ficiary of both, and also liable to the pains and penalties of both. He that sells whiskey must comply with both state and federal laws, and a conviction or acquittal under the laws of either is no impediment or safeguard to prosecution from and by the other. One who sells whiskey without taking out either state or federal license is liable to prosecution by both governments.

The Courts have held, in re Boggs, 45 Federal, 475; U. S. vs. Barnhart, 22 Federal, 290, Fox vs. Ohio, 5 Howard, U. S., 434; Moore vs. Illinois, 14 Howard, U. S., 20, that the jeopardy clause in the Federal Constitution is not a limitation upon any state government, but I do not understand such holding to mean that if one were put in jeopardy twice by the state machinery, that he would thereby be precluded from raising the question. While the jeopardy clause in the Federal Constitution was doubtless intended to relate to trials in the Federal courts, I am sure that the constitutional guarantee could be successfully relied upon by a citizen of a state, if the effort were made to place him in jeopardy twice by the state government.

It will be borne in mind that a former conviction or acquittal must be pleaded, and the protection is as ample whether the former trial resulted in a conviction or an acquittal. United States vs. Wilson, 7 Peters, 159; United States vs. Ball, 163 U. S., 662; ex parte Glenn, 111 Federal, 261.

§ 6a. Identity of Offense Must be Shown. Louie vs. U. S., 218, Fed. 36.

§ 7. Witness Against Self. That clause of Amendment V., which declares that no person shall be compelled in any criminal case to be a witness against himself, is not limited to the defendant. It is a privilege that can be claimed by any witness. Counselman vs. Hitchcock, 142 U. S., 562; U. S. vs. Collins, 145 Federal, 711; in re Hess, 134 Federal, 111; United States vs. Praeger, 149 Federal, 484; Hale vs. Henkel, 201, U. S., 67; Jack vs. Kansas, 199 U. S., 381; Burrell vs. Montana, 194 U. S., 578; Ballman vs. Fagin, 200 U. S., 195; Edelstein vs. United States, 149 Federal, 642; United States vs. Simon, 146 Federal, 92; in re Briggs, 135 N. C., 122; U. S. vs. Price, 163 F., 904.

There is nothing more barbarous than to compel disclosures which will degrade and convict the person so compelled. Voluntary appearance no violation or deprivation of constitutional guarantee, Pendleton vs. U. S. 216 U. S. 305. See also sec. 20.

Section 860 of the Revised Statutes of the United States provides that no pleading of a party nor any discovery or evidence obtained from a party or a 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. An interesting case, showing the extent of the doctrine and the care with which the Courts have preserved it, is McKnight vs. the United States, 115 Federal, 981. In that case, the Circuit Court of Appeals for the Sixth Circuit condemned as unconstitutional a demand by the District Attorney of the defendant for the original of a paper in evidence.

As to immunity from prosecution because of testimony before Grand Jury, see U. S. vs. Heike, 175 Fed., 852. When such is plead in bar burden is on the defendant, for discussion thereon see same case.

$7a. Continued.-See Section 39a. Section 860 of the Revised Statutes was repealed by the Act of May 7, 1910, Chapter 216, 36 Stats. L. 352, and the protection originally afforded by it comes now directly from the fourth and fifth amendments to the Constitution of the United States. fact Section 860 was narrower in its protection than are the amendments. American Lithographic Co. v. Werckmeister, 221 U. S. 603.

In

The Supreme Court of the United States in re Harris, 221 U. S. 274, determined in substance that a bankrupt is not deprived of his Constitutional right not to testify against himself by an order requiring him to surrender his books to the duly authorized receiver.

This decision was made in the face of facts which were, in substance, that the bankrupt had declined to testify concerning a certain written statement of his assets and liabilities, on the ground that it might tend to incriminate him, and he also refused to produce his books and made oath

that the books contained evidence that might tend to criminate him. The bankrupt relied upon the fifth amendment and Counselman v. Hitchcock in 142 U. S. 547, but the Court said "If the order to the bankrupt standing alone infringed his Constitutional rights, it might be true that the provisions intended to save them would be inadequate and nothing short of statutory immunity would suffice. But no Constitutional rights are touched. The question is not of testimony, but of surrender-not of compelling the bankrupt to be a witness against himself in a criminal case, present or future, but of compelling him to yield possession of property that he no longer is entitled to keep. If a trustee had been appointed, the title to the books would have vested in him by the express terms of Section 70 and the bankrupt could not have withheld possession of what he no longer owned on the ground that otherwise he might be punished. That is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against one's self is not a right to appropriate property that may tell one's story. As the bankruptcy court could have enforced title in favor of the trustee, it could enforce possession ad interum in favor of the receiver, Section 2. In the properly careful provision to protect from use of the books in aid of prosecution, the bankrupt got all that he could ask."

