The provision in the Act of February 11, 1893, c. 83, 27 Stat.
443,
"that no person shall be excused from attending and testifying
or from producing books, papers, tariffs, contracts, agreements,
and documents before the Interstate Commerce Commission, or in
obedience to the subpoena of the Commission, on the ground or for
the reason that the testimony or evidence, documentary or
otherwise, required of him may tend to criminate him or subject him
to a penalty or forfeiture: but no person shall be prosecuted or
subjected to any penalty or forfeiture for or on account of any
transaction, matter or thing concerning which he may testify, or
produce evidence, documentary or otherwise, before said Commission
or in obedience to its subpoena, or the subpoena of either of them,
or in any such case or proceeding,"
affords absolute immunity against prosecution, Federal or state,
for the offence to which the question relates, and deprives the
witness of his constitutional right to refuse to answer.
This was an appeal from an order of the Circuit Court, made upon
the return of a writ of habeas corpus, remanding the petitioner,
Brown, to the custody of the marshal, the respondent in this
case.
Page 161 U. S. 592
It appeared that the petitioner had been subpoenaed as a witness
before the grand jury, at a term of the district court for the
Western District of Pennsylvania, to testify in relation to a
charge then under investigation by that body against certain
officers and agents of the Alleghany Valley Railway Company, for an
alleged violation of the Interstate Commerce Act. Brown, the
appellant, appeared for examination, in response to the subpoena,
and was sworn. After testifying that he was auditor of the railway
company, and that it was his duty to audit the accounts of the
various officers of the company, as well as the accounts of the
freight department of such company during the years 1894 and 1895,
he was asked the question:
"Do you know whether or not the Alleghany Valley Railway Company
transported, for the Union Coal Company, during the months of July,
August, and September, 1894, coal, from any point on the Low Grade
Division of said railroad company to Buffalo, at a less rate than
the established rates in force between the terminal points at the
time of such transportation?"
To this question, he answered:
"That question, with all respect to the grand jury and yourself,
I must decline to answer for the reason that my answer would tend
to accuse and incriminate myself."
He was then asked:
"Do you know whether the Alleghany Valley Railway Company,
during the year 1894, paid to the Union Coal Company any rebate,
refund, or commission on coal transported by said railroad company,
from points on its Low Grade Division, to Buffalo, whereby the
Union Coal Company obtained a transportation of such coal between
the said terminal points at a less rate than the open tariff rate,
or the rate established by said company? If you have such
knowledge, state the amount of such rebates or 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."
Answer: "That question I must also decline to answer for the
reason already given."
Page 161 U. S. 593
The grand jury reported these questions and answers to the
court, and prayed for such order as to the court might seem meet
and proper. Upon the presentation of this report, Brown was ordered
to appear and show cause why he should not answer the said
questions or be adjudged in contempt, and, upon the hearing of the
rule to show cause, it was found that his excuses were
insufficient, and he was directed to appear and answer the
questions, which he declined to do. Whereupon he was adjudged to be
in contempt and ordered to pay a fine of five dollars, and to be
taken into custody until he should have answered the questions.
He thereupon petitioned the Circuit Court for a writ of habeas
corpus, stating, in his petition, the substance of the above facts.
The writ was issued, petitioner was produced in court, the hearing
was had, and, on the 11th day of September, 1895, it was ordered
that the petition be dismissed, the writ of habeas corpus
discharged, and the petitioner remanded to the custody of the
marshal.
From that judgment, Brown appealed to this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the court.
This case involves an alleged incompatibility between that
clause of the Fifth Amendment to the Constitution which declares
that no person "shall be compelled in any criminal case to be a
witness against himself," and the Act of Congress of February 11,
1893, c. 83, 27 Stat. 443, which enacts that
"no person shall be excused from attending and testifying or
from producing books, papers, tariffs, contracts, agreements and
documents before the interstate commerce commission, or in
obedience to the subpoena of the commission, . . . on the ground or
for the reason that the testimony or evidence, documentary or
otherwise, required of him, may tend to criminate him or subject
him to a penalty or forfeiture.
Page 161 U. S. 594
But no person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing
concerning which he may testify, or produce evidence, documentary
or otherwise, before said commission, or in obedience to its
subpoena, or the subpoena of either of them, or in any such case or
proceeding."
The Act is supposed to have been passed in view of the opinion
of this Court in
Counselman v. Hitchcock, 142 U.
S. 547, to the effect that section 860 of the Revised
Statutes, providing that no evidence given by a witness shall be
used against him, his property or estate, in any manner, in any
court of the United States, in any criminal proceeding, did not
afford that complete protection to the witness which the Amendment
was intended to guaranty. The gist of that decision is contained in
the following extracts from the opinion of Mr. Justice Blatchford
(pp. 564, 585) referring to section 860:
"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."
And again:
"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 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 prosecutions for the offense to which the question
relates."
The inference from this language is that, if the statute does
afford such immunity against future prosecution, the witness will
be compellable to testify. So also, in
Emery's
Page 161 U. S. 595
Case, 107 Mass. 172, 185, and in
Cullen v.
