rett v. Fish, 72 Vt. 18, 82 Am. St. Rep. 914, 47 Atl. 174, 51 L. R. A. 754; State v. Slamon, 73 Vt. 212, 87 Am. St. Rep. 711, 50 Atl. 1097; State v. Douglas, 20 W. Va. 770; State v. Cross, 44 W. Va. 315, 29 S. E. 527; Roszczyiala v. State, 125 Wis. 414, 104 N. W. 113; Bacon v. United States, 97 Fed. 35, 38 C. C. A. 37; Kerrch v. United States, 171 Fed. 366, 96 C. C. A. 258. To these may be added all those cited below in support of the doctrine that evidence is admissible though obtained by unlawful search and seizure.

III. The Reason of the Rule.

The underlying principle of all these decisions obviously is, that the court, when engaged in the trial of a criminal action, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence: People v. Adams, 176 N. Y. 351, 98 Am. St. Rep. 675, 68 N. E. 636, 63 L. R. A. 406. Such an investigation is not involved necessarily in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause, and consider incidentally a question which has happened to cross the path of such litigation, and which is wholly independent thereof. Such a practice, it is said, may be consistent with systems of administering justice in vogue in primitive communities, but does not comport with the judicial system of a civilized and enlightened people. The following are the reasons thus suggested, as logically arranged and expanded by Professor Wigmore in his treatise on Evidence:

1. Such a practice would be the trial of a public offense without an indictment or information; or an action for damages without the pleadings and process which are indispensable to a correct and orderly investigation,

2. It interrupts, delays and confuses the investigation in hand for the sake of a matter that is not a part of it.

3. It does this gratuitously and unnecessarily. The persons injured by the alleged wrongful act have not chosen to seek redress immediately and directly, at the right time and by the proper process, and there is clearly no reason to attend to their complaint in this indirect and tardy manner,

4. The rules of evidence are made to be the means of an indirect process of punishment, a purpose for which they were never intended. 5. Finally, it is not only anomalous to distort those rules to such an end, but it is manifestly improper and contrary to the fundamental principles of the Criminal Code to enlarge the fixed penalty of the law, that of fine or imprisonment by adding to it the forfeiture of a civil right through loss of the means of proving or establishing it; or, if the injured person has a right of action for damages, to add to the sum of such damages the same forfeiture.

These are practical reasons, suggested equally by considerations of utility and equity. Others might be advanced, having their roots in the principles of logic, and based upon the nature and properties of evidence and its purposes. Such, for example, is that heretofore referred to, that the object of evidence is to elicit truth, and it can never be said that the probative value of any evidentiary fact is affected in the smallest particular by the manner, or the means whereby the fact itself was obtained. Its credibility may be, and often is, affected by the method of its acquisition (State v. McKean,

36 Iowa, 343, 14 Am. Rep. 530); but, except as hereinafter stated, never the admissibility thereof.

IV. Its Limitations.

a. Constitutional Privileges.

1. Against Self-crimination. It is to be noted that the rule is stated in both the general and the special form. In some cases it is said that the admissibility of evidence is not affected by the manner in which it is obtained, and that the court will not form an issue to determine the question as to how obtained. In other cases, that the admissibility of evidence is not affected by the question as to whether it has been lawfully or unlawfully obtained, nor will the court halt in the progress of the litigation in chief to determine whether the evidence was obtained legally or illegally. However stated, it is the same principle involved, and it is in evidence wrongfully obtained, within the definition above outlined, if at all, that exceptions to the general rule are to be found.

It can hardly be said that evidence obtained in violation of the privilege against self-crimination constitutes an exception to the rule, for it is excluded, if at all, not because wrongfully obtained, but on the ground of public policy. Nor can involuntary confessions be so regarded. They are excluded because "testimonially untrustworthy," not because obtained in a wrongful or reprehensible manner. In so far as evidence obtained by tortious or criminal conduct is concerned, unless exempt as within a constitutional or statutory privilege, or within the rule as to involuntary confessions, it cannot be said to form an exception to the rule at all. Such evidence is always admissible, as being strictly within the principle enunciated in the Massachusetts and other like decisions, to the effect that the fact that the evidence was obtained by conduct, in itself ground for an action on the case for damages, or for a criminal prosecution, could not affect the admissibility of the evidence.

But while it cannot be said, with strict propriety, that evidence obtained in contravention of constitutional privilege or by involuntary confession constitutes an exception to the general rule, it may be said that the operation of the rule is limited thereby, and for this reason may be appropriately considered in this connection.

