Under the 5th Amendment to the Constitution of the United
States, which declares that "no person . . . shall be compelled in
any criminal case to be a witness against himself," where a person
is under examination before a grand jury, in an investigation into
certain alleged violations of the interstate commerce act of
February 4, 1887, 24 Stat. 379, and the amendatory act of March 2,
1889, 25 Stat. 855, he is not obliged to answer questions where he
states that his answers might tend to criminate him, although § 860
of the Revised Statutes provides that no evidence given by him
shall be in any manner used against him in any court of the United
States in any criminal proceeding.
The case before the grand jury was a criminal case.
The meaning of the constitutional provision is not merely that a
person shall not be compelled to be a witness against himself in a
criminal prosecution against himself, but its object is to insure
that a person shall 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.
The ruling in
People v. Kelly, 24 N.Y. 74, that the
words "criminal case" mean only a criminal prosecution against the
witness himself, disapproved.
The protection afforded by § 860 is not coextensive with the
constitutional provision.
Adjudged cases on this subject, in courts of the United States
and of the States, reviewed.
As the manifest purpose of the constitutional provisions, both
of the States and of the United States, is to prohibit the
compelling of testimony of a self-criminating kind from a party or
a witness, the liberal construction which must be placed on
constitutional provisions for the protection of personal rights
would seem to require that the constitutional guaranties, however
differently worded, should have, as far as possible, the same
interpretation.
It is a reasonable construction of the constitutional provision
that the witness is protected from being compelled to disclose the
circumstances of his offence, or the sources 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.
Page 142 U. S. 548
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. In view of the constitutional provision, a statutory
enactment, to be valid, must accord absolute immunity against
future prosecution for the offence to which the question relates.
The witness, having been committed to custody for his refusal to
answer, is entitled to be discharged on habeas corpus.
On the 21st of November, 1890, while the grand jury in
attendance upon the district court of the United States for the
northern district of Illinois was engaged in investigating and
inquiring into certain alleged violations, in that district, of an
act of congress entitled "An act to regulate commerce," approved
February 4, 1887, c. 104, 24 Stat. 379, and the amendments thereto,
approved March 2, 1889, c. 382, 25 Stat. 855, by the officers and
agents of the Chicago, Rock Island & Pacific Railway Company,
and by the officers and agents of the Chicago, St. Paul &
Kansas City Railway Company, and by the officers and agents of the
Chicago, Burlington & Quincy Railroad Company, and the officers
and agents of various other railroad companies having lines of road
in that district, one Charles Counselman appeared before the grand
jury in response to a subpoena served upon him and, after having
been duly sworn, testified as follows:
"Q. Your name is Charles Counselman?"
"A. Yes, sir."
"Q. You are the sole member of Charles Counselman &
Co.?"
"A. Yes, sir."
"Q. Engaged in the grain and commission business in the city of
Chicago?"
"A. Yes, sir."
"Q. Have you been a receiver of grain from the west during the
past two years?"
"A. Yes, sir."
"Q. Over what roads did you ship grain received by you during
the present summer of 1890?"
"A. The Rock Island & Burlington, principally."
"Q. From what states was most of the grain shipped? "
Page 142 U. S. 549
"A. From Kansas and Nebraska, I think."
"Q. What did your receipts in bushels amount to of corn in the
months of May, June, and July, 1890?"
"A. I have no idea; I could not tell you."
"Q. Five hundred thousand bushels a month?"
"A. I cannot tell you."
"Q. How many men have you employed during the last year? What is
the usual number of men employed in connection with your
business?"
"A. I have, I think six or seven men in my office."
"Q. Have you during the past year, Mr. Counselman, obtained a
rate for the transportation of your grain on any of the railroads
coming to Chicago, from points outside of this state, less than the
tariff or open rate?"
"A. That I decline to answer, Mr. Milchrist, on the ground that
it might tend to criminate me."
"Q. During the past year, have you received rates upon the
Chicago, Rock Island & Pacific from points outside of the state
to the city of Chicago, at less than the tariff rates?"
"A. That I decline to answer on the same ground."
"Q. I will ask you the same question with reference to the
Burlington."
"A. I answer in the same way."
"Q. The same with reference to Atchison."
"A. I can't recollect that we have done any business with that
road."
"Q. I will ask you whether you have, during the last year,
received a rate less than the tariff rate on what is called the
'Diagonal' or Stickney road."
"A. Not to my knowledge."
"Q. Who attends to the freight department of your business?"
"A. Myself and Mr. Martin."
"Q. Have you or the firm of Charles Counselman & Co.
received any rebate, draw back, or commission from the Chicago,
Rock Island & Pacific Railroad Company, or the Chicago,
Burlington & Quincy Railroad Company, on the transportation of
grain from points in the states of Nebraska
Page 142 U. S. 550
and Kansas, to the city of Chicago, in the state of Illinois,
during the past year, whereby you secured the transportation of
said grain at less than the tariff rates established by said
railroad?"
"A. I decline to answer on the same ground."
The grand jurors thereupon filed in said court, on the 22d of
November, 1890, their report, signed by their foreman and clerk
certifying to the court the several questions which Counselman so
refused to answer. Thereupon the judge of the court granted a rule
of Counselman to show cause why he should not answer the said
questions, a hearing was had, and the court made an order, on the
25th of November, 1890, which found that the excuses and reasons
advanced on behalf of Counselman as to why he should not answer
said questions were wholly insufficient, and directed that he
appear before the grand jury without delay, and there answer the
said questions, and also such further questions touching the matter
under inquiry by the grand jury, and which should be pertinent to
such inquiry, as should be propounded to him by any member of the
grand jury, or the district attorney, or any of his assistants.
Counselman was again called before the grand jury, and the same
questions, together with other kindred questions, were submitted to
him to answer, and he refused to answer them, and each of them, for
the same reasons. The grand jury, by its report signed by its
foreman and clerk, reported to the court that Counselman still
refused to answer the questions which he had previously refused to
answer, and upon the same grounds, and that there were also
propounded to him by the district attorney and the grand jury
additional questions which, and the answers thereto, were as
follows:
"Q. Do you know whether or not the Chicago, Rock Island &
Pacific Railroad Company transported for any person, company, or
corporation in the city of Chicago, during the year last past,
grain from any point in the states of Nebraska, Kansas, or Iowa, to
the city of Chicago, in the state of Illinois, for less than the
established rates in force on such road at the time of such
transportation?"
"A. I decline to answer, on the ground that my answer might tend
to criminate me."
"Q. Do you know any person, corporation, or company who has
obtained their transportation of grain from points or places in the
states of Iowa, Nebraska, or Kansas, to the city of Chicago, over
the Chicago, Rock Island & Pacific Railroad, during the past
year, at a rate and price less than the published and legal tariff
rate at the time of such shipment? "
Page 142 U. S. 551
"A. I decline to answer, for the reason that my answer might
tend to criminate me."