Commonwealth, 24 Gratt. 624, upon which much reliance was
placed in
Counselman v. Hitchcock, it was intimated that
the witness might be required to forego an appeal to the protection
of the fundamental law if he were 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. To
meet this construction of the constitutional provision, the act in
question was passed, exempting the witness from any prosecution on
account of any transaction to which he may testify. The case before
us is whether this sufficiently satisfies the constitutional
guaranty of protection.
The clause of the Constitution in question is obviously
susceptible of two interpretations. If it be construed literally,
as authorizing the witness to refuse to disclose any fact which
might tend to incriminate, disgrace or expose him to unfavorable
comments, then, as he must necessarily, to a large extent,
determine, upon his own conscience and responsibility, whether his
answer to the proposed question will have that tendency, 1 Burr's
Trial 244;
Fisher v. Ronalds, 12 C.B. 762;
Reynell v.
Sprye, 1 De Gex, McN. & G. 656;
Adams v. Lloyd, 3
H. & N. 351;
Merluzzi v. Gleeson, 59 Maryland 214;
Bunn v. Bunn, 4 De Gex, J. & S. 316;
Ex parte
Reynolds, 20 Ch.Div. 294;
Ex parte Schofield, 6
Ch.Div. 230, the practical result would be that no one could be
compelled to testify to a material fact in a criminal case unless
he chose to do so, or unless it was entirely clear that the
privilege was not set up in good faith. If, upon the other hand,
the object of the provision be to secure the witness against a
criminal prosecution which might be aided directly or indirectly by
his disclosure, then, if no such prosecution be possible -- in
other words, if his testimony operate as a complete pardon for the
offense to which it relates -- a statute absolutely securing to him
such immunity from prosecution would satisfy the demands of the
clause in question.
Our attention has been called to but few cases wherein this
provision, which is found with slight variation in the
constitution
Page 161 U. S. 596
of every State, has been construed in connection with a statute
similar to the one before us, as the decisions have usually turned
upon the validity of statutes providing, as did section 860, that
the testimony given by such witness should never be used against
him in any criminal prosecution. It can only be said, in general,
that the clause should be construed, as it was doubtless designed,
to effect a practical and beneficent purpose -- not necessarily to
protect witnesses against every possible detriment which might
happen to them from their testimony, nor to unduly impede, hinder,
or obstruct the administration of criminal justice. That the
statute should be upheld, if it can be construed in harmony with
the fundamental law, will be admitted. Instead of seeking for
excuses for holding acts of the legislative power to be void by
reason of their conflict with the Constitution or with certain
supposed fundamental principles of civil liberty, the effort should
be to reconcile them if possible, and not to hold the law invalid
unless, as was observed by Mr. Chief Justice Marshall, in
Fletcher v.
Peck, 6 Cranch, 87,
10 U. S. 128,
"the opposition between the Constitution and the law be such that
the judge feels a clear and strong conviction of their
incompatibility with each other."
The maxim "
nemo tenetur seipsum accusare" had its
origin in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons which has long obtained in
the continental system, the British throne in 1688, and the
erection of additional barriers for the protection of the people
against the exercise of arbitrary power, was not uncommon even in
England. While the admissions or confessions of the prisoner, when
voluntarily and freely made, have always ranked high in the scale
of incriminating evidence, if an accused person be asked to explain
his apparent connection with a crime under investigation, the ease
with which the questions put to him may assume an inquisitorial
character, the temptation to press the witness unduly, to browbeat
him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident
in many of the earlier
Page 161 U. S. 597
state trials, notably in those of Sir Nicholas Throckmortion,
and Udal, the Puritan minister, made the system so odious as to
give rise to a demand for its total abolition. The change in the
English criminal procedure in that particular seems to be founded
upon no statute and no judicial opinion, but upon a general and
silent acquiescence of the courts in a popular demand. But, however
adopted, it has become firmly imbedded in English, as well as in
American, jurisprudence. So deeply did the iniquities of the
ancient system impress themselves upon the minds of the American
colonists that the States, with one accord, made a denial of the
right to question an accused person a part of their fundamental
law, so that a maxim which, in England, was a mere rule of evidence
became clothed in this country with the impregnability of a
constitutional enactment.
Stringent as the general rule is, however, certain classes of
cases have always been treated as not falling within the reason of
the rule, and therefore constituting apparent exceptions. When
examined, these cases will all be found to be based upon the idea
that, if the testimony sought cannot possibly be used as a basis
for, or in aid of, a criminal prosecution against the witness, the
rule ceases to apply, its object being to protect the witness
himself and no one else, much less that it shall be made use of as
a pretext for securing immunity to others.
1. Thus, if the witness himself elects to waive his privilege,
as he may doubtless do, since the privilege is for his protection,
and not for that of other parties, and discloses his criminal
connections, he is not permitted to stop, but must go on and make a
full disclosure. 1 Greenl.Ev. § 451;
Dixon v. Vale, 1 C.
& P. 278;
East v. Chapman, 2 C. & P. 570, 1 Moody
& M. 46;
State v. K_____, 4 N.H. 562;
Low v.
Mitchell, 18 Maine 372;
Coburn v. Odell, 10 Fost.
(N.H.) 540;
Town of Norfolk v. Gaylord, 28 Connecticut
309;
Austin v. Poiner, 1 Sim. 348;
Commonwealth v.
Pratt, 126 Mass. 462;
Chamberlain v. Wilson, 12
Vermon 491;
Locket v. State, 63 Alabama 5;
People v.
