It is the duty of this court to refrain from passing upon the
constitutionality of an act of Congress when the interests of the
party attacking it do not entitle him to raise the question. P.
250 U. S.
that witnesses subpoenaed in a grand jury
investigation of possible violations of the Corrupt Practices Act
of June 25, 1910, as amended, and of possible perjury in connection
therewith, had no standing to question the power of Congress, under
Art. I, § 4, of the Constitution, to enact provisions for
regulation and control of primary elections of candidates for the
office of United States Senator. P. 250 U. S.
Under the Fifth Amendment and the legislation of Congress, a
Page 250 U. S. 274
grand jury has a broad power of investigation and inquisition;
the scope of its inquiries is not to be narrowly limited by
questions of propriety or forecasts of probable results; the
examination of witnesses need not be preceded by a formal charge
against a particular individual, and witnesses, duly subpoenaed,
must attend and answer the questions propounded in the inquiry,
subject to the right to be protected from self-incrimination, and
excluding matters specially privileged by law. P. 250 U. S.
A witness summoned to give testimony before a grand jury in the
District Court is not entitled to refuse to answer, when ordered by
the court, upon the ground that the court and jury are without
jurisdiction over the supposed offense under investigation. P.
250 U. S.
253 Fed. Rep. 800, affirmed.
The cases are stated in the opinion.
Page 250 U. S. 276
MR. JUSTICE PITNEY delivered the opinion of the court.
Three of these cases come here on writs of error, the other
three on appeals. The writs bring up final orders adjudging
plaintiffs in error guilty of contempt of court because of their
refusal to obey an order directing them to answer certain questions
asked of them before a federal grand jury, and committing them to
the custody of the United States marshal until they should comply.
The appeals bring under review final orders discharging writs of
habeas corpus sued out by appellants to review their detention
under the original orders of commitment and remanding them to the
custody of the marshal. Blair, Templeton, and Phillips are
plaintiffs in error, as well as appellants.
It appears that, in October, 1918, the federal grand jury of the
Southern District of New York was making inquiry concerning
supposed violations of § 125 of the Criminal Code (relating to
perjury) and of the so-called Corrupt Practices Act of June 25,
1910, c. 392, 36 Stat. 822, as amended, in connection with the
verification and filing in that district of reports to the
Secretary of the Senate of the United States made by a candidate
for nomination as Senator at a primary election held in the State
of Michigan on August 27, 1918. Phillips was served with a subpoena
requiring him to appear and testify before this grand jury. Blair
Page 250 U. S. 277
were subpoenaed to appear and testify and also to produce
certain records, correspondence, and other documentary evidence.
All were served in the State of Michigan. They appeared before the
grand jury in response to the subpoenas, were severally sworn, and
were examined by counsel for the United States. Each witness, after
answering preliminary questions, asked that he be informed of the
object and purpose of the inquiry and against whom it was directed,
whereupon he was informed by counsel for the United States that the
inquiry was not directed against him (the witness). After this,
each witness read to, and left with, the grand jury a typewritten
statement to the effect that, upon advice of counsel, he refused to
answer any questions pertaining to the matter under inquiry for the
reason that the grand jury and the court were without jurisdiction
to inquire into the conduct of a campaign in Michigan for the
primary election of a United States Senator; that the Federal
Corrupt Practices Act as amended was unconstitutional, and that no
federal court or grand jury in any State had constitutional
authority to conduct an inquiry regarding a primary election for
United States Senator. Thereupon, each witness was asked by counsel
for the United States whether he refused to testify for the reason
that to do so would incriminate him, to which he made no other
answer than to refer to the reasons for his refusal as set forth in
The grand jury made a written presentment of these facts to the
district court, with a prayer that the parties named might be dealt
with as contumacious witnesses.
Upon the coming in of the presentment, the witnesses appeared in
person and by counsel in opposition to the petition of the grand
jury, and contended that the Corrupt Practices Act as amended was
unconstitutional and void, referring to the opinion of this court
in United States v. Gradwell, 243 U.