"Q. Do you know whether the Chicago, Rock Island & Pacific
Railroad Company, within the past year, has charged, demanded, or
received from any person, company, or corporation in the city of
Chicago any less rate than the open rate, or rate established by
said railroad company, on grain or other property transported by
the said railroad company from points in the states of Nebraska,
Kansas, and Iowa to the city of Chicago, in the state of Illinois?
If you have such knowledge, give the name of such shipper of whom
said rate was charged, demanded, or received, and the amount of
such rate and shipments, stating fully all the particulars within
your knowledge."
"A. I decline to answer for the reason that my answer might tend
to criminate me."
"Q. Do you know whether the Chicago, Rock Island & Pacific
Railroad Company, during the year A.D. 1890, has paid to any
shipper, at the city of Chicago, any rebate, refund, or commission
on property and grain transported by such company from points in
the states of Kansas, Nebraska, or Iowa, whereby such shipper
obtained the transportation of such grain or property from the said
points in said states to the city of Chicago, in the state of
Illinois, at a less rate than the open or tariff rate, or the rate
established by said company? If you have such knowledge, state the
amount of such rebates, the drawbacks, or commissions paid, to whom
paid, the date of the same, and on what shipments, and state fully
all the particulars within your knowledge relating to such
transaction or transactions. "
Page 142 U. S. 552
"A. I decline to answer, for the reason that my answer might
tend to criminate me."
Thereupon, after a hearing, the court on November 25, 1890,
adjudged Counselman to be in contempt of court and made an order
fining him $500 and the costs of the proceeding, and directing the
marshal to take him into custody and hold him until he should have
answered said questions, and all questions of similar import which
should be propounded to him by the grand jury, or the district
attorney, or any assistant district attorney, in the presence of
such jury, and until he should pay such fine and costs. Under that
order, he was taken into custody by the marshal and held.
On the 26th of November, 1890, he filed in the circuit court of
the United States for the northern district of Illinois a petition
setting forth the foregoing facts, and praying for a writ of habeas
corpus. The petition alleged that the grand jury had no
jurisdiction or authority to make the investigation in question, or
to submit to him the several questions referred to; that his
answers to those questions would tend to incriminate him, and, by
compelling him to answer them, he would be compelled to be a
witness against himself in the criminal proceeding and
investigation pending before the grand jury, and in any criminal
proceedings which might be brought as a result of such
investigation, contrary to the provisions of the constitution of
the United States, and especially the fourth and fifth amendments
thereof; that the district court had no jurisdiction to compel him
to answer said questions; that its order to that effect was
contrary to the constitution and laws of the United States, and was
void; that the district court had no jurisdiction so to adjudge him
in contempt; that the order imposing a fine upon him and committing
him to the custody of the marshal was void; and that he was held in
custody without legal right, and contrary to the constitution and
laws of the United States.
On the same day, the circuit court issued a writ of habeas
corpus, returnable forthwith, the return to which by the marshal
was that Counselman was held under the order of the district court,
made November 25, 1890. The case was heard
Page 142 U. S. 553
on November 28th, and on December 18th the circuit court, held
by Judge Gresham, delivered an opinion, (44 Fed.Rep. 268) and made
an order adjudging that the district court was in the exercise of
its rightful authority in doing what it had done, overruling the
motion of Counselman for his discharge, dismissing his petition,
remanding him to the custody of the marshal, discharging the writ
of habeas corpus, and adjudging against Counselman the costs of the
proceedings. He excepted to the order and appealed to this court,
and an order was made admitting him to bail pending the appeal.
Page 142 U. S. 559
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
In the opinion of the Circuit Court, it was held that, under the
Fifth Amendment to the Constitution, which declares that "no person
. . . shall be compelled in any criminal case to be a witness
against himself," a person a cannot be compelled to disclose facts
before a court or grand jury which might subject him to a criminal
prosecution, or his property to forfeiture; that, under the
interstate commerce law, it is made a criminal offense, punishable
by fine and imprisonment, for any officer or agent of a railroad
company to grant any shippers of merchandise from one state to
another, and for any such shipper to contract for or receive, a
rate less than the tariff or open rate; that shippers, as well as
the officers, agents,
Page 142 U. S. 560
and employes of corporations engaged in the carrying business
between states, are made subject to the penalties of the statute;
but that, as the protection of § 860 of the Revised Statutes was
coextensive with that of the Constitution, Counselman was entitled
to no privilege under the Constitution; that, if thereafter he were
to be prosecuted for the offense, § 860 would not permit his
admissions to be proved against him; that his refusal to testify
was not a refusal to testify in a proceeding to obtain evidence
upon which he might be indicted, but in a proceeding to obtain
evidence upon which others might be indicted; and that, although in
his testimony he might disclose facts and circumstances which would
open up sources of information to the government, whereby it might
obtain evidence not otherwise obtainable to secure his conviction,
yet, if his testimony could not be repeated in any subsequent
proceeding against him or his property, he was protected as fully
by § 860, as the Constitution intended he should be.
Section 860 is a reenactment of § 1 of the act of February 25,
1868, c. 13, 15 Stat. 37, which provided as follows:
"That no answer or other pleading of any party, and no discovery
or evidence obtained by means of any judicial proceeding from any
party or witness in this or any foreign country, shall be given in
evidence, or in any manner used against such party or witness, or
his property or estate, in any court of the United States, or in
any proceeding by or before any officer of the United States, in
respect to any crime, or for the enforcement of any penalty or
forfeiture, by reason of any act or omission of such party or
witness; provided that nothing in this act shall be construed to
exempt any party or witness from prosecution and punishment for
perjury committed by him in discovering or testifying as
aforesaid."
Section 860 provides 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; provided, that this section
Page 142 U. S. 561
shall not exempt any party or witness from prosecution and
punishment for perjury committed in discovering or testifying as
aforesaid."
By § 10 of the Interstate Commerce Act of February 4, 1887, c.
104, 24 Stat. 382, as amended by § 2 of the act of March 2, 1889,
c. 382, 25 Stat. 857, unlawful discrimination in rates, fares, or
charges, for the transportation of passengers or property, is made
subject not only to a fine of not to exceed $5,000 for each
offense, but to imprisonment in the penitentiary for not over two
years, or to both, in the discretion of the court. By § 12 of the
act of 1887, 24 Stat. 383, as amended by § 3 of the act of 1889, 25
Stat. 858, the interstate commerce commission is authorized and
required to execute and enforce the provisions of the act, and, on
the request of the commission, it is made the duty of any district
attorney of the United States to whom the commission may apply to
institute in the proper court, and to prosecute under the direction
of the attorney general of the United States, all necessary
proceedings for the enforcement of the provisions of the act and
for the punishment of all violations thereof.
It is contended by the appellant that the grand jury of the
district court was not in the exercise of its proper and legitimate
authority in prosecuting the investigations specifically set out in
its two reports to the district court; that those reports could not
be made the foundation of any judicial action by the court; that
the interstate commerce commission was specially invested by the
statute with the authority to investigate violations of the act and
charged with that duty; and that no duty in that respect was
imposed upon the grand jury, until specific charges had been
made.