Freshour, 55 California 375.
So, under modern statutes permitting accused persons to
Page 161 U. S. 598
take the stand in their own behalf, they may be subjected to
cross-examination upon their statements.
State v.
Wentworth, 65 Maine 234;
State v. Witham, 72 Maine
531;
State v. Ober, 52 N.H. 495;
Commonwealth v.
Bonner, 97 Mass. 587;
Commonwealth v. Morgan, 107
Mass. 199;
Commonwealth v. Mullen, 97 Mass. 545;
Connors v. People, 50 N.Y. 240;
People v. Casey,
72 N.Y. 393.
2. For the same reason, if a prosecution for a crime concerning
which the witness is interrogated is barred by the statute of
limitations, he is compellable to answer.
Parkhurst v.
Lowten, 1 Merivale 391, 400;
Calhoun v. Thompson, 56
Alabama 166;
Mahanke v. Cleland, 76 Iowa 401, 41 N.W. 53;
Weldon v. Burch, 12 Illinois 374;
United States v.
Smith, 4 Day 121;
Close v. Olney, 1 Denio 319;
People v. Mather, 4 Wend. 229, 252-255;
Williams v.
Farrington, 11 Cox Ch.R. 202;
Davis v. Reed, 5 Sim.
443;
Floyd v. State, 7 Tex. 215;
Maloney v. Dows,
2 Hilt. 247;
Wolfe v. Goulard, 15 Abb.Prac. 336.
3. If the answer of the witness may have a tendency to disgrace
him or bring him into disrepute, and the proposed evidence be
material to the issue on trial, the great weight of authority is
that he may be compelled to answer, although, if the answer can
have no effect upon the case except so far as to impair the
credibility of the witness, he may fall back upon his privilege. 1
Greenl. on Ev. §§ 454, 455;
People v. Mather, 4 Wend. 229;
Lohman v. People, 1 N.Y. 379;
Commonwealth v.
Reberts, Brightly 109;
Weldon v. Burch, 12 Illinois
374;
Cundell v. Pratt, 1 Moody & Malkin 108;
Ex
parte Rowe, 7 California 184. But, even in the latter case, if
the answer of the witness will not directly show his infamy, but
only tend to disgrace him, he is bound to answer. 1 Greenl. on Ev.
§ 456. The cases of
Respublica v. Gibbs, 3 Yeates 429, and
Lessee of Galbraith v. Eichelberger, 3 Yeates 515, to the
contrary are opposed to the weight of authority.
The extent to which the witness is compelled to answer such
questions as do not fix upon him a criminal culpability is within
the control of the legislature.
State v. Nowell, 58 N.H.
314, 316.
Page 161 U. S. 599
4. It is almost a necessary corollary of the above propositions
that, if the witness has already received a pardon, he cannot
longer set up his privilege, since he stands, with respect to such
offense, as if it had never been committed.
Roberts v.
Allatt, Moody & M. 192, overruling
Rex v.
Reading, 7 How.State Tr. 259, 296, and
Rex v. Earl of
Shaftesbury, 8 How.St.Tr. 817;
Reg. v. Boyes, 1 B.
& S. 311, 321. In the latter case, it was suggested, in answer
to the production by the solicitor general of a pardon of the
witness under the great seal, that, by statute, no such pardon
under the great seal was pleadable to an impeachment by the commons
in parliament; and it was insisted that this was a sufficient
reason for holding that the privilege of the witness still existed,
upon the ground that, though protected, by the pardon against every
other form of prosecution, the witness might possibly be subjected
to parliamentary impeachment. It was also contended in that case,
as it is in the one under consideration,
"that a bare possibility of legal peril was sufficient to
entitle a witness to protection; nay, further, that the witness was
the sole judge as to whether his evidence would bring him into the
danger of the law, and that the statement of his belief to that
effect, if not manifestly made
mala fide, would be
received as conclusive."
It was held, however, by Lord Chief Justice Cockburn, that,
"to entitle a party called as a witness to the privilege of
silence, the court must see, from the circumstances of the case and
the nature of the evidence which the witness is called to give,
that there is reasonable ground to apprehend danger to the witness
from his being compelled to answer,"
although,
"if the fact of the witness being in danger be once made to
appear, great latitude should be allowed to him in judging for
himself of the effect of any particular question."
"Further than this," said the chief justice,
"we are of opinion that the danger to be apprehended must be
real and appreciable, with reference to the ordinary operation of
law in the ordinary course of things; not a danger of an imaginary
and unsubstantial character, having reference to some extraordinary
and barely possible contingency, so improbable that no reasonable
man would suffer it to influence his conduct.
Page 161 U. S. 600
We think that a merely remote and naked possibility, out of the
ordinary course of the law, and such as no reasonable man would be
affected by, should not be suffered to obstruct the administration
of justice. The object of the law is no afford to a party, called
upon to give evidence in a proceeding,
inter alios,
protection against being brought by means of his own evidence
within the penalties of the law. But it would be to convert a
salutary protection into a means of abuse if it were to be held
that a mere imaginary possibility of danger, however remote and
improbable, was sufficient to justify the withholding of evidence
essential to the ends of justice."
