The opinion
Douglas, J.,
concurring. I am in limine with the vital question as to the defendant’s right of appeal. If he has no right of appeal it makes no difference what questions might be decided if the appeal were entertained. Under the facts *125 of this case and the principles of law applicable thereto, I think the defendant has a right of appeal.
In fact, under all the circumstances, we think this the proper and most convenient proceeding in the case at bar. It is true the defendant, properly so called as this is a criminal prosecution, might sue out a writ of habeas corpus, but this course might be liable to grave inconveniences. One Judge of the Superior Court might feel’ great hesitation in annulling the judgment of another Judge, especially in a matter so nearly affecting the integrity of the Court. If the writ were issued by a member of this Court returnable before himself the same hesitation might exist, though perhaps to a less degree; while to make the writ returnable before a full bench would be too cumbersome to ensure prompt and adequate relief, as is hereinafter shown. A writ of certi-orari might be equally inadequate. Much stress is laid upon the delay resulting from an appeal. A writ of certiorari would, and a writ of habeas corpus might, cause the same delay. It should be borne in mind that the defendant appeals at his peril. If this Court affirms the judgment of the Court below his sentence will remain in full force and effect. In any event, I think he is entitled to prosecute his appeal, and the fact that it will avail him nothing is no legal reason for its denial.
The Constitution (Article IV, section 8) says that “The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the Courts below, upon any matter of law or legal inference, * * * and the Court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts.” Section 945 of The Code is in the exact words of the said section of the Constitution. As far as I can see, no distinction is made either in the Constitution or the statute as to cases of contempt. “Any matter of law *126 or legal inference” are terms of most direct and comprehensive meaning, and, if they mean anything, mean what they say.
It must follow that in all cases of contempt where any question of law is involved, the defendant, for such he becomes when attached for contempt, is entitled to an appeal to this Court. The only possible ground upon which he can be denied an appeal is that of absolute necessity, and it is clear that such a principle can never extend beyond the necessity that alone brought it into existence. Necessiias non habet legem, or as it is perhaps more properly stated, necessiias vincii legem, is a maxim which, however beneficial in some cases, is in its ultimate tendency destructive of all law and therefore should be rarely invoked. I am not partial to maxims which tend to abridge the liberty of the citizen or to deprive him of the equal protection of the law.
I am aware of the distinction attempted to be made in some jurisdictions between civil and criminal contempts, but I must confess that this classification is by no means clear, and has not always been rendered clearer by the learning of the books. Learning is not always wisdom. I am also aware of the distinction created in this State between contempt and as for contempt, and the decisions of this Court that in the latter class of cases an appeal will lie, while it will not in the former. This ruling, which has no foundation in the statute, arises purely ex necessitate, and is based upon the inherent right of self-defense attaching to the Court as well as to the individual. Therefore the power of summary punishment can never exceed the limits of the necessity, and in dealing with the liberty of the citizen this necessity must be actual and not constructive. The individual has inherent rights as well as the Court, and it was primarily for the protection of those rights that Courts themselves were instituted. The old idea that the individual *127 is a mere atom of tbe State, having no rights except those that have been granted to him by the sovereign, has no application in this country. Plere the State is the creature of the citizen, who holds his personal rights inherently and inalienably.
We will freely admit that if the conduct constituting the contempt is such as to actually obstruct the business of 'the Court, as in Mott’s case, no appeal would lie, as the consequent delay would prevent the prompt action rendered absolutely necessary for the protection of the Court. But where a man creates no disturbance whatever, and is guilty of no act which can be construed into contempt beyond a respectful insistence upon a constitutional right, he is in our opinion entitled to an appeal by every just principle of law. What other protection can he have? It has been suggested that he might obtain a writ of “habeas corpus issued probably by one member of this Court before the full bench.” I am not aware of any such jDrovision of law; but suppose it were so, would it give him an adequate remedy? He would be compelled to go to jail until he could reach a member of this Court, and remain in jail until the next term of this Court if it were not then in session. Was it ever contemplated that the great prerogative writ of habeas corpus should be disposed of in any such manner ? What good would it do the defendant if. his petition were not heard until after the expiration of his term of imprisonment? So far I have relied upon the reason of the thing. “Reason,” says Coke, “is the soul of the law; the reason of law being changed, the law is also changed.” We think, however, that an examination of the statutes and the decisions of this Court will show that in this case reason and authority point to the same conclusion.