But, in the view we take of this case, we do not find it
necessary to intimate any opinion as to that question in any of its
branches, or as to the question whether the reports of the grand
jury, in stating that they were engaged in investigating and
inquiring into "certain alleged violations" of the acts of 1887 and
1889 by the officers and agents of three specified railway and
railroad companies, and the officers and agents of various other
railroad companies having lines of road in the
Page 142 U. S. 562
district (there being no other showing in the record as to what
they were investigating and inquiring into), are or are not
consistent with the fact that they were investigating specific
charges against particular persons, because we are of opinion that
upon another ground the judgment of the court below must be
reversed.
It is broadly contended on the part of the appellee that a
witness is not entitled to plead the privilege of silence except in
a criminal case against himself; but such is not the language of
the Constitution. Its provision is that no person shall be
compelled in
any criminal case to be a witness against
himself. This provision must have a broad construction in favor of
the right which it was intended to secure. The matter under
investigation by the grand jury in this case was a criminal matter,
to inquire whether there had been a criminal violation of the
Interstate Commerce Act. If Counselman had been guilty of the
matters inquired of in the questions which he refused to answer, he
himself was liable to criminal prosecution under the act. The case
before the grand jury was therefore a criminal case. The reason
given by Counselman for his refusal to answer the questions was
that his answers might tend to criminate him, and showed that his
apprehension was that, if he answered the questions truly and fully
(as he was bound to do if he should answer them at all), the
answers might show that he had committed a crime against the
Interstate Commerce Act, for which he might be prosecuted. His
answers, therefore, would be testimony against himself, and he
would be compelled to give them in a criminal case.
It is impossible that the meaning of the constitutional
provision can only be that a person shall not be compelled to be a
witness against himself in a criminal 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.
Page 142 U. S. 563
It is argued for the appellee that the investigation before the
grand jury was not a criminal case, but was solely for the purpose
of finding out whether a crime had been committed, or whether any
one should be accused of an offense, there being no accuser and no
parties plaintiff or defendant, and that a case could arise only
when an indictment should be returned. In support of this view,
reference is made to article 6 of the amendments to the
Constitution of the United States, which provides that, in all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial by an impartial jury, to be confronted with
the witnesses against him, to have compulsory process for
witnesses, and the assistance of counsel for his defense.
But this provision distinctly means a criminal prosecution
against a person who is accused and who is to be tried by a petit
jury. A criminal prosecution under article 6 of the amendments is
much narrower than a "criminal case," under article 5 of the
amendments. It is entirely consistent with the language of article
5 that the privilege of not being a witness against himself is to
be exercised in a proceeding before a grand jury.
We cannot yield our assent to the view taken on this subject by
the Court of Appeals of New York in
People v. Kelly, 24
N.Y. 74, 84. The provision of the Constitution of New York of 1846
(article 1, § 6) was that no person shall "be compelled, in any
criminal case, to be a witness against himself." The court,
speaking by Judge Denio, said:
"The term 'criminal case,' used in the clause, must be allowed
some meaning, and none can be conceived other than a prosecution
for a criminal offense. But it must be a prosecution against him,
for what is forbidden is that he should be compelled to be a
witness against himself."
This ruling, which has been followed in some other cases, seems
to us, as applied to the provision in the Fifth Amendment to the
Constitution of the United States, to take away entirely its true
meaning and its value.
It is an ancient principle of the law of evidence that a witness
shall not be compelled, in any proceeding, to make disclosures or
to give testimony which will tend to criminate him or
Page 142 U. S. 564
subject him to fines, penalties, or forfeitures.
Rex v.
Slaney, 5 Car. & P. 213;
Cates v. Hardacre, 3
Taunt. 424:
Maloney v. Bartley, 3 Camp. 210; 1 Starkie on
Evidence 71, 191;
Case of Sir John Friend, 13 How.St.Tr.
16;
Case of Earl of Macclesfield, 16 How.St.Tr. 767; 1
Greenl.Ev. § 451; 1 Burr's Tr. 244; Whart.Crim.Ev. (9th Ed.) § 463;
Southard v. Rexford, 6 Cowen 254;
People v.
Mather, 4 Wend. 229;
Lister v. Boker, 6 Blackford
439.
The relations of Counselman to the subject of inquiry before the
grand jury, as shown by the questions put to him, in connection
with the provisions of the Interstate Commerce Act, entitled him to
invoke the protection of the Constitution.
State v.
Nowell, 58 N.H. 314;
Emery's Case, 107 Mass. 172.
It remains to consider whether § 860 of the Revised Statutes
removes the protection of the constitutional privilege of
Counselman. That section must be construed as declaring that no
evidence obtained from a witness by means of a judicial proceeding
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. It follows that any evidence which might have been
obtained from Counselman by means of his examination before the
grand jury could not be given in evidence nor used against him or
his property in any court of the United States, in any criminal
proceeding, or for the enforcement of any penalty or forfeiture.
This, of course, protected him against the use of his testimony
against him or his property in any prosecution against him or his
property in any criminal proceeding in a court of the United
States. But it had only that effect. It could not, and would not,
prevent the use of his testimony to search out other testimony to
be used in evidence against him or his property in a criminal
proceeding in such court. It could not prevent the obtaining and
the use of witnesses and evidence which should be attributable
directly to the testimony he might give under compulsion, and on
which he might be convicted, when otherwise, and if he had refused
to answer, he could not possibly have been convicted.
The constitutional provision distinctly declares that a
person
Page 142 U. S. 565
shall not "be compelled in any criminal case to be a witness
against himself," and the protection of § 860 is not coextensive
with the constitutional provision. Legislation cannot detract from
the privilege afforded by the Constitution. It would be quite
another thing if the Constitution had provided that no person shall
be compelled in any criminal case to be a witness against himself
unless it should be provided by statute that criminating evidence
extracted from a witness against his will should not be used
against him. But a mere act of congress cannot amend the
Constitution, even if it should ingraft thereon such a proviso.
In some states where there is a like constitutional provision,
it has been attempted by legislation to remove the constitutional
provision by declaring that there shall be no future criminal
prosecution against the witness, thus making it impossible for the
criminal charge against him ever to come under the cognizance of
any court, or at least enabling him to plead the statute in
absolute bar of such prosecution.
A review of the subject in adjudged cases will be useful.
In
Commonwealth v. Gibbs, 3 Yeates 429 and 4 Dall. 253,
in 1802, the declaration of rights in the Constitution of
Pennsylvania of 1776 declared that no man can "be compelled to give
evidence against himself," and the same language was found in the
Constitution of 1790. Under this, the Supreme Court of Pennsylvania
held that the maxim that no one is bound to accuse himself extended
to cases where the answer might involve him in shame or reproach,
and it held to the same effect in
Lessee of Galbreath v.
Eichelberger, 3 Yeates 515, in 1803.