All of the cases above cited proceed upon the idea that the
prohibition against his being compelled to testify against himself
presupposes a legal detriment to the witness arising from the
exposure. As the object of the first eight amendments to the
Constitution was to incorporate into the fundamental law of the
land certain principles of natural justice which had become
permanently fixed in the jurisprudence of the mother country, the
construction given to those principles by the English courts is
cogent evidence of what they were designed to secure and of the
limitations that should be put upon them. This is but another
application of the familiar rule that, where one State adopts the
laws of another, it is also presumed to adopt the known and settled
construction of those laws by the courts of the State from which
they are taken.
Cathcart v.
Robinson, 5 Pet. 264,
30 U. S. 280;
McDonald v. Hovey, 110 U. S. 619.
The danger of extending the principle announced in
Counselman v. Hitchcock is that the privilege may be put
forward for a sentimental reason, or for a purely fanciful
protection of the witness against an imaginary danger, and for the
real purpose of securing immunity to some third person, who is
interested in concealing the facts to which he would testify. Every
good citizen is bound to aid in the enforcement of the law, and has
no right to permit himself, under the pretext of shielding his own
good name, to be made the tool of others, who are desirous of
seeking shelter behind his privilege.
Page 161 U. S. 601
The act of Congress in question, securing to witnesses immunity
from prosecution, is virtually an act of general amnesty, and
belongs to a class of legislation which is not uncommon either in
England (2 Taylor on Evidence § 1455, where a large number of
similar acts are collated) or in this country. Although the
Constitution vests in the President "power to grant reprieves and
pardons for offenses against the United States, except in cases of
impeachment," this power has never been held to take from Congress
the power to pass acts of general amnesty, and is ordinarily
exercised only in cases of individuals after conviction, although,
as was said by this Court in
Ex parte
Garland, 4 Wall. 333,
71 U. S.
380,
"it extends to every offense known to the law, and may be
exercised at any time after its commission, either before legal
proceedings are taken, or during their pendency, or after
conviction and judgment."
In the case of
The Laura, 114 U.
S. 411, objection was made that a remission by the
Secretary of the Treasury, under Rev.Stat. § 4294, of penalties
incurred by a steam vessel for taking on board an unlawful number
of passengers, was ineffectual to destroy liability, by reason of
the fact that it involved an exercise of the pardoning power. It
was held that, in view of the practice in reference to remissions
by the Secretary of the Treasury and other officers, which had been
sanctioned by statute and acquiesced in for nearly a century, the
power vested in the President was not exclusive, in the sense that
no other officer could remit forfeitures or penalties incurred for
the violation of the laws of the United States, citing
United States v.
Morris, 10 Wheat. 246.
The distinction between amnesty and pardon is of no practical
importance. It was said in
Knote v. United States,
95 U. S. 149,
95 U. S.
152,
"The Constitution does not use the word 'amnesty,' and, except
that the term is generally applied where pardon is extended to
whole classes or communities, instead of individuals, the
distinction between them is one rather of philological interest
than of legal importance."
"Amnesty" is defined by the lexicographers to be an act of the
sovereign power granting oblivion, or a general pardon for a
Page 161 U. S. 602
past offense, and is rarely, if ever, exercised in favor of
single individuals, and is usually exerted in behalf of certain
classes of persons, who are subject to trial, but have not yet been
convicted.
While the decisions of the English courts construing such acts
are of little value here, in view of the omnipotence of parliament,
such decisions as have been made under similar acts in this country
are, with one or two exceptions, we believe, unanimous in favor of
their constitutionality.
Thus, in
State v. Nowell, 58 N.H. 314, a statute which
provided that a clerk, servant, or agent should not be excused from
testifying against his principal, and that he should not thereafter
be prosecuted for any offense disclosed by him, was held to have
deprived him of his privilege of silence. In delivering the
opinion, the court observed
"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;
otherwise, the statute would be ineffectual. He is to be secured
against all liability to future prosecution as effectually as if he
were wholly innocent. This would not be accomplished if he were
left liable to prosecution criminally for any matter in respect to
which he may be required to testify. . . . The conditional
exemption becomes absolute when the witness testifies, and, being
no longer liable to prosecution, he is not compelled, by
testifying, to accuse or furnish evidence against himself. . . .
The constitutional privilege of the witness protects not another
against whom the witness testifies, but the witness himself. The
legal protection of the witness against prosecution for crime
disclosed by him is, in law, equivalent to his legal innocence of
the crime disclosed. . . . The witness, regarded in law as innocent
if prosecuted for a crime which he has been compelled by the
statute to disclose, will stand as well as other innocent persons,
and it was not the design of the common law maxim, affirmed by the
bill of rights, that he should stand any better."
In
Kendrick v. Commonwealth, 78 Virginia 490, a
Page 161 U. S. 603
statute secured to a witness, called to testify concerning
unlawful gaming, immunity against prosecution for any offense
committed by him at the time and place indicated, and it was held
that, as it gave to the witness full indemnity and assurance
against any liability to prosecution, it was his duty to testify
notwithstanding that his answer might have a tendency to disgrace
him.
The same construction was given to a similar statute of Texas in
Floyd v. State, 7 Tex. 215, though the opinion is brief,
and does little more than state the conclusions of the court.