The contention of the State seems to be based entirely upon section 648 of The Code, apparently ignoring section *128 654, which provides that courts “shall have power to punish as for contempt (4) all persons summoned as witnesses in refusing or neglecting to obey such summons to attend, be sworn or answer as such witness.” Such refusal comes under section 648 only when it is “the contumacious and unlawful refusal to answer any legal and proper interrogatory.” To make a person guilty of contempt under that section, the question must be both legal and proper, and the answer both unlawful and contumacious. Admitting that the questions were all proper, and the defendant’s refusal to answer consequently unlawful, there is no evidence whatever that such refusal was contumacious. The Court beloAV evidently did not consider it so, because it fined the defendant one dollar. It is true that the provision of section 650 that “the Court shall cause the particulars of the offense to be specified on the record,” does not of itself give to the defendant the right of appeal; but it does give to this Court the means of ascertaining whether or not the appeal was properly taken. It is evident that any refusal of a witness to answer must necessarily be in the immediate presence of the Court, and yet when not contumacious it is punishable only as for contempt under section 654. The refusal of the witness to answer did not in any way tend to disturb the proceedings of the Court, or even necessarily cause a continuance of the case, as the State might have proceeded without his testimony. At most, it could only have caused such delay as results from any other appeal. He could cause the same delay by going to jail and applying for a writ of habeas corpus, as suggested in the contentions of the State; or he could cut the gordian knot by failing to attend. In the latter event he could be punished only as for contempt with the admitted right of appeal. I am assuming that the witness unlawfully refused to answer. If his refusal had been lawful and proper, then no power on earth should compel *129 him to answer. In In re Bonner, 151 U. S., 242 , tbe Supreme Court of tbe United States bas well said tbat “Tbe law of our country tabes care, or should take care, tbat not tbe weight of a judge’s finger shall fall upon any one except as specifically authorized.
A brief review of tbe cases relied upon by tbe State I think will sustain tbe view I entertain in this case. In State v. Woodfin, 27 N. C., 199 , 42 Am. Dec., 161 ; State v. Mott, 49 N. C., 449 , and Ex-parte Summers, 27 N. C., 149 , tbe offenses were committed in facie curiae, tbe two former being fights, and tbe last a positive refusal in contemptuous language to return process after tbe direct order of tbe Court. Scott v. Fishblate, 117 N. C., 265 , 30 L. R. A., 696, was a civil action for damages and did not involve tbe right of appeal. In tbe cases of In re Daves, 81 N. C., 72 ; In re Deaton, 105 N. C., 59 ; State v. Aiken, 113 N. C., 651 , and In re Robinson, 117 N. C., 533 , 53 Am. St. Rep., 596 , tbe appeal was entertained and the judgment of tbe Court below was reversed and set aside. In re Gorham, 129 N. C., 481 , tbe judgment was specifically affirmed. In re Daves, 81 N. C., 72 , this Court says, on page 75: “Tbe plaintiff insists tbat an appeal does not lie from a judgment imposing a penalty for contempt. This is true as to tbat class of con-tempts which are committed in tbe presence of tbe Court, or so near as to interfere with its business, and tbe reasons for which are justly set out by Nash, C. J., in tbe opinion in State v. Mott, 49 N. C., 449 . Rut in cases like tbe present, where tbe right to punish depends upon a 'willful disobedience’ of 'any process or order lawfully issued,’ tbe lawfulness of tbe power exercised is a proper subject of review in this Court.” Why does not this decision apply to tbe case at bar, where tbe right to punish for contempt under section 648 depends upon tbe “contumacious and unlawful” refusal of tbe witness to answer any “legal and proper interroga- *130 tory ?” The State in tbe case at bar, as the Court has done in some cases, lays great stress upon the reasons given by Nash, C. J., in State v. Mott. What are those reasons? This Court has well said in Walton v. Gatlin, 60 N. C., 310 : “When the stream becomes too muddy to see the bottom the surest way to find truth is to go up to the fountain head, that is, ‘to the reason and sense of the thing.’ ” In Mott’s case Nash, C. J., speaking for the Court, says (49 N. C., page 50): “Eor good reasons the law does not authorize an appeal in such cases. To constitute a contempt the act done must be in the presence of the Court, or so near thereto as to obstruct the administration of justice. Erom the nature of the offense it is difficult to see how another Judge can estimate the nature of the act. The evil requires prompt action to its removal. Let us suppose a case: A man comes into court and by his noisy behavior obstructs the business; the Judge orders him to be fined and imprisoned for the contempt ; the delinquent appeals to the Court above; the appeal of course annuls the judgment; but the individual remains in the court-house and still continues his disorderly conduct; the Court again interferes by a judgment of fine and imprisonment, and again the right of appeal is interposed, and so on, as long as the obstinacy and folly of the trespasser continues, to the entire suspension of the public business and in utter contempt of the judicial authority.” Do any of these reasons apply to the case at bar? If not, then why should we follow the decision in that case. as an authority ?