In June, 1807, CHIEF JUSTICE MARSHALL, in the Circuit Court of
the United States for the District of Virginia, in
Burr's
Trial, 1 Burr's Tr. 244, on the question whether the witness
was privileged not to accuse himself, said:
"If the question be of such a description that an answer to it
may or may not criminate the witness, according to the purport of
that answer, it must rest with himself, who alone can tell what it
would be, to answer the question or not. If, in such a case, he
say, upon his oath, that his answer would criminate himself,
the
Page 142 U. S. 566
court can demand no other testimony of the fact. . . . According
to their statement, [the counsel for the United States], a witness
can never refuse to answer any question, unless that answer,
unconnected with other testimony, would be sufficient to convict
him of crime. This would be rendering the rule almost perfectly
worthless. Many links frequently compose that chain of testimony
which is necessary to convict any individual of a 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. That fact, of itself, might be unavailing, but
all other facts without it would be insufficient. While that
remains concealed within 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. What testimony may be possessed or is
attainable against any individual the court can never know. It
would seem, then, that the court ought never to compel a witness to
give an answer which discloses a fact that would form a necessary
and essential part of a crime which is punishable by the laws."
In 1853, in
State v. Quarles, 13 Ark. 307, the
declaration of rights in the Constitution of Arkansas of 1836
(article 2, sec. 11) had declared that, in prosecutions by
indictment or presentment, the accused "shall not be compelled to
give evidence against himself." Quarles was indicted under a gaming
law for betting money on a game of chance. A
nolle
prosequi having been entered as to one Neal, against whom a
like prosecution was pending, Neal was sworn as a witness for the
state, and informed of the
nolle prosequi, and that no
indictment for a similar offense would be preferred against him,
and was asked whether he had seen Quarles bet money at cards within
a specified time. Neal refused to answer the
Page 142 U. S. 567
question, alleging that he feared that he would criminate
himself thereby. The trial court refused to compel him to answer,
and, the jury having found for the defendant, the state appealed.
There was a statute of Arkansas which read as follows:
"In all cases where two or more persons are jointly or otherwise
concerned in the commission of any crime or misdemeanor, either of
such persons may be sworn as a witness in relation to such crime or
misdemeanor; but the testimony given by such witness shall in no
instance be used against him in any criminal prosecution for the
same offense."
The Supreme Court of Arkansas held that, although witnesses were
not expressed in the terms of the provisions of the bill of rights,
yet they were substantially embraced to the full extent of a
complete guaranty against self-accusation, and that the privilege
of the bill of rights was that a witness should not be compelled to
produce the evidence to prove himself guilty of the crime about
which he might be called to testify. But it was further held that,
by the statute, the legislature had so changed the rule by
directing that the testimony required to be given should never be
used against a witness for the purpose of procuring his conviction
for the crime or misdemeanor to which it related that it was no
longer necessary for him to claim his privilege in regard to such
testimony in order to prevent its afterwards being used against
him; and that the only question was whether the statutory
regulation afforded sufficient protection to the witness,
responsive to the new rule and to the constitutional guaranty
against compulsory self-accusation. It was held that the statute
sufficiently guarded witnesses from self-accusation within the
meaning of the Constitution to make it lawful for the courts to
compel them to testify as to all matters embraced by the provisions
of the statute on that subject.
In
Higdon v. Heard, 14 Ga. 255, in 1853, it was said
that the Constitution of Georgia declared that "no person shall be
compelled in any criminal case to be a witness against himself." In
that case, the plaintiff had filed a bill in equity praying a
discovery as to property which he alleged the defendants had won
from him in a game of cards. The bill
Page 142 U. S. 568
was demurred to on the ground that the law of the state
compelling a discovery of gaming transactions was unconstitutional,
because such transactions were criminal, and the statute did not
grant an absolute and unconditional release from punishment, and
because the defendants could not make the discovery sought without
criminating themselves and incurring penalties. The demurrer was
overruled by the supreme court of Georgia on the ground that,
although all persons were protected by the Constitution from
furnishing evidence against themselves which might tend to subject
them to a criminal prosecution, they received their protection by
virtue of an act of Georgia of 1764, because, under that act, their
answers could not be read in evidence against them in any criminal
case whatever, being excluded by the Constitution.
In
Ex parte Rowe, 7 Cal. 184, in 1857, the Constitution
of California of 1849 provided (article 1, § 8) that no person
shall "be compelled, in any criminal case, to be a witness against
himself." Rowe had been committed for refusing to answer, under an
order of the court, certain questions propounded to him by the
grand jury in an examination concerning the disposition of certain
moneys taken from the state treasury, on the ground that his answer
would disgrace him, and would tend to subject him to a prosecution
for felony. The supreme court of California, on habeas corpus,
considered the construction and constitutionality of the fifth
section of an act passed April 16, 1855, which provided that "the
testimony given by such witness shall in no instance be used
against himself in any criminal prosecution." The court held that
the provision of the Constitution was intended to protect the
witness from being compelled to testify against himself in regard
to a criminal offense; that he could not be a witness against
himself unless his testimony could be used against him in his own
case; and that the statute gave the witness that protection which
was contemplated by the Constitution, and therefore he was bound to
answer.
In 1860, in
Wilkins v. Malone, 14 Ind. 153, the
Constitution of Indiana of 1851, in its bill of rights (article 1,
§ 14), had declared that "no person in any criminal prosecution
shall be
Page 142 U. S. 569
compelled to testify against himself." In a suit brought by
Malone to recover on a promissory note, the defense pleaded usury,
and offered to examine Malone as a witness to prove the usury. The
plaintiff objected on the ground that such examination would
criminate himself, and the objection was sustained. On appeal to
the Supreme Court of Indiana by the defendants, it was held that
the constitutional provision protected a person from a compulsory
disclosure in a civil suit of facts tending to criminate him
whenever his answer could be given in evidence against him in a
subsequent criminal prosecution. The court referred to
State v.
Quarles, supra, and
Higdon v. Heard, supra, and to
the statute of Indiana (1 Rev.Stat. p. 345, § 8), which provided
that a person charged with taking illegal interest might be
required to answer, but that his answer should not be used against
him in any criminal prosecution for usury. The court held that, by
this statute, the constitutional privilege of the party was fully
secured to him, although he might disclose circumstances which
might lead to a criminal prosecution.
In 1861, in the Court of Appeals of New York
People v.
Kelly, 24 N.Y. 74, the Constitution of New York of 1846
declared that no person shall "be compelled, in any criminal case,
to be a witness against himself." In that case, one Hackley, as a
witness before the grand jury on a complaint against certain
aldermen for feloniously receiving a gift of money under an
agreement that their votes should be influenced thereby in a matter
then pending before them in their official capacity, in answer to a
question put to him as to what he had done with certain money which
he had received, said that any answer which he could give to the
question would disgrace him, and would have a tendency to accuse
him of a crime, and he demurred to the question. Having been
ordered by the court of general sessions of the peace to answer it,
he still refused, and was adjudged guilty of contempt, and put in
prison. On a writ of habeas corpus, he was remanded into custody by
the supreme court, and he appealed to the court of appeals.