In the recent case of
Ex parte Cohen, 104 California
524, one Steinberger was charged, under a statute of California,
with allowing Cohen to be registered as a vote, knowing that he was
not entitled to registration. Cohen, being called as a witness, was
asked certain questions with regard to the charge, and set up his
privilege. The election law of California provided not only that
the testimony given should not be used in any prosecution against
the witness, but that he should not thereafter be liable to
indictment, information, or prosecution for the offense with
reference to which his testimony was given. The court held that it
was only when his evidence might tend to establish an offense for
which he might be punished under the laws of the State that a
person is a witness "against himself" in a criminal case, and the
fact that, in a proceeding in which he is not the defendant, his
testimony might tend to show that he had violated the laws of the
State was not sufficient to entitle him to claim this protection of
the Constitution unless he is, at the same time, liable to
prosecution and punishment for such crime.
"If," said the court,
"at the time of the transactions respecting which his testimony
is sought, the acts themselves did not constitute an offense, or
if, at the time of giving the testimony, the acts are no longer
punishable; if the statute creating the offense has been repealed;
if the witness has been tried for the offense and acquitted, or, if
convicted, has satisfied the sentence of the law; if the offense is
barred by the statute of limitations, and there is no pending
prosecution
Page 161 U. S. 604
against the witness -- he cannot claim any privilege under this
provision of the Constitution, since his testimony could not be
used against him in any criminal case against himself, and,
consequently, he is not compelled to be a witness 'against
himself.' Equally is he deprived of claiming this exemption from
giving evidence if the legislature has declared that he shall not
be prosecuted or punished for any offense of which he gives
evidence. Any evidence that he may give under such a statutory
direction will not be 'against himself,' for the reason that, by
the very act of giving the evidence, he becomes exempted from any
prosecution or punishment for the offense respecting which his
evidence is given. In such a case, he is not compelled to give
evidence which may be used against himself in any criminal case,
for the reason that the legislature has declared that there can be
no criminal case against him which the evidence which he gives may
tend to establish."
In
Hirsch v. State, 67 Tennessee 89, the same
construction was given to a similar statute in Tennessee which
exempted witnesses from prosecution for offenses as to which they
had given testimony before the grand jury, the court holding that
this was "an abrogation of the offense"; that the witness could
neither be accused by another, nor could he accuse himself, and
therefore he could not criminate himself by such testimony. It is
but just to say, however, that, in
Warner v. State, 81
Tennessee 52, the same statute was construed as merely offering a
reward to a witness for waiving his constitutional privilege, and
not as compelling him to answer. But, for the reasons already
given, we think that the witness cannot properly be said to give
evidence against himself unless such evidence may in some
proceeding be used against him, or unless he may be subjected to a
prosecution for the transaction concerning which he testifies. In
each of the last two cases, there were dissenting opinions.
In
Frazee v. State, 58 Indiana 8, a section of the
Criminal Code of Indiana compelling a witness to testify against
another for gaming and providing that he should not be liable to
indictment or punishment in such case was enforced, though its
constitutionality was not considered at length.
Page 161 U. S. 605
Finally, in
People v. Sharp, 107 N.Y. 427, a section of
the Penal Code declared that any person offending against certain
provisions of the Code relating to bribery might be compelled to
testify, but that the person testifying to the giving of a bribe,
which has been accepted, shall not thereafter be liable to
indictment, prosecution, or punishment for that bribery. This
statute was held not to be violative of the constitutional
provision that no person shall be compelled in any criminal case to
be a witness against himself. Counsel in that case seem to have
pursued much the same line of argument that was made in the case
under consideration, claiming that the statutory protection did not
go far enough; that the indemnity that it offered to the witness
was partial, and not complete; that, while it might save him from
the penitentiary by excluding his evidence, it did not prevent the
infamy and disgrace of its exposure. But that, said the court,
quoting from
People v. Kelly, 24 N.Y. 74, 83, "is the
misfortune of his condition, and not any want of humanity in the
law."
It is entirely true that the statute does not purport, nor is it
possible for any statute, to shield the witness from the personal
disgrace or opprobrium attaching to the exposure of his crime; but,
as we have already observed, the authorities are numerous, and very
nearly uniform, to the effect that, if the proposed testimony is
material to the issue on trial, the fact that the testimony may
tend to degrade the witness in public estimation does not exempt
him from the duty of disclosure. A person who commits a criminal
act is bound to contemplate the consequences of exposure to his
good name and reputation, and ought not to call upon the courts to
protect that which he has himself esteemed to be of such little
value. The safety and welfare of an entire community should not be
put into the scale against the reputation of a self-confessed
criminal, who ought not, either in justice or in good morals, to
refuse to disclose that which may be of great public utility in
order that his neighbors may think well of him. The design of the
constitutional privilege is not to aid the witness in vindicating
his character, but to protect him against being compelled to
furnish evidence to convict him of a criminal
Page 161 U. S. 606
charge. If he secure legal immunity from prosecution, the
possible impairment of his good name is a penalty which it is
reasonable he should be compelled to pay for the common good. If it
be once conceded that the fact that his testimony may tend to bring
the witness into disrepute, though not to incriminate him, does not
entitle him to the privilege of silence, it necessarily follows
that, if it also tends to incriminate, but at the same time
operates as a pardon for the offense, the fact that the disgrace
remains no more entitles him to immunity in this case than in the
other.