I come now to a consideration of the case upon its merits, and we find no difficulty in arriving at a conclusion. I do not see how the first question could tend to criminate the witness, and we might place our affirmance of the judgment upon his failure to answer it alone; but as he was asked all the questions at the same time, and the action of the Court below is founded upon his refusal to answer all *131 tbe questions, I deem it proper to consider them. Indeed, it would seem that the propriety of the last question is the real matter sought to be determined in this appeal. It certainly presents its most important phase.
I think that all the questions should have been answered by the witness, including the one involving his own participation, although it does not appear that the Oourt informed him of the protection afforded by the statute as clearly as perhaps he should have done.
The Constitution of this State, in section 11 of Article I, provides that: “In all criminal prosecutions every man has the right- to be informed of the accusation against him, * * * and not be compelled to give evidence against himself.”
The scope of this protection is explained by this Court in Smith v. Smith, 116 N. C., 386 , as follows: “We think the provisions of our Constitution ought to be liberally construed to preserve personal rights and to protect the citizen against self-incriminating evidence. It is conceded and settled that a single unlawful act of sexual intercourse is not a criminal offense, but the question presented is, would the admission by the witness of a single act tend to criminate him ? Our opinion is that it does, and that the witness ought not to be compelled to answer the question, for the reason that the admission may be the connecting link of a chain of evidence disclosing other facts and other circumstances leading to clear proof of a crime which would not have been known without the admission. The usual reply is that his admission cannot be used against him in any future prosecution, and that he is therefore protected. This fails to reach the mark, for although it cannot be used against the witness, it may be the means, the link by which other sufficient evidence has been discovered which could not have been done without the admission. No one knows what facts and secrets *132 are locked up in the bosom of a witness, and we think the true intent of the Constitution is that the witness shall not be compelled to disclose anything that may lead to criminal conduct without absolute protection against future prosecution.”
Section 1354 of The Code provides that: “Nothing in this chapter, except as provided in the preceding section, shall render any person compellable to answer any question tending to criminate himself.” Section 1353 has no bearing upon the question before us. Hence it follows that were it not for section 1215 of The Code the fourth question, and perhaps the second and third, would be incompetent under the laws as well as the Constitution of this State. Section 1215 is as follows: “No person shall be excused, on any prosecution, from testifying touching any unlawful gaming done by himself or others; but no discovery made by the witness upon such examination shall be used against him in any penal or criminal prosecution, and he shall be altogether pardoned of the offense so done or participated in by him.”
The constitutionality of this section depends upon whether it gives to the witness the full measure of his constitutional protection. • Its wording is not the best that might be selected to express its legal effect; but I think that it is sufficiently clear to justify our conclusion that it protects the witness from any prosecution or molestation of any kind on account of any offense concerning which he may be required to testify. Anything less than this would fail to give him adequate protection, and hence would fail to meet the constitutional requirement.
Whether the Legislature could grant pardons in analogy to the English Parliament is not before us; but there can be no doubt of its authority to pass acts of amnesty relating to certain classes of offenses. This power rests equally in reason and authority, its exercise being occasionally *133 demanded by dominating necessities of public policy. This is clearly recognized in the cases of State v. Blalock, 61 N. C., 242 , and State v. Keith, 63 N. C., 140 . The latter case, holding that an act of amnesty was not only valid, but created a vested right of immunity which could not be repealed even by a constitutional convention, was depided in 1869 by a court, all of whose members had been elected at the same election at which the Constitution itself was adopted, and one of whose Justices was a distinguished member of the convention 'which framed the Constitution. If the oft-cited principle of contemporaneous construction has any force, it is peculiarly applicable to that case, in which occurs the celebrated sentence: “These great principles are inseparable from American government and follow the American flag.” See also, State v. Morgan, 133 N. C., 743 .