By Chapter 539 of the Laws of New York of 1853 it was
Page 142 U. S. 570
enacted, by § 2, that § 14 should be added to article 2, tit. 4,
c. 1, part 4, Rev.Stat. The act provided that the giving of money
to any member of the common council of a city, with intent to
influence his action upon any matter which might be brought before
him in his official capacity, should be an offense punishable by
fine or imprisonment in a state prison or both; and § 14 provided
that every person offending against the statute should "be a
competent witness against any other person so offending," and might
be compelled to give evidence before any magistrate or grand jury,
or in any court, in the same manner as other persons, "but the
testimony so given shall not be used in any prosecution or
proceeding, civil or criminal, against the person so testifying." A
similar provision was contained in chapter 446 of the Laws of 1857,
in § 52.
The Court of Appeals considered the question whether those
provisions were consistent with the true sense of the declaration
of the Constitution, and said, speaking by Judge Denio (page
82):
"The mandate that an accused person should not be compelled to
give evidence against himself would fail to secure the whole object
intended if a prosecutor might call an accomplice or confederate in
a criminal offense, and afterwards use the evidence he might give
to procure a conviction on the trial of an indictment against him.
If obliged to testify, on the trial of the co-offender, to matters
which would show his own complicity, it might be said upon a very
liberal construction of the language that he was compelled to give
evidence against himself -- that is, to give evidence which might
be used in a criminal case against himself. . . . It is, of course,
competent for the legislature to change any doctrine of the common
law, but I think they could not compel a witness to testify, on the
trial of another person, to facts which would prove himself guilty
of a crime, without indemnifying him against the consequences,
because I think, as has been mentioned, that, by a legal
construction, the Constitution would be found to forbid it."
But the court went on the say:
"If a man cannot give evidence upon the trial of another person
without disclosing circumstances which will make his own
Page 142 U. S. 571
guilt apparent, or at least capable of proof, though his account
of the transactions should never be used as evidence, it is the
misfortune of his condition, and not any want of humanity in the
law. If a witness objects to a question on the ground that an
answer would criminate himself, he must allege, in substance, that
his answer, if repeated as his admission, on his own trial, would
tend to prove him guilty of a criminal offense. If the case is so
situated that a repetition of it on a prosecution against him is
impossible, as where it is forbidden by a positive statute, I have
seen no authority which holds or intimates that the witness is
privileged. It is not within any reasonable construction of the
language of the constitutional provision. The term 'criminal case,'
used in the clause, must be allowed some meaning, and none can be
conceived other than a prosecution for a criminal offense. But it
must be a prosecution against him; for what is forbidden is that he
should be compelled to be a witness against himself. Now, if he be
prosecuted criminally touching the matter about which he has
testified upon the trial of another person, the statute makes it
impossible that his testimony given on that occasion should be used
by the prosecution on the trial. It cannot, therefore, be said
that, in such criminal case, he has been made a witness against
himself, by force of any compulsion used towards him, to procure,
in the other case, testimony which cannot possibly be used in the
criminal case against himself."
The court held, therefore, that Hackley was not protected by the
Constitution of New York from answering before the grand jury.
In 1871, in
Emery's Case, 107 Mass. 172, Article 12 of
the declaration of rights in the Constitution of Massachusetts of
1780 had declared that no subject shall be "compelled to accuse or
furnish evidence against himself." A statute of Massachusetts of
March 8, 1871, c. 91, entitled "An act for the better discovery of
testimony and the protection of witnesses before the joint special
committee on the state police," provided as follows:
"No person who is called as a witness before the joint special
committee on the state police shall be excused from answering any
question or from the production of any paper relating to any
corrupt practice or improper
Page 142 U. S. 572
conduct of the state police, forming the subject of inquiry by
such committee, on the ground that the answer to such question or
the production of such paper may criminate or tend to criminate
himself, or to disgrace him, or otherwise render him infamous, or
on the ground of privilege; but the testimony of any witness
examined before said committee upon the subject aforesaid, or any
statement made or paper produced by him upon such an examination,
shall not be used as evidence against such witness in any civil or
criminal proceeding in any court of justice: provided, however,
that no official paper or record, produced by such witness on such
examination, shall be held or taken to be included within the
privilege of said evidence so to protect such witness in any civil
or criminal proceeding as aforesaid, and that nothing in this act
shall be construed to exempt any witness from prosecution and
punishment for perjury committed by him in testifying as
aforesaid."
Emery was summoned as a witness before the joint special
committee of the senate and house of representatives of the general
court "to inquire if the state police is guilty of bribery and
corruption." Interrogatories were propounded to him by the
committee, which he declined to answer. On a report of the facts to
the senate, it ordered his arrest for contempt. He was brought
before the senate, and asked the following question:
"Are you ready and willing to answer before the joint special
committee, appointed by this senate and the house of
representatives of Massachusetts, to inquire if the state police is
guilty of bribery and corruption, the following questions, namely:
First. Whether, since the appointment of the state
constabulary force, you have ever been prosecuted for the sale or
keeping for sale intoxicating liquors.
Second. Have you
ever paid any money to any state constable, and do you know of any
corrupt practice or improper conduct of the state police? If so,
state fully what sums, and to whom you have thus paid money, and
also what you know of such corrupt practice and improper
conduct."
He answered in writing as follows:
"Intending no disrespect to the honorable senate, I answer,
under advice of counsel, that I am ready and willing to answer the
first question, but I decline to answer the second question
Page 142 U. S. 573
upon the grounds -- First, that the answer thereto will accuse
me of an indictable offense; second, that the answer thereto will
furnish evidence against me by which I can be convicted of such an
offense."
The senate thereupon committed him to the custody of the
sergeant at arms, to be confined in jail for 25 days, or until the
further order of the senate, unless he should sooner answer the
questions . He was imprisoned accordingly, and the case was brought
before Judge Wells of the Supreme Judicial Court on a writ of
habeas corpus, and was fully argued. It was held under advisement
and for conference with the other judges; and in the opinion
subsequently delivered by Judge Wells, it is stated that that
opinion had the approval and unanimous concurrence of all the
members of the court. It is said in the opinion, in regard to the
second question put to the witness:
"It is apparent that an affirmative answer to the question put
to him might tend to show that he had been guilty of an offense,
either against the laws relating to the keeping and sale of
intoxicating liquors, or under the statute for punishing one who
shall corruptly attempt to influence an executive officer by the
gift or offer of a bribe. Gen.Stat. c. 163, § 7."