It is argued, in this connection, that, while the witness is
granted immunity from prosecution by the federal government, he
does not obtain such immunity against prosecution in the state
courts. We are unable to appreciate the force of this suggestion.
It is true that the Constitution does not operate upon a witness
testifying in the state courts, since we have held that the first
eight amendments are limitations only upon the powers of Congress
and the federal courts, and are not applicable to the several
States except so far as the fourteenth amendment may have made them
applicable.
Barron v.
Baltimore, 7 Pet. 243;
Fox v.
State, 5 How. 410;
Withers v.
Buckley, 20 How. 84;
Twitchell
v. Commonwealth, 7 Wall. 321;
Presser v.
State, 116 U. S. 252.
There is no such restriction, however, upon the applicability of
federal statutes. The Sixth Article of the Constitution declares
that
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof, and all Treaties made, or which
shall be made, under the authority of the United States, shall be
the supreme Law of the Land; and the judges in every State shall be
bound thereby, anything in the Constitution or Laws of any State to
the contrary notwithstanding."
The language of this article is so direct and explicit that but
few cases have arisen where this Court has been called upon to
interpret it, or to determine its applicability to state courts.
But, in the case of
Stewart v.
Kahn, 11 Wall. 493, the question arose whether a
debt contracted by a citizen of New Orleans, prior to the breaking
out of the Rebellion,
Page 161 U. S. 607
was subject in a state court to the statute of limitations
passed by Congress June 11, 1864, declaring that, as to actions
which should accrue during the existence of the Rebellion, against
persons who could not be served with process by reason of the war,
the time when such persons were beyond the reach of judicial
process should not be taken or deemed to be any part of the time
limited by law for the commencement of such actions. The Court
held, unanimously, that the debt was subject to this act, and, in
delivering the opinion of the Court, Mr. Justice Swayne said:
"But it has been insisted that the Act of 1864 was intended to
be administered only in the Federal courts, and that it has no
application to cases pending in the courts of the State. The
language is general. There is nothing in it which requires or will
warrant so narrow a construction. It lays down a rule as to the
subject, and has no reference to the tribunals by which it is to be
applied. A different interpretation would defeat, to a large
extent, the object of its enactment. . . . The judicial anomaly
would be presented of one rule of property in the Federal courts,
and another and a different one in the courts of the States, and
debts could be recovered in the former which would be barred in the
latter."
This case was affirmed in
United States v.
Wylie, 11 Wall. 508, and in
Mayfield v.
Richards, 115 U. S. 137.
See also Mitchell v. Clark, 110 U.
S. 633. The same principle has also been applied in a
number of cases turning upon the effect to be given to treaties in
actions arising in the state courts.
Foster v.
Neilson, 2 Pet. 253;
Cherokee
Tobacco, 11 Wall. 616;
Head Money Cases,
112 U. S. 580. Of
similar character are the cases in which we have held that the laws
of the several States upon the subjects of pilotage, quarantines,
inspections, and other similar regulations were operative only so
long as Congress failed to legislate upon the subject.
The act in question contains no suggestion that it is to be
applied only to the Federal courts. It declares broadly that
"no person shall be excused from attending and testifying . . .
before the Interstate Commerce Commission . . . on the ground . . .
that the testimony . . . required
Page 161 U. S. 608
of him may tend to criminate him,"
etc.
"But no person shall be prosecuted or subjected to any penalty
or forfeiture for or on account of any transaction, matter, or
thing concerning which he may testify,"
etc. It is not that he shall not be prosecuted for or on account
of any crime concerning which he may testify, which might possibly
be urged to apply only to crimes under the Federal law, and not to
crimes, such as the passing of counterfeit money, etc., which are
also cognizable under state laws; but the immunity extends to any
transaction, matter, or thing concerning which he may
testify, which clearly indicates that the immunity is intended to
be general, and to be applicable whenever and in whatever court
such prosecution may be had.
But, even granting that there were still a bare possibility
that, by his disclosure, he might be subjected to the criminal laws
of some other sovereignty, that, as Chief Justice Cockburn said in
Queen v. Boyes, 1 B. & S. 311, in reply to the
argument that the witness was not protected by his pardon against
an impeachment by the House of Commons, is not a real and probable
danger, with reference to the ordinary operations of the law in the
ordinary courts, but
"a danger of an imaginary and unsubstantial character, having
reference to some extraordinary and barely possible contingency so
improbable that no reasonable man would suffer it to influence his
conduct."
Such dangers it was never the object of the provision to
obviate.
The same answer may be made to the suggestion that the witness
is imperfectly protected by reason of the fact that he may still be
prosecuted and put to the annoyance and expense of pleading his
immunity by way of confession and avoidance. This is a detriment
which the law does not recognize. There is a possibility that any
citizen, however innocent, may be subjected to a civil or criminal
prosecution, and put to the expense of defending himself; but,
unless such prosecution be malicious, he is remediless, except so
far as a recovery of costs may partially indemnify him. He may even
be convicted of a crime, and suffer imprisonment or other
punishment before his innocence is discovered; but that gives him
no claim to
Page 161 U. S. 609
indemnity against the State, or even against the prosecutor, if
the action of the latter was taken in good faith, and in a
reasonable belief that he was justified in so doing.