, 243 U. S. 487
A hearing was had which
Page 250 U. S. 278
went to the merits; the minutes of the grand jury were read and
made a part of the presentment, and the matter was fully argued. At
the conclusion of the hearing, the court directed the witnesses to
answer the questions propounded to them before the grand jury. They
were again called, were asked the same questions, and again refused
to answer for the same reasons before assigned. The grand jury
immediately made a further presentment, whereupon the court, after
hearing the parties, adjudged appellants guilty of contempt because
of their refusal to comply with the order of the court, and
remanded them to the custody of the marshal until they should
Being in his custody, each of them presented to the district
court a petition for a writ of habeas corpus; the writ was allowed,
returnable forthwith, and the United States district attorney, in
behalf of the marshal, made a motion to dismiss the writ, in effect
a demurrer to the petition for insufficiency. After hearing, the
court discharged the writ and remanded each of the petitioners to
the custody of the marshal (253 Fed. Rep. 800), and the present
writs of error and appeals were allowed.
The principal contention is that the Act of June 25, 1910, c.
392, 36 Stat. 822, and its amendments (Act of August 19, 1911, c.
33, 37 Stat. 25; Act of August 23, 1912, c. 349, 37 Stat. 360) are
unconstitutional insofar as they attempt to regulate and control
the selection by political parties at primary elections of
candidates for United States Senator to be voted for at the general
elections, it being insisted that the authority of Congress under §
4 of Art. I of the Constitution extends only to the definitive
general election, and not to pre-election arrangements or devices
such as nominating conventions and primaries.
It is maintained further that, because of the invalidity of
these statutes, neither the United States district court
Page 250 U. S. 279
nor the federal grand jury has jurisdiction to inquire into
primary elections or to indict or try any person for an offense
based upon the statutes, and therefore the order committing
appellants is null and void.
The same constitutional question was stirred in United
States v. Gradwell, 243 U. S. 476
243 U. S. 487
but its determination was unnecessary for the decision of the case,
and for this reason it was left undetermined, as the opinion
states. Considerations of propriety, as well as long-established
practice, demand that we refrain from passing upon the
constitutionality of an act of Congress unless obliged to do so in
the proper performance of our judicial function, when the question
is raised by a party whose interests entitle him to raise it.
We do not think the present parties are so entitled, since a
brief consideration of the relation of a witness to the proceeding
in which he is called will suffice to show that he is not
interested to challenge the jurisdiction of court or grand jury
over the subject matter that is under inquiry.
Long before the separation of the American Colonies from the
mother country, compulsion of witnesses to appear and testify had
become established in England. By Act of 5 Eliz., c. 9, § 12
(1562), provision was made for the service of process out of any
court of record requiring the person served to testify concerning
any cause or matter pending in the court, under a penalty of ten
pounds besides damages to be recovered by the party aggrieved.
See Havithbury v. Harvey,
Cro.Eliz. 130; 1 Leon. 122;
Goodwin (or Goodman) v. West,
Cro.Car. 522, 540; March,
18. When it was that grand juries first resorted to compulsory
process for witnesses is not clear. But as early as 1612, in the
Countess of Shrewsbury's case, Lord Bacon is reported to have
"all subjects, without distinction of degrees, owe to the King
tribute and service not only of their deed
Page 250 U. S. 280
and hand, but of their knowledge and discovery."
2 How.St.Tr. 769, 778. And by Act of 7 & 8 Wm. III, c. 3, §
7 (1695), parties indicted for treason or misprision of treason
were given the like process to compel their witnesses to appear as
was usually granted to compel witnesses to appear against them;
clearly evincing that process for crown witnesses was already in
At the foundation of our Federal Government the inquisitorial
function of the grand jury and the compulsion of witnesses were
recognized as incidents of the judicial power of the United States.
By the Fifth Amendment, a presentment or indictment by grand jury
was made essential to hold one to answer for a capital or otherwise
infamous crime, and it was declared that no person should be
compelled in a criminal case to be a witness against himself;
while, by the Sixth Amendment, in all criminal prosecutions, the
accused was given the right to a speedy and public trial, with
compulsory process for obtaining witnesses in his favor. By the
first Judiciary Act (September 24, 1789, c. 20, § 30, 1 Stat. 73,
88), the mode of proof by examination of witnesses in the courts of
the United States was regulated, and their duty to appear and
testify was recognized. These provisions, as modified by subsequent
legislation, are found in §§ 861-865, Rev.Stats. By Act of March 2,
1793, c. 22, § 6, 1 Stat. 333, 335, it was enacted that subpoenas
for witnesses required to attend a court of the United States in
any district might run into any other district, with a proviso
limiting the effect of this in civil causes so that witnesses
living outside of the district in which the court was held need not
attend beyond a limited distance from the place of their residence.