In regard to the clause above quoted from the bill of rights,
the opinion says:
"By the narrowest construction, this prohibition extends to all
investigations of an inquisitorial nature, instituted for the
purpose of discovering crime, or the perpetrators of crime, by
putting suspected parties upon their examination in respect
thereto, in any manner, although not in the course of any pending
prosecution. But it is not even thus limited. The principle applies
equally to any compulsory disclosure of his guilt by the offender
himself, whether sought directly as the object of the inquiry, or
indirectly and incidentally for the purpose of establishing facts
involved in an issue between other parties. If the disclosure thus
made would be capable of being used against himself as a confession
of crime, or an admission of facts tending to prove the commission
of an offense by himself, in any prosecution then pending or that
might be brought against him therefor, such disclosure would be an
accusation of himself within the
Page 142 U. S. 574
meaning of the constitutional provision. In the absence of
regulation by statute, the protection against such self-accusation
is secured by according to the guilty person, when called upon to
answer as witness or otherwise, the privilege of then avowing the
liability and claiming the exemption, instead of compelling him to
answer, and then excluding his admissions so obtained, when
afterwards offered in evidence against him. This branch of the
constitutional exemption corresponds with the common law maxim
nemo tenetur seipsum accusare, the interpretation and
application of which has always been in accordance with what has
been just stated. Broom, Leg.Max. (5th Ed.) 968; Wing.Max. 486;
Rosc.Crim.Ev. (2d Amer. Ed.) 159; Starkie, Ev. (8th Amer, Ed.) 41,
204, and notes; 1 Greenl. Ev. § 451, and notes."
The opinion then cites the case of
People v. Kelly,
supra, as holding that the clause in the Constitution of New
York of 1846 protected a witness from being compelled to answer to
matters which might tend to criminate himself, when called to
testify against another party; and also
People v. Mather,
4 Wend. 229, as declaring that the exemption in the Constitution of
New York extended to the disclosure of any fact which might
constitute an essential link in a chain of evidence by which guilt
might be established, although that fact alone would not indicate
any crime. The opinion then proceeds:
"The third branch of the provision in the Constitution of
Massachusetts, 'or furnish evidence against himself,' must be
equally extensive in its application, and, in its interpretation,
may be presumed to be intended to add something to the significance
of that which precedes. Aside from this consideration, and upon the
language of the proposition standing by itself, it is a reasonable
construction to hold that it protects a person from being compelled
to disclose the circumstances of his offense, the sources 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. For all practical purposes, such disclosures would have the
effect to furnish evidence against the party making them. They
might furnish the only means of discovering the names of
Page 142 U. S. 575
those who could give evidence concerning the transaction, the
instrument by which a crime was perpetrated, or even the
corpus
delicti itself. Both the reason upon which the rule is founded
and the terms in which it is expressed forbid that it should be
limited to confessions of guilt, or statements which may be proved
in subsequent prosecutions, as admissions of facts sought to be
established therein."
The court then proceeds to hold that those constitutional
provisions applied to investigations before a legislative body.
Passing, then, to consider the effect of the statute of 1871,
the opinion says:
"It follows from the considerations already named that, so far
as this statute requires a witness, who may be called to answer
questions and produce papers which may tend to criminate himself
and attempts to take from him the constitutional privilege in
respect thereto, it must be entirely ineffectual for that purpose
unless it also relieves him from all liabilities for protection
against which the privilege is secured to him by the Constitution.
The statute does undertake to secure him against certain of those
liabilities, to-wit, the use of any disclosures he may make, as
admissions or direct evidence against him, in any civil or criminal
proceeding."
The opinion then refers to the case of
People v. Kelly,
supra, and says that that decision was made upon the ground
that the terms of the provision of the Constitution of New York
protected the witness only from being compelled "to be a witness
against himself," and did not protect him from the indirect and
incidental consequences of a disclosure which he might be called
upon to make.
The opinion then says:
"The terms of the provision in the Constitution of Massachusetts
require a much broader interpretation, as has already been
indicated; and no one can be required to forego an appeal to its
protection unless first secured from future liability and exposure
to be prejudiced in any criminal proceeding against him as fully
and extensively as he would be secured by availing himself of the
privilege accorded by the Constitution. Under the interpretation
already given, this cannot be accomplished so long as he remains
liable to prosecution criminally for any matters or
Page 142 U. S. 576
causes in respect of which he shall be examined, or to which his
testimony shall relate. It is not done, in direct terms, by the
statute in question; it is not contended that the statute is
capable of an interpretation which will give it that effect; and it
is clear that it cannot and was not intended to so operate.
Failing, then, to furnish to the persons to be examined an
exemption equivalent to that contained in the Constitution, or to
remove the whole liability against which its provisions were
intended to protect them, it fails to deprive them of the right to
appeal to the privilege therein. The result is that, in appealing
to his privilege, as an exemption from the obligation to answer the
inquiries put to him, the petitioner was in the exercise of his
constitutional right, and his refusal to answer upon that ground
was not, and could not be considered as, disorderly conduct or a
contempt of the authority of the body before which he was called to
answer. There being no legal ground to authorize the commitment
upon which he is held, he must be discharged therefrom."
In
Cullen v. Commonwealth, 24 Gratt. 624, in 1873,
Cullen, when asked before a grand jury to state what he knew of a
certain duel, declined to answer because the answer would tend to
criminate him. The Hustings Court ordered him to answer, and, on
his still refusing to do so, fined him and committed him to jail.
The case was brought before the Court of Appeals of Virginia. The
bill of rights of the Constitution of Virginia of 1870, in § 10 of
article 1, provided that no man can "be compelled to give evidence
against himself." That provision had existed in the bill of rights
of Virginia as far back as June 12, 1776, and of it the Court of
Appeals said that it was the purpose of its framers
"to declare, as part of the organic law, that no man should
anywhere, before any tribunal, in any proceeding, be compelled to
give evidence tending to criminate himself, either in that or any
other proceeding;"
and that the provision could not be confined "only to cases in
which a man is called on to give evidence himself in a prosecution
pending against him."
The opinion then cited
People v. Kelly and
Emery's
Case, hereinbefore referred to, as sustaining its view, and
proceeded
Page 142 U. S. 577
to consider the effect of an act of Virginia, passed October 31,
1870, in regard to dueling, which provided as follows:
"Every person who may have been the bearer of such challenge or
acceptance, or otherwise engaged or concerned in any duel, may be
required, in any prosecution against any person but himself, for
having fought or aided or abetted in such duel, to testify as a
witness in such prosecution; but any statement made by such person,
as such witness, shall not be used against him in any prosecution
against himself."
The court held that the effect of the statute was to invade the
constitutional right of the citizen, and to deprive the witness of
his constitutional right to refuse to give evidence tending to
criminate himself, without indemnity, and that the act was
therefore, to that extent, unconstitutional and void. It held
further that, before the constitutional privilege could be taken
away by the legislature, there must be absolute indemnity provided;
that nothing short of complete amnesty to the witness, an absolute
wiping out of the offense as to him, so that he could no longer be
prosecuted for it, would furnish that indemnity; that the statute
in question did not furnish it, but only provided that the
statement made by the witness should not be used against him in a
prosecution against himself; that, without using one word of that
statement, the attorney for the Commonwealth might, in many cases,
and, in a case like that in hand, inevitably would, be led by the
testimony of the witness to means and sources of information which
might result in criminating the witness himself; and that this
would be to deprive the witness of his privilege without indemnity.
The judgment of the Hustings Court was reversed.