The fifth amendment to the constitution of the United States provides, among other things, that no person "shall be compelled in a criminal case to be a witness against himself." This provision operates strictly as a restraint upon the power of the federal government, and has no application to the states: Reed v. Rice, 2 J. J. Marsh. 44, 19 Am. Dec. 122; State v. Comer, 157 Ind. 611, 62 N. E. 452; Weimer v. Bunbury, 30 Mich. 301; In re Briggs, 135 N. C. 118, 47 S. E. 403; State v. Atkinson, 40 S. C. 363, 42 Am. St. Rep. 877, 18 S. E. 1021; State v. Brennan, 2 S. D. 384, 50 N. W. 625. But similar provisions are to be found in all the states of the Union except two-Iowa and New Jersey; and even if this were not so, the privilege is sufficiently guaranteed, in the absence of express legislative restrictions, by the ancient maxim of the common law that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime. This maxim was settled in early times in England, prior to the colonization of America, and was brought, along with other fundamental principles of the British

constitution and judicial system, by our ancestors to America, as a part of their birthright: Marshall v. Riley, 7 Ga. 367. “The constitutional restrictions are but the expression of the unwritten commonlaw rights which had come to be recognized in England in revolt against the thumbscrew and rack of early days": Thornton v. State, 117 Wis. 338, 98 Am. St. Rep. 924, 93 N. W. 1107.

Nor has the tenor or the scope of the privilege been changed. Greater permanence has merely been given to a traditional rule. The constitutional provisions are a recognition and not a creation, the purpose being not to codify the details of the rule so transmitted, or to alter in any respect its known bearings, but merely to describe it sufficiently for identification as a principle, and perhaps to impose a restriction upon the legislative and executive branches of the government for the purpose of neutralizing any future tendency that might arise to negative the ancient rule. However this may be, or whatever the purpose of the constitutional expression, it is well understood that while it neither limits nor extends the common-law rule, it has given to that rule a sanctity and a permanence previously wanting. That "which in England was a mere rule of evidence became clothed in this country with the impregnability of a constitutional enactment": Levy v. Superior Court, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 811. But "No one, be he witness or accused, can pretend to claim it beyond the scope of the common law": State v. Quarles, 13 Ark. 307.

The difference in the phrasing used in the various state constitutions, and in the federal instrument, creates no distinction in scope or limit, and gives rise to no necessity for separate construction. "There is really, in spirit and in principle, no distinction arising out of such difference of language": Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. Rep. 195, 35 L. ed. 1110.

The investigator may therefore expect to find the rule of constitutional construction and the rule of evidence so far identical that similar tests control in both. In the leading case of State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A., N. S., 762, 9 Ann. Cas. 648, as well as in many others, the court clearly assumed the principle that the privilege of the constitution against self-crimination, then and so often invoked for the exclusion of evidence otherwise pertinent to the issue, "is nothing more than a statement of the common-law rule of evidence, and guarantees no greater privilege than that all persons, whether parties or extraneous witnesses, shall be free from compulsion by legal process to give self-incriminating testimony." That this is the true principle is fully established by the precedents of the common law, as gleaned, not only from the cases themselves, but from numerous treatises upon the history and policy of the ancient maxim put forth by contemporaneous writers. These precedents and many interesting extracts from some of the treatises referred to are collected in Wigmore on Evidence, section 2183 et seq. In State v. Fuller, 34 Mont. 12, 85 Pac. 369, 6 L. R. A., N. S., 762, 9 Ann. Cas. 648, the doctrine above expressed was further expanded, and it was said, in effect, that the scope of the privilege is the scope of the ancient rule against testimonial compulsion, and that in both the protection afforded is limited to disclosures sought by legal process against an accused person as a witness. The privilege guaranteed by the constitution "has uniformly received from the courts a construction which would give the citizen protection as broad as

that afforded by the common-law principle from which they were derived": State v. Davis, 108 Mo. 666, 32 Am. St. Rep. 640, 18 S. W. 894. Again: "The guaranty of the constitution, that no person accused of crime shall be compelled to give evidence against himself, corresponds to, and, is drawn from, the maxim of the common law, Nemo tenetur seipsum accusare,' and it forever removes from the sphere of judicial investigations any and all compulsion of persons accused of crime, either by subjecting them to physical torture or to inquisitorial examinations, to which they have been subjected in some countries": Shields v. State, 104 Ala. 35, 53 Am. St. Rep. 17, 16 South. 85. The phrase "inquisitorial examination" may be said to have had a well-defined signification in the countries here referred to. It cannot, of course, at this time in the political history of those countries, possess any such significance. As now understood, it may include all of the usual processes by which confessions of an involuntary character or incriminating admissions or statements are wormed out of accused persons by artifice or fraud, or by which they are forced by extortionate methods, by attacks upon their known weaknesses or directed to their self-control, to accuse themselves of crime, or to give evidence against themselves, or furnish information which may be used for their conviction of crime. As will hereafter more fully appear, all, or nearly all, of such evidence so obtained is admissible, being obtained contrary to and in disregard of the forms of law, and of legal process-in consequence of the unlawful acts of private individuals, and not as a result of lawful regulations and practices. The constitutional privilege against self-crimination has no application to the unlawful acts of individuals: Lawrence v. State, 103 Md. 17, 63 Atl. 96.