It has been repeatedly held that the Eifth Amendment to the Federal Constitution is a restriction only upon the power of the United States, and not upon that of the States; but its provisions in this respect are so nearly identical with those of our own Constitution that the decisions thereon may well be cited in analogy. The said amendment provides that “No person shall be compelled in any criminal case to be a witness against himself.” Its scope was stated by Chief Justice Marshall when presiding at the‘trial of Aaron Burr, as follows: “Many links,” he says, “frequently compose that chain of testimony which is necessary to convict an individual of crime. It appears to the Court to be the true sense of the rule that no witness is compellable 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 every effectual purpose, accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. The fact of itself would be unavailing, but all other facts, without it, would be *134 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 which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description.”
The question as to how far Congress may deprive a witness of his constitutional privilege of refusing to- testify, by protecting him from the consequence of his testimony, has been fully and elaborately discussed by the Supreme Court in several cases, and especially in Boyd v. U. S., 116 U. S., 616 ; Counselman v. Hitchcock, 142 U. S., 547 ; and Brown v. Walker, 161 U. S., 591 .
Section 860 of the Eevised Statutes, taken from the Act of February 25, 1868 (15 Stat. U. S., 37, c. 13), was as follows: “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 estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture.”
In Counselman’s case the Court held that the witness could not be compelled to testify because the protection afforded by the statute was not equivalent to that of the Constitution. It says, on page 585: “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Eevised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the consti *135 tutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for tbe offense to wbicb the question relates. In this respect we give our assent rather to the doctrine of Emery’s case, in Massachusetts, than to that of People v. Kelly, in New York; and we consider that the ruling of this. Court in Boyd v. United States, supra, supports the view we take. Section 860, moreover, affords no protection against that use of compelled testimony which consists in gaining therefrom' a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party.”
In view of this decision, Congress passed the Act of February 11, 1893 (21 Stat. U. S., 443, c. 83). It was held in Brown v. Walker, 161 U. S., 591 , that the act deprived the witness of his constitutional right to refuse to answer, inasmuch as it afforded absolute immunity against prosecution, Federal or State, for the offense to which the question related. It is interesting to note that this case was decided by a bare majority of the Court, Justices Field, Shiras, Gray and White dissenting on the ground of the absolute sanctity of the constitutional provision.
While I am deeply impressed with the force of the dissenting opinions in that case, I feel compelled to hold, on grounds of the highest public policy, that the witness may be required to testify where the statute affords him in fact as well as in theory absolute immunity from prosecution or molestation of any kind on account of all transactions referred to in his involuntary testimony.
At the same time I feel the full responsibility of holding that in any case constitutional provisions securing the rights and liberties of the citizen can be changed or modified by legislative enactment. I realize the danger pointed out by the Supreme Court of the United States in Boyd v. U. S. *136 ( 116 U. S., 616 ), where it says: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta prin-cipiis.”
The above opinion, written tentatively before the opinion of the Court assumed its present shape, is now filed as an expression of my individual views. Speaking for myself, it is perhaps proper to add that my views of the protection afforded by Article I, section 11, of the Constitution of this State are somewhat broader than those generally adopted by the courts, though held by some distinguished jurists.. I believe there is something dearer to the human heart than the mere money involved in a fine, something more terrible even than going to jail. To compel a man to reveal the innermost secrets of his life that would destroy his reputation, render him infamous in the eyes of his fellow-men, or tend to break up a happy home, might inflict suffering upon the innocent as well as the guilty equal to any punishment known to the law. Tears shed by a faithful wife over a dishonored bed are bitterer than those over an honored grave.
