a proceeding before a grand jury engaged in investigating and inquiring generally into certain alleged violations of the interstate commerce law, and in the language of Mr. Justice Blatchford, that" It is impossible that the meaning of the constitutional pro

vision can only be, that a person shall not be compelled to be a witness against himself in a 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."

By reason of the decision of the court in Counselman v. Hitchcock, Congress amended the Interstate Commerce Act in 1893, so as to make it provide that the witness shall have absolute immunity from prosecution regarding the subject-matter as to which he testifies or produces documentary evidence (27 Stat. at L. 443). It was under this amended statute that the case of Brown v. Walker (161 U. S. 591), upon which Judge Morrow relies in Mackel v. Rochester, was decided. It will be observed that the amended statute secures absolute immunity from prosecution, instead of merely providing that the testimony shall not be offered against witness in evidence.

It is an ancient principle of the law of evidence that a witness shall not be compelled in any proceeding to make declarations or to give testimony which will tend to criminate him or subject him to fines, penalties or forfeitures. (Rex v. Slaney, 5 Carr. & P. 213; 1 Greenlf. Ev. section 451; Wharton Crim. Ev. 9th ed. 461; Southard v. Rexford, 6 Cow. 254; People v. Maher, 4 Wend. 229.)

In a comparatively recent case in New York (People ex rel. Taylor v. Forbes, 143 N. Y. 219) the relator was adjudged guilty of contempt by the judge presiding at the trial term, for refusing to answer questions asked him before the grand jury held in conjunction with that court. The grand jury had been instructed by the court to institute an inquiry with the view of ascertaining who were guilty of the death of a certain person arising out of a “hazing” affair at Cornell University. The relator refused to tell who his room-mate was on the ground that it might tend to criminate him. The provision of the New

York Constitution is the same as that of the United States Constitution (N. Y. Const. article I, section 6). In overruling the conviction of the relator, O'Brien, J. in the Court of Appeals, after referring to the constitutional provision in question, says:

These constitutional and statutory provisions have long been regarded as safeguards of civil liberty, quite as sacred and important as the privileges of the writ of habeas corpus or any of the other fundamental guaranties for the protection of personal rights. When a proper case arises they should be applied in a broad and liberal spirit in order to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed. . . . The right of a witness to claim the benefit of those provisions has frequently been the subject of adjudication in both the Federal and State courts. The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions to prove his guilt or connection with any criminal offense of which he may then or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained. . . The question was fully discussed at an early day by Chief Justice Marshall on the trial of Aaron Burr, and every phase of it so completely explained and exhausted, that his views were followed in the subsequent decisions. A single quotation from the language used will illustrate the scope and extent of the immunity which the witness can lawfully claim. Many links frequently compose that chain of testimony which is necessary to convict an individual of a crime. It appears to the court to be the true sense of the rule that no witness is compelled to furnish any one of them against himself. It is certainly not only a possible, but a probable case, that a witness by disclosing a single fact may complete the testimony against himself, and to a very effectual purpose accuse himself as entirely as he would by stating.every circumstance which would be required for his conviction. That fact of itself would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own bosom he is safe, but draw it from thence and he is exposed to a prosecution. The rule that declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose an act of this description. All the leading authorities were elaborately reviewed in the recent case of Counselman v. Hitchcock (142 U. S. 547) in the Supreme Court of the United States. In that case the grand jury was engaged in the investigation of certain alleged offenses by railroad companies against the recent act of Congress for the regulation of interstate commerce, and the witness, a commission merchant and dealer in grain, refused to answer certain questions as to the tariff of rates allowed to him by some of the railroads, on the ground that it might tend to criminate him. The case in all its essential features was similar to this. and the court, sustaining the privilege contended for on behalf of the witness,

held that the object of the constitutional provision was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime, and that its meaning was that a witness is protected from any compulsory disclosure of the circumstances of his offense, or the source from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. This conclusion was reached, although there is a general Federal statute providing that in such cases the testimony given by the witness at the investigation shall not be given in evidence against him, subsequently, in any civil or criminal proceeding (U. S. R. S. § 860). It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness.”

In the constitutions of many of the States of the Union, such as Virginia, Massachusetts and New Hampshire, it is broadly provided that a witness shall not be compelled to accuse himself or to furnish evidence against himself, with no limitation to "criminal cases," as in New York and under the Federal Constitution. In speaking of this distinction, Mr. Justice Blatchford says, in Counselman v. Hitchcock, supra, page 602: "It is contended on the part of the appellee that the reason why the courts in Virginia, Massachusetts and New Hampshire have held that the exonerating statute must be so broad as to give the witness complete amnesty, is that the constitutions of those States give to the witness a broader privilege and exemption than is granted by the constitution of the United States, in that their language is that the witness shall not be compelled to accuse himself, or furnish evidence against himself, or give evidence against himself; and it is contended that the terms of the constitution of the United States, and the constitutions of Georgia, California and New York are more restricted. But we are of opinion that, however this difference may have been commented on in some of the decisions, there is really in spirit and principle, no distinction arising out of such difference of language.”

For decisions in these States, see Emery case (107 Mass. 172); State v. Nowell (58 N. H. 314); Temple v. Commonwealth (75 Va. 892); and cases cited in Counselman v. Hitchcock. If, then, the constitutional provision is broad enough to apply to proceed

Death or Insanity of Bankrupts.

[Ch. III.

ing in bankruptcy, section 7 (9) fails to afford the requisite constitutional protection in all cases. (But see In re Franklin Syndicate, 4 Am. B. R. 511; 103 Fed -, apparently following Mackel case.) But where the bankrupt files a voluntary petition and invokes the benefits of the bankruptcy law, he may not withhold his books of account upon the assertion that they contain criminating evidence or matter. So held by the District Court for the Eastern District of Wisconsin, In re Sapiro (1 Am. B. R. 296; 92 Fed. 340). This latter decision is analogous to the general rule that where one has voluntarily offered testimony upon a given point, he may not thereafter on cross-examination refuse to answer questions which are relevant to the testimony which he himself has offered.

The modern rule as to whether a question is incriminating or not seems to be that if to the witness' mind the answer sought may constitute a link in the chain of evidence sufficient to convict him, or put him in jeopardy, if other facts are shown, he may remain silent, unless it be perfectly clear that he is mistaken and that the answer cannot possibly injure him or subject him to the peril of prosecution. See People ex rel. Taylor v. Forbes, supra.

It is quite possible that Congress will amend the Act so as to give complete immunity.

The executive committee of the National Association of Referees in Bankruptcy, in their report of March, 1900, recommend that a bankrupt refusing to answer any question approved by the court shall be denied his discharge. But this remedy seems to be of doubtful constitutionality, as it would tend to punish one who simply insists upon a constitutional right, and so become an indirect violation of the constitution

Examinations of Third Parties.-Compare section 21 (a).

SEC. 8. Death or Insanity of Bankrupts.-a The death or insanity of a bankrupt shall not abate the proceedings, but the same shall be conducted and concluded in the same manner, so far as