In
State v. Nowell, 58 N.H. 314, in 1878, article 15 of
the bill of rights in the Constitution of New Hampshire of 1792
declared that no subject shall "be compelled to accuse or furnish
evidence against himself." Nowell refused to testify before a grand
jury as to whether, as a clerk for one Goodwin, he had sold
spirituous liquors, and whether Goodwin sold them or kept them for
sale. He declined to answer on the ground that his evidence might
tend to criminate himself. A statute of the state (Gen.Stat. c. 99,
§ 20) provided as follows:
"No
Page 142 U. S. 578
clerk, servant, or agent of any person accused of a violation of
this chapter shall be excused from testifying against his principal
for the reason that he may thereby criminate himself; but no
testimony so given by him shall, in any prosecution, be used as
evidence, either directly or indirectly, against him, nor shall he
be thereafter prosecuted for any offense so disclosed by him."
A motion having been made before the Supreme Court of New
Hampshire for an attachment against him for contempt for refusing
to testify, that court, after quoting the provision in the bill of
rights, said:
"The common law maxim (thus affirmed by the bill of rights) that
no one shall be compelled to testify to his own criminality has
been understood to mean not only that the subject shall not be
compelled to disclose his guilt upon a trial of a criminal
proceeding against himself, but also that he shall not be required
to disclose, on the trial of issues between others, facts that can
be used against him as admissions tending to prove his guilt of any
crime or 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.
Emery's Case, 107 Mass. 172, 181."
In regard to the statute, the court said that the legislature,
having undertaken to obtain the testimony of the witness without
depriving him of his constitutional privilege of protection, must
relieve him from all liabilities on account of the matters which he
is compelled to disclose; that he was to be secured against all
liability to future prosecution as effectually as if he were wholly
innocent; that this would not be accomplished if he were left
liable to prosecution criminally for any matter in respect to which
he might be required to testify; that the statute of New Hampshire
went further than the statute of Massachusetts considered in
Emery's Case, because it provided that the witness should
not be thereafter prosecuted for any offense so disclosed by him;
that the witness had, under the statute, all the protection which
the common law right, adopted by the bill of rights in its common
law sense, gave him; that, if he should be prosecuted, a plea that
he had disclosed the same offense on a lawful accusation against
his
Page 142 U. S. 579
principal would be a perfect answer in bar or abatement of the
prosecution against himself; and that, unless he should testify,
the motion for the attachment must be granted.
In 1880, in
La Fontaine v. Southern Underwriters, 83
N.C. 132, the Constitution of North Carolina of 1876 had provided,
in the declaration of rights (Article 1, § 11), that, "in all
criminal prosecutions, every man has the right . . . to . . . not
be compelled to give evidence against himself." One Blacknall, as a
witness in a hearing before a referee in a civil suit, had refused
to answer a question as to his possession of certain books on the
ground that indictments were pending against him connected with the
management of the affairs of the association owning the books, and
that his answer to the question might tend to criminate him. The
case was heard before an inferior state court, which ruled that he
must answer the question. On appeal to the Supreme Court of North
Carolina, it held that the fair interpretation of the
constitutional provision was to secure a person who was or might be
accused of crime from making any compulsory revelations which might
be used in evidence against him on his trial for the offense; that,
as the witness was protected from the consequences of the
discovery, and the facts elicited could be given in evidence in no
criminal prosecution to which they were pertinent, the plaintiff in
the case was entitled to all the information which the witness
possessed, whether it did or did not implicate the witness in a
fraudulent transaction; that the inquiry could not be evaded upon
any ground of the self-criminating answer which might follow,
although the answers of the witness could not be used against him
in any criminal proceeding whatever; and that his constitutional
right not to "be compelled to give evidence against himself" would
be maintained intact and full.
In
Temple v. Commonwealth, 75 Va. 892, in 1881, the
same § 10 of Article 1 of the bill of rights of the Constitution of
Virginia of 1870 that was considered in
Cullen v. Commonwealth,
supra, was in force. An indictment had been found by a grand
jury, on the evidence of Temple, against one Berry for setting up a
lottery. On the trial of Berry before the
Page 142 U. S. 580
petit jury, Temple refused to testify, on the ground that, by so
doing, he would criminate himself, and for such refusal he was
fined and imprisoned for contempt by the Hustings Court. The case
was taken to the Court of Appeals by writ of error. That court
cited with approval
Cullen's Case, supra, and held that it
was applicable. It appeared that, in the Hustings Court, the
attorney for the Commonwealth was asked whether any prosecution was
pending against Temple in that court, or whether it was the
intention of such attorney to institute a proceeding against Temple
for being concerned in a lottery, to both of which questions he
replied in the negative.
The Court of Appeals held that Temple had a right to stand upon
his constitutional privilege, and not to trust to the chances of a
further prosecution; that the court could offer him no indemnity
that he would not be further prosecuted, nor could the attorney for
the Commonwealth; that Temple had a right to remain silent whenever
any question was asked him the answer to which might tend to
criminate himself; that the great weight of authority in the United
States was in favor of the rule that, when a witness on oath
declared his belief that his answer would tend to criminate
himself, the court could not compel him to answer unless it was
perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness was mistaken, and that
the answer could not possibly have such a tendency; and that the
Hustings Court had no right to compel Temple to answer the question
propounded to him, and to fine and imprison him for his refusal to
answer it. The court further held that the statute of the state
which provided that no witness giving evidence in a prosecution for
unlawful gaming should ever be proceeded against for any offense of
unlawful gaming committed by him at the time and place indicated in
such prosecution did not apply to the case then in hand, because
setting up a lottery was not within the statute against unlawful
gaming. The judgment of the Hustings Court was reversed.
In
Boyd v. United States, 116 U.
S. 616, in 1886, this court, in considering the Fifth
Amendment to the Constitution of
Page 142 U. S. 581
the United States, which declares that no person "shall be
compelled in any criminal case to be a witness against himself,"
and the fourth amendment, which declares that the right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
said, speaking by Mr Justice Bradley (p.
116 U. S.
631):
"And any compulsory discovery by extorting the party's oath, or
compelling the production of his private books and papers, to
convict him of crime, or to forfeit his property, is contrary to
the principles of a free government. It is abhorrent to the
instincts of an Englishman; it is abhorrent to the instincts of an
American. It may suit the purposes of despotic power, but it cannot
abide the pure atmosphere of political liberty and personal
freedom."
It was further said, (p.
116 U. S.
633):
"We have already noticed the intimate relation between the two
amendments. They throw great light on each other. For the
'unreasonable searches and seizures' condemned in the fourth
amendment are almost always made for the purpose of compelling a
man to give evidence against himself, which in criminal cases is
condemned in the Fifth Amendment; and compelling a man 'in a
criminal case to be a witness against himself,' which is condemned
in the Fifth Amendment, throws light on the question as to what is
an 'unreasonable search and seizure' within the meaning of the
fourth amendment. And we have been unable to perceive that the
seizure of a man's private books and papers to be used in evidence
against him is substantially different from compelling him to be a
witness against himself. We think it is within the clear intent and
meaning of those terms. . . . As, therefore, suits for penalties
and forfeitures incurred by the commission of offenses against the
law are of this
quasi-criminal nature, we think that they
are within the reason of criminal proceedings for all the purposes
of the fourth amendment of the Constitution, and of that portion of
the Fifth Amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself, and
we are further of opinion that a compulsory production of the
private books and papers of the owner of goods sought to be
forfeited in such a suit is compelling him
Page 142 U. S. 582
to be a witness against himself within the meaning of the Fifth
Amendment to the Constitution, and is the equivalent of a search
and seizure -- and an unreasonable search and seizure -- within the
meaning of the fourth amendment. Though the proceeding in question
is divested of many of the aggravating incidents of actual search
and seizure, yet, as before said, it contains their substance and
essence, and effects their substantial purpose. 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 principiis."