In the case under consideration, the grand jury was engaged in
investigating certain alleged violations of the Interstate Commerce
Act, among which was a charge against the Alleghany Valley Railway
Company of transporting coal of the Union Coal Company, from
intermediate points to Buffalo, at less than the established rates
between the terminal points, and a further charge of discriminating
in favor of such coal company by rebates, drawbacks, or commissions
on its coal, by which it obtained transportation at less than the
tariff rates. Brown, the witness, was the auditor of the road,
whose duty it was to audit the accounts of the officers, and the
money paid out by them. Having audited the accounts of the freight
department during the time in question, he was asked whether he
knew of any such discrimination in favor of the Union Coal Company,
and declined to answer upon the ground that he would thereby
incriminate himself.
As he had not apparent authority to make the forbidden
contracts, to receive the money earned upon such contracts, or to
allow or pay any rebates, drawbacks, or commissions thereon, and
was concerned only in auditing accounts, and passing vouchers for
money paid by others, it is difficult to see how, under any
construction of Section 10 of the Interstate Commerce Act, he could
be said to have willfully done anything, or aided or abetted others
in doing anything, or in omitting to do anything, in violation of
the act -- his duty being merely to see that others had done what
they purported to have done, and that the vouchers rendered by them
were genuine. But, however this may be, it is entirely clear that
he was not the chief, or even a substantial, offender against the
law, and that his privilege was claimed for the purpose of
shielding the railway or its officers from answering a charge of
having violated its provisions. To say that, notwithstanding his
immunity from punishment, he would incur personal odium and
disgrace from answering these questions seems too much like an
abuse of language to be worthy of serious
Page 161 U. S. 610
consideration. But even if this were true, under the authorities
above cited, he would still be compelled to answer if the facts
sought to be elucidated were material to the issue.
If, as was justly observed in the opinion of the court below,
witnesses standing in Brown's position were at liberty to set up an
immunity from testifying, the enforcement of the Interstate
Commerce law, or other analogous acts, wherein it is for the
interest of both parties to conceal their misdoings, would become
impossible, since it is only from the mouths of those having
knowledge of the inhibited contracts that the facts can be
ascertained. While the constitutional provision in question is
justly regarded as one of the most valuable prerogatives of the
citizen, its object is fully accomplished by the statutory
immunity, and we are therefore of opinion that the witness was
compellable to answer, and that the judgment of the court below
must be affirmed.
MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE GRAY and MR.
JUSTICE WHITE, dissenting.
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.
Did Congress, by the act of February 11, 1893, which enacted
that
"no person shall be excused from attending and testifying or
from producing books, papers, tariffs, contracts, agreements and
documents before the Interstate Commerce Commission, or in
obedience to the subpoena of the Commission, on the ground or for
the reason that the testimony or evidence, documentary or
otherwise, required of him may tend to criminate him or subject him
to a penalty or forfeiture,"
seek to compel any person to be a witness against himself? And,
if so, was such provision of that act void because incompatible
with the constitutional guaranty?
Page 161 U. S. 611
That it was the intention of the act to exact compulsory
disclosure by every witness of all "testimony or evidence,
documentary or otherwise, required of him," regardless of the fact
that such disclosure might tend to criminate him or subject him to
a penalty or forfeiture, was held by the court below, and such
seems to be the plain meaning of the language of the act.
That the questions put to the witness in the present case tended
to accuse and incriminate him was sworn to by the witness himself,
and was conceded or assumed by the court below. The refusal by the
witness, in the exercise of his constitutional immunity, to answer
the questions put was held by the court to be an act of contempt,
and the witness was ordered to pay a fine, and to be imprisoned
until he should have answered the questions.
The validity of the reasons urged in defense of the action of
the court below is the matter which this Court has to consider.
Those reasons are found in that other provision of the act which
enacts that
"[n]o person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing
concerning which he may testify, or produce evidence, documentary
or otherwise, before said Commission, or in obedience to its
subpoena, or either of them, or in any such case or
proceeding,"
and it is claimed that it was competent for Congress to avoid
the plea by a witness of his constitutional immunity, in
proceedings under the act in question, by that provision.
As the apparent purpose of the Constitution was to remove the
immunity from self-accusation from the reach of legislative power,
the first and natural impulse is to regard any act of Congress
which authorizes courts to fine and imprison men for refusing to
criminate themselves as obviously void. But it is the duty of this
Court, as the final expositor as well of the Constitution as of the
acts of Congress, to dispassionately consider and determine this
question.
It is sometimes said that if the validity of a statute is merely
doubtful, if its unconstitutionality is not plainly obvious,
Page 161 U. S. 612
the courts should not be ready to defeat the action of the
legislative branch of the government; and it must be conceded that,
when such questions arise, under the ordinary exercise of
legislative power, it is plainly the duty of the courts not to
dispense with the operation of laws formally enacted unless the
constitutional objections are clear and indisputable.
On the other hand, when the courts are confronted with an
explicit and unambiguous provision of the Constitution, and when it
is proposed to avoid or modify or alter the same by a legislative
act, it is their plain duty to enforce the constitutional provision
unless it is clear that such legislative act does not infringe it
in letter or spirit.
Before addressing ourselves immediately to the case in hand, it
may be well to examine the authorities respectively cited.