Among the great jurists who have expressed similar views, I will quote but one extract from the dissenting opinion of Justice Field in Brown v. Walker, 161 U. S., 591 , where he *137 says, on page 631: “Tbe amendment also protects bim from all compulsory testimony wbicb would expose bim to infamy and disgrace, tbougb tbe facts disclosed might not lead to a criminal prosecution. It is contended, indeed, that it was not the object of tbe constitutional safeguard to protect tbe witness against infamy and disgrace. It is urged that its sole purpose was to protect bim against incriminating testimony with reference to tbe oifense under prosecution. But I do not agree that such limited protection was all that was secured. As stated by counsel of tbe appellant, ‘it is entirely possible, and certainly not impossible, that tbe framers of tbe Constitution reasoned that in bestowing upon witnesses in criminal cases tbe privilege of silence when in danger of self-incrimination, they would at tbe same time save bim in all such cases from tbe shame and infamy of confessing disgraceful crimes and thus preserve to bim some measure of self-respect.’ * * * It is true, as counsel observes, that ‘both tbe safeguard of tbe Constitution and tbe common law rule spring alike from that sentiment of personal respect, liberty, independence and dignity wbicb has inhabited tbe breasts of English-speaking people for centuries, and to save wbicb they have always been ready to sacrifice many governmental facilities and conveniences. In scarcely anything has that- sentiment been more manifest than in the abhorrence felt at tbe legal compulsion upon witnesses to make confessions which must cover tbe witness with lasting shame and leave him degraded both in bis own eyes and those of others. What can be more abhorrent * * * than to compel a man who has fought bis way from obscurity to dignity and honor to reveal crimes of which he bad repented and of which tbe world was in ignorance.’ ”
In tbe case at bar none of tbe questions tend to subject tbe ■witness to infamy or disgrace. However dangerous in its tendencies and demoralizing in its results, gaming is not gen *138 erally regarded as disgraceful in this State. I do not intend by this statement to justify gambling in the slightest degree, but my duty to the defendant requires me to state facts as they are, no matter how abhorrent to my personal sense of moral obligation.
I must confess some hesitation in conceding that the doctrine of statutory substitution can ever apply to constitutional guarantees, and I am induced to do so in this case only upon controlling principles of public policy, and upon the assurance that absolute immunity is guaranteed to the witness. It is significant that the case of Brown v. Walker was decided by a bare majority of the Court, Justices Field, Shiras, Gray and White dissenting in most vigorous terms, on the ground that no statute requiring the witness to testify could be, legally or in fact, the full equivalent of the constitutional protection of absolute silence. Justice Field says, on page 630: “The constitutional amendment contemplates that the witness shall be shielded from prosecution by reason of any expressions forced from him whilst he was a witness in a criminal case. It was intended that against such attempted enforcement he might invoke, if desired, and obtain, the shield of absolute silence. No different protection from that afforded by the amendment can be substituted in place of it. The force and extent of the constitutional guarantee are in no respect to be weakened or modified, and the like consideration may be urged with reference to all the clauses and provisions of the Constitution designed for the peace and security of the citizen in the enjoyment of rights or privileges which the Constitution intended to grant and protect. No phrases or words of any provision, securing such rights or privileges to the citizen, in the Constitution are to be qualified, limited or frittered away. All are to be construed liberally that they may have the widest and most ample effect. No compromise of phrases can be made by which one of *139 less sweeping character and less protective force in its influences can be substituted for any of them. The citizen cannot be denied the protection of absolute silence which he may invoke, not only with reference to the offense charged but with respect to any act of criminality which may be suggested.”
Justice Shiras, with the concurrence of Justices Gray and 'White, says, on page 610: “It is too obvious to require argument that when the people of the United States, in the Fifth Amendment to the Constitution, declared that no person should be compelled in any criminal case to be a witness against himself, it was their intention not merely that every person should have such immunity, but that his right thereto should not be divested or impaired by any act of Congress.”
Again the same Justices say, on page 627: “As already said, the very fact that the founders of our institutions, by making the immunity an express provision of the Constitution, disclosed an intention to protect it from legislative ,attack, creates a presumption against any act professing to dispense with the constitutional privilege.”
Again they say, on page 627: “If, indeed, experience has shown, or shall show, that one or more of the provisions of the Constitution has become unsuited to affairs as they now exist, and unduly fettered the courts in the enforcement of useful laws, the remedy must be found in the right of the nation to amend the fundamental law, and not in appeals to the courts to substitute for a constitutional guaranty the doubtful and uncertain provisions of an experimental statute.
“It is certainly speaking within bounds to say that the effect of the provision in question as a. protection to the witness is purely conjectural. No Court can foresee all the results and consequences that may follow from enforcing this law in any given case. It is quite certain that the witness is compelled to testify against himself. Can any Court be *140 certain that a sure and sufficient substitute for tbe constitutional immunity has been supplied by this act; and if there be room for reasonable doubt, is not the conclusion an obvious and necessary one ?”
They conclude by saying, on page 628: “But surely no apology for the Oonstitution, as it exists, is called for. The task of the courts is performed if the Constitution is sustained in its entirety, in its letter and spirit.
I am deeply impressed with the meaning of those words, and whenever I give my assent to any statutory substitution it is only upon the condition that it gives to the witness an equal protection which is always completely within his reach.