In the above case the Supreme Court merely decides that a bankrupt may not retain possession of his books, the title to which is vested in his trustee, on the ground that they contain matters which would subject him to criminal prosecution, but the decision does not lessen in any degree the protection of the amendments of the Constitution about which we are talking. In other words, having secured such books, from which the sovereignty would gather data to support a prosecution against the bankrupt, such sovereignty would be precluded from the use of such testimony on the ground that the defendant was forced to produce the same.

In U. S. v. Rhodes, 212 Fed. 518, it was held that the law is well settled that the Constitutional provision that no man shall be compelled to be a witness against himself enables a person, under ordinary circumstances, to refuse not only to give oral testimony, but to produce his books and papers, on the ground that they would tend to incriminate him. Boyd v. U. S. 116 U. S. 616. And it is held that a bankrupt, as

well as any other person, is entitled to the protection of such Constitutional provision. In re Canter & Cohen, 117 Fed. 356; in re Dow's Estate, 105 Fed. 889. But evidence proposed to be used in a perjury prosecution against a bankrupt secured by the force of the bankrupt statute is not permitted by law to be so used, under the Constitutional provision referred to, as well as by that of the bankrupt law. In re Harris, 164 Fed. 292.

Sub-division 9 of Section 7 of the Bankrupt Act of 1898 and the immunity afforded by it are not applicable to a prosecution for perjury committed by a bankrupt when examined under it. The Constitutional guaranty of the fifth amendment does not deprive the law-making authority of the power to compel the giving of testimony, even though the testimony, when given, may serve to incriminate the witness, provided complete immunity be accorded. The sanction of an oath and imposition of punishment for false swearing are inherent parts of the power to compel giving testimony and are not obviated by immunity as to self-incrimination. The immunity afforded by the fifth amendment relates to the past; it is not a license to the person testifying to commit perjury either under the provisions as to the giving of testimony in Section 860 of the Revised Statutes or of the Bankruptcy Act of 1898. The provisions in the Bankruptcy Act compelling testimony do not confer an immunity wider than that conferred by the Constitution. Glickstein v. U. S. 222 U. S. 139.

The Glickstein case was a prosecution for perjury committed by the defendant upon his examination before the first meeting of his creditors, and the proposition that the Supreme Court announces is merely that Congress had a right to compel the bankrupt to disclose all matters relating to his business, but to disclose them truthfully, and if he saw fit to perjure himself upon such disclosure, he could be made to suffer the penalty of a prosecution for perjury. Had he testified upon such forced examination about facts that were the truth, such testimony could not thereafter have been used against him in either a civil or a criminal cause for the reason that the testimony was not voluntary.

To the same effect is the decision in Dreier v. U. S. 221 U. S. 394, which was a contempt proceeding to require Dreier to produce certain books of a corporation which were in his

possession and which he refused to produce on the ground that they would incriminate him. The court held that Dreier was not entitled to refuse the production of the corporate records. By virtue of the fact that they were the documents of the corporation in his custody and not his private papers, he was under obligation to produce them when called for by the proper process. See also Wilson v. U. S. 221 U. S. 361. Hale v. Henkel, 201 U. S. 43.

In Cameron v. U. S. 192 Fed. 548, the Circuit Court of Appeals for the Second Circuit held that Section 860 shall not exempt a bankrupt from prosecution for perjury in giving evidence in his bankruptcy proceedings, nor does it prevent the introduction, in support of such a charge, of the false statement and so much of the other part of the accused's testimony as may be necessary to make the charge intelligible.

In Powers v. U. S. 223 U. S. 303, the Supreme Court held that when the accused voluntarily becomes a witness in his own behalf before a commission it is not essential to the admissibility of his testimony that he be first warned that what he says may be used against him and it is of no avail, after he has testified voluntarily and understandingly, to thereafter make a motion to exclude his testimony by way of a privilege under the fifth amendment, because the defendant voluntarily testifying waives his privilege and may be fully cross-examined as to the testimony given.

The President cannot compel one to accept a pardon. A pardon to be effective must be accepted, and the tender of a pardon does not destroy the privilege of a witness against self incrimination. He may reject the pardon and refuse to testify on the ground that his testimony may have an incriminating effect. Burdick v. U. S. 236 U. S. 79 overruling U. S. v. Burdick, 211 F. 493.

Interstate Commerce Commission has power to compel attendance and testimony of witnesses, and witness has immunity under Act February 11, 1893, even though government does not inquire of him whether he claims privilege. This question raised on demurrer, U. S. v. Skinner, 218 F. 871.

§ 8. Amendment VI. of the Constitution means a trial by a common law jury, which consisted of twelve men, Maxwell vs. Dow, 176 U. S., 586; Thompson vs. Utah, 170