§ 876, Rev.Stats. By § 877, originating in Act of
February 26, 1853, c. 80, § 3, 10 Stat. 161, 169, witnesses
required to attend any term of the district court on the part of
the United States may be subpoenaed to attend to testify
Page 250 U. S. 281
generally, and under such process they shall appear before the
grand or petit jury, or both, as required by the court or the
district attorney. By the same Act of 1853 (10 Stat. 167, 168),
fees for the attendance and mileage of witnesses were regulated,
and it was provided that, where the United States was a party, the
marshal, on the order of the court, should pay such fees.
Rev.Stats., §§ 848, 855. And §§ 879 and 881, Rev.Stats., contain
provisions for requiring witnesses in criminal proceedings to give
recognizance for their appearance to testify, and for detaining
them in prison in default of such recognizance.
In all of these provisions, as in the general law upon the
subject, it is clearly recognized that the giving of testimony and
the attendance upon court or grand jury in order to testify are
public duties which every person within the jurisdiction of the
Government is bound to perform upon being properly summoned, and
for performance of which he is entitled to no further compensation
than that which the statutes provide. The personal sacrifice
involved is a part of the necessary contribution of the individual
to the welfare of the public. The duty, so onerous at times, yet so
necessary to the administration of justice according to the forms
and modes established in our system of government (Wilson v.
United States, 221 U. S. 361
221 U. S. 372
quoting Lord Ellenborough), is subject to mitigation in exceptional
circumstances; there is a constitutional exemption from being
compelled in any criminal case to be a witness against oneself,
entitling the witness to be excused from answering anything that
will tend to incriminate him (see Brown v. Walker,
161 U. S. 591
some confidential matters are shielded from considerations of
policy, and perhaps in other cases for special reasons a witness
may be excused from telling all that he knows.
But, aside from exceptions and qualifications -- and
Page 250 U. S. 282
none such is asserted in the present case -- the witness is
bound not only to attend, but to tell what he knows in answer to
questions framed for the purpose of bringing out the truth of the
matter under inquiry.
He is not entitled to urge objections of incompetency or
irrelevancy, such as a party might raise, for this is no concern of
his. Nelson v. United States, 201 U. S.
, 201 U. S.
On familiar principles, he is not entitled to challenge the
authority of the court or of the grand jury, provided they have a
existence and organization.
He is not entitled to set limits to the investigation that the
grand jury may conduct. The Fifth Amendment and the statutes
relative to the organization of grand juries recognize such a jury
as being possessed of the same powers that pertained to its British
prototype, and, in our system, examination of witnesses by a grand
jury need not be preceded by a formal charge against a particular
individual. Hale v. Henkel, 201 U. S.
, 201 U. S. 65
is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the probable
result of the investigation, or by doubts whether any particular
individual will be found properly subject to an accusation of
crime. As has been said before, the identity of the offender, and
the precise nature of the offense, if there be one, normally are
developed at the conclusion of the grand jury's labors, not at the
beginning. Hendricks v. United States, 223 U.
, 223 U. S.
And, for the same reasons, witnesses are not entitled to take
exception to the jurisdiction of the grand jury or the court over
the particular subject matter that is under investigation. In
truth, it is, in the ordinary case, no concern of one summoned as a
witness whether the offense is within the jurisdiction of the court
or not. At
Page 250 U. S. 283
least, the court and grand jury have authority and jurisdiction
to investigate the facts in order to determine the question whether
the facts show a case within their jurisdiction.
The present cases are not exceptional, and, for the reasons that
have been outlined, we are of opinion that appellants were not
entitled to raise any question about the constitutionality of the
statutes under which the grand jury's investigation was
Final orders affirmed.