The privilege as well as the rule includes protection from the necessity of producing documents or chattels in response to a subpoena duces tecum, or other and equivalent form of process, treating him as a witness, or the articles or chattels as subjects of evidence, "because at any time he might be called upon to establish the identity, authenticity or origin of the article produced": State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A., N. S., 762, 9 Ann. Cas. 648. "In pursuance of the policy of construction, it has become fully established that the prohibition against one's being compelled to be a witness against himself should not be limited to exclusion of merely oral statements against himself; that if the link in the evidence, which, under the language of Chief Justice Marshall, he could not be required to furnish, was to be furnished by some fact, document, or property which he had a right to hold secret, the mantle cast about him by the constitution was as much rent by requiring him to disclose that secret fact otherwise as by word of uth": Thornton v.

State, 117 Wis. 338, 98 Am. St. Rep. 924, 93 N. W. 1107. The privilege may therefore be expressed as follows: An accused person cannot be compelled by process directed to him as a witness to furnish evidence against himself, either in the form of oral statements which he is coerced into making, or in that of papers or chattels of any description capable of being made the subject of evidence, which he has the right to hold secret, in the production of which he is coerced into doing some positive, overt act. Beyond this the privilege does not extend.

The first prerequisite is compulsion. In order to bring evidence within the constitutional restriction it must be produced under comAm. St. Rep., Vol. 136-10

pulsion. The idea of compulsion or coercion is expressed in all the varying phraseology of the different state constitutions, and is always present in statements of the common-law rule. The degree of compulsion is said to be that which robs the accused of volition: Barton v. State, 4 Ga. App. 649, 62 S. E. 99. This language was used with respect to the privilege against unreasonable searches and seizures, but is unquestionably applicable here. The attitude of the accused must preclude the exercise of volition, otherwise it is not sufficient. In Moss v. State, 146 Ala. 686, 40 South. 340, the accused person was requested to take off his shoes for inspection, no threats being used or inducements offered, and it did not appear that he offered any objection. The evidence was held to be admissible and not within the privilege. In State v. Taylor, 202 Mo. 1, 100 S. W. 41, evidence given before the grand jury without the exemption being claimed was held not within the privilege. So if the testimony or the production of the evidence is volunteered, it is not exempt. Thus in Terry v. State, 90 Ala. 653, 8 South. 664, the defendant, after arrest, requested the officer to take him into a room and take his pistol and knife. The evidence was admitted. The privilege claimed here was that against unreasonable search and seizure, but the principle is manifestly the same in both cases.

If the compulsion is of such a character as to be inconsistent with the exercise of volition by the accused person, the evidence is within the privilege. Thus in State v. Newcomb, 220 Mo. 54, 119 S. W. 405, the defendant was compelled by an order of court to submit to a physical examination, in the presence of the sheriff who had him in custody. The evidence was held inadmissible. In Davis v. State, 4 Ga. App. 274, 61 S. E. 132, defendant, accused of purloining money, consented to a search for the same. While being searched he attempted to conceal a pistol, but the same was disclosed by force and without his consent. Evidence so obtained was held inadmissible as being within the privilege. He consented to the search for the money, but not for the pistol: Blum v. State, 94 Md. 375, 51 Atl. 26, 56 L. R. A. 322; Wilkinson v. State, 77 Miss. 705, 27 South. 639; Wilson v. State, 41 Tex. Cr. App. 115, 51 S. W. 916; McKnight v. United States, 115 Fed. 972, 54 C. C. A. 358.

The question of compulsion often arises in connection with the application of the privilege in efforts to obtain evidence of guilt by the comparison of footprints with the feet of the accused. It is well settled that an accused person cannot be required by any legal process to assist against his will in making such a comparison without violating his constitutional privilege against self-crimination: Morris v. State, 124 Ala. 44, 27 South. 336; Day v. State, 63 Ga. 667; Evans v. State, 106 Ga. 519, 71 Am. St. Rep. 276, 32 S. E. 659 (see monographic note); Dunwoody v. State, 118 Ga. 308, 45 S. E. 412; Stokes v. State, 5 Baxt. 619, 30 Am. Rep. 72. Contra, State v. Graham, 75 N. C. 256; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595. But the shoes of the accused may be taken from his possession, with or without his consent, and the comparison may be made by another person, who may testify to the result of such comparison, the accused not being required to do any positive act in connection therewith: Morris v. State, 124 Ala. 44, 27 South. 336; Davis v. State, 131 Ala. 10, 31 South. 569; State v. Arthur, 129 Iowa, 235, 105 N. W. 422; State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A., N. S., 762, 9 Ann. Cas. 648; People v. Van Wormer, 175 N. Y. 188, 67 N.