In that case, the fifth section of the Act of June 22, 1874, 18
Stat. 187, which authorized the court in revenue cases to require
the defendant or claimant to produce his private papers in court,
or else the allegations of the government's attorney would be taken
as confessed, was held to be unconstitutional and void, as applied
to a suit for a penalty or to establish a forfeiture of the goods
of the party, because it was repugnant to the fourth and Fifth
Amendments to the Constitution; and it was held that a proceeding
to forfeit the goods was a criminal case, within the meaning of the
Fifth Amendment. Mr Justice Miller, in the concurring opinion of
himself and Chief Justice Waite in the case, agreed that it was a
criminal one within the meaning of the Fifth Amendment, and that
the effect of the act of Congress was to compel the party on whom
the order of the court was served to be a witness against
himself.
In
People v. Sharp, 107 N.Y. 427, in 1887, the Court of
Appeals of New York had under consideration the provision
Page 142 U. S. 583
of Article 1, § 6, of the Constitution of New York of 1846, that
no person shall "be compelled, in any criminal case, to be a
witness against himself," and the provision of § 79 of the Penal
Code of New York, tit. 8, c. 1, in regard to bribery and
corruption, which was in these words:
"A person offending against any provision of any foregoing
section of this Code relating to bribery is a competent witness
against another person so offending, and may be compelled to attend
and testify upon any trial, hearing, proceeding, or investigation,
in the same manner as any other person. But the testimony so given
shall not be used in any prosecution or proceeding, civil or
criminal, against the person so testifying. A person so testifying
to the giving of a bribe which has been accepted shall not
thereafter be liable to indictment, prosecution, or punishment for
that bribery, and may plead or prove the giving of testimony
accordingly, in bar of such an indictment or prosecution."
Sharp and others were indicted for bribing a member of the
common council, and Sharp was tried separately. It was proved that
he had been examined as a witness before a committee of the state
senate, and there gave testimony which the prosecution claimed was
evidence of his complicity in the crime; and that testimony was
offered in evidence by the prosecution. The testimony had been
given under the compulsion of a subpoena, and was admitted at the
trial, against the objection that the disclosures before the senate
committee were privileged. The Court of Appeals held that § 79 of
the Penal Code made the constitutional privilege inapplicable
because it indemnified or protected the party against the
consequences of his previous testimony. The court cited with
approval the case of
People v. Kelly, supra.
In
Bedgood v. State, 115 Ind. 275, in 1888, the Supreme
Court of Indiana had under consideration the provision of article
1, § 14, of the bill of rights of the Constitution of Indiana of
1851, which provides that "no person in any criminal prosecution
shall be compelled to testify against himself," and the provision
of § 1800 of the Revised Statutes of Indiana of 1881, to the effect
that testimony given by a witness should not be used in any
prosecution against him. On
Page 142 U. S. 584
a trial before a petit jury in a criminal case against others, a
woman had refused to answer a question, on the ground that the
answer might criminate her. The Supreme Court held that, as the
statute prohibited her testimony from being used against her, it
completely protected her, and the judgment was reversed because the
trial court had erroneously refused to require her to answer the
question.
This review of the cases above referred to shows that, in the
Constitutions of Georgia, California, and New York, the provision
is identically or substantially that of the Constitution of the
United States, namely, that no person shall "be compelled in any
criminal case to be a witness against himself;" while, in the
Constitutions of Pennsylvania, Arkansas, Indiana, Massachusetts,
Virginia, New Hampshire, and North Carolina, it is different in
language, and to the effect that "no man can be compelled to give
evidence against himself;" or that, in prosecutions, the accused
"shall not be compelled to give evidence against himself;" or that
"no person in any criminal prosecution shall be compelled to
testify against himself;" or that no person shall be "compelled to
accuse or furnish evidence against himself;" or that no man can "be
compelled to give evidence against himself;" or that, in all
criminal prosecutions, "every man has the right to not be compelled
to give evidence against himself."
Under the Constitutions of Arkansas, Georgia, California,
Indiana, New York, New Hampshire, and North Carolina, it was held
that a given statutory provision made it lawful to compel a witness
to testify, while, in Massachusetts and Virginia, it was held that
the statutory provisions were inadequate, in view of the
constitutional provision. In New Hampshire, and in New York under
the Penal Code, it was held that the statutory provisions were
sufficient to supply the place of the constitutional provision,
because, by statute, the witness was entirely relieved from
prosecution.
But, as the manifest purpose of the constitutional provisions,
both of the states and of the United States, is to prohibit the
compelling of testimony of a self-criminating kind from a party or
a witness, the liberal construction which must be placed
Page 142 U. S. 585
upon constitutional provisions for the protection of personal
rights would seem to require that the constitutional guaranties,
however differently worded, should have as far as possible the same
interpretation, and that, where the Constitution, as in the cases
of Massachusetts and New Hampshire, declares that the subject shall
not be "compelled to accuse or furnish evidence against himself,"
such a provision should not have a different interpretation from
that which belongs to Constitutions like those of the United States
and of New York, which declare that no person shall be "compelled
in any criminal case to be a witness against himself." Under the
rulings above referred to by Chief Justice Marshall and by this
Court and those in Massachusetts, New Hampshire, and Virginia, the
judgment of the Circuit Court in the present case cannot be
sustained. It is a reasonable construction, we think, of the
constitutional provision, that the witness is protected
"from being compelled to disclose the circumstances of his
offense, the sources 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."
Emery's Case, 107 Mass. 172, 182.
It is quite clear that legislation cannot abridge a
constitutional privilege, and that it cannot replace or supply one,
at least unless it is so broad as to have the same extent in scope
and effect. It is to be noted of § 860 of the Revised Statutes that
it does not undertake to compel self-criminating evidence from a
party or a witness. In several of the state statutes above referred
to the testimony of the party or witness is made compulsory, and,
in some, either all possibility of a future prosecution of the
party or witness is distinctly taken away or he can plead in bar or
abatement the fact that he was compelled to testify.
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 Revised Statutes does not
Page 142 U. S. 586
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 constitutional
provision, a statutory enactment, to be valid, must afford absolute
immunity against future prosecution for the offense to which 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.
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 of 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.
From a consideration of the language of the constitutional
provision and of all the authorities referred to, we are clearly of
opinion that the appellant was entitled to refuse, as he did, to
answer. The judgment of the circuit court must therefore be
reversed, and the case remanded to that court with a direction to
discharge the appellant from custody on the writ of habeas
corpus.