The first case in which there was any consideration of this
constitutional provision was the proceeding in the Circuit Court of
the United States for the District of Virginia in the year 1807,
wherein Aaron Burr was indicted and tried for treason, and for a
misdemeanor in preparing the means of a military expedition against
Mexico, a territory of the king of Spain, with whom the United
States were at peace.
It appears from the report of that case, as made by David
Robertson, and published in two volumes by Hopkins & Earle in
Philadelphia in 1808, that, in the first place, an application was
made to Chief Justice Marshall, sitting as a committing magistrate,
by the District Attorney of the United States, to commit the
accused on two charges: (1) for setting on foot and providing the
means for an expedition against the territories of a nation at
peace with the United States; and (2) for committing high treason
against the United States. Burr was committed to answer the first
charge only, but, at the subsequent term of the court, the
application to commit him on a charge of high treason was renewed,
testimony to sustain the charge was adduced, Burr was bound over to
answer the charge, and a grand jury was impaneled and charged by
the Chief Justice.
Page 161 U. S. 613
While the grand jury was considering the case, the District
Attorney called to be sworn Dr. Erick Bollman, with a view that he
should testify before the grand jury; and, as it appeared that the
facts to which he was expected to testify might involve him as an
accessory, the District Attorney produced and tendered the witness
a pardon by the President of the United States. This pardon the
witness declined to accept, and thereupon argument was had as to
the operation of a pardon which the witness declined to accept, and
as to whether the witness or the court was to be the judge as to
the propriety of answering the questions put. Upon those points,
the Chief Justice reserved his decision. Nor does it appear that he
made any decision, probably because Dr. Bollman went voluntarily
before the grand jury, and testified. 1 Burr's Trial, pp. 190, 193.
Subsequently, while the grand jury were still considering the case,
one Willie was called, and asked whether he had, under instructions
from Aaron Burr, copied a certain paper, which was then exhibited
to him. This question the witness refused to answer, lest he might
thereby incriminate himself. The Chief Justice, observing that, if
the witness was to decide upon this, it must be on oath,
interrogated the witness whether his answering the question would
criminate himself, to which he replied that it might in a certain
case. Thereupon the Chief Justice withheld the point for argument.
A full and able argument was had, and, after consideration, the
Chief Justice expressed himself as follows:
"When a question is propounded, it belongs to the court to
consider and to decide whether any direct answer to it can
implicate the witness. If this be decided in the negative, then he
may answer it without violating the privilege which is secured to
him by law. If a direct answer to it may criminate himself, then he
must be the sole judge what his answer would be. The court cannot
participate with him in this judgment, because they cannot decide
on the effect of his answer without knowing what it would be; and a
disclosure of that fact to the judges would strip him of the
privileges which the law allows, and which he claims. It follows,
necessarily, then, from this state of
Page 161 U. S. 614
things, that 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 court can demand no other testimony of the fact. If
the declaration be untrue, it is, in conscience and in law, as much
a perjury as if he had declared any other untruth upon his oath, as
it is one of those cases in which the rule of law must be abandoned
or the oath of the witness be received. The counsel for the United
States have also laid down this rule, according to their
understanding of it, but they appear to the court to have made it
as much too narrow as the counsel for the witness have made it too
broad. According to their statement, a witness can never refuse to
answer any question unless that answer, unconnected with other
testimony, would be sufficient to convict him of a 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 might 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 compelled 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 might form a necessary and
essential part of a crime, which is punishable
Page 161 U. S. 615
by the laws. . . . In such a case, the witness must himself
judge what his answer will be; and if he say, on oath, that he
cannot answer without accusing himself, he cannot be compelled to
answer."
1 Burr's Tr. 244, 245.
In
Boyd v. United States, 116 U.
S. 616, there came into question the validity of the
fifth section of the act of June 22, 1874, c. 391, 18 Stat. 186,
wherein it was provided that,
"[i]n all suits and proceedings other than criminal arising
under any of the revenue laws of the United States, the attorney
representing the government, whenever in his belief any business
book, invoice or paper belonging to, or under the control of, the
defendant or claimant will tend to prove any allegation made by the
United States, may make a written motion, particularly describing
such book, invoice or paper, and setting forth the allegation which
he expects to prove; and thereupon the court in which suit or
proceeding is pending may, at its discretion, issue a notice to the
defendant or claimant to produce such book, invoice or paper in
court, at a day and hour to be specified in said notice, which,
together with a copy of said motion, shall be served formally on
the defendant or claimant by the United States marshal by
delivering to him a certified copy thereof, or otherwise serving
the same as original notices of suits in the same court are served;
and if the defendant or claimant shall fail or refuse to produce
such book, invoice or paper, in obedience to such notice, the
allegations stated in the said motion shall be taken as confessed,
unless his failure or refusal shall be explained to the
satisfaction of the court."
This section was held to be unconstitutional and void as applied
to suits for penalties, or to establish a forfeiture of the party's
goods, as being repugnant to the Fourth and Fifth Amendments of the
Constitution.
It was contended on behalf of the government that the act of
February 25, 1868, c. 13, 15 Stat. 37, whereby it was enacted
that
"[n]o 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
Page 161 U. S. 616
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,"
relieved the act of June 22, 1874, of the objections made. But
this Court said, by Mr. Justice Bradley:
"No doubt it was supposed that in this new form, couched, as it
was, in almost the language of the fifteenth section of the old
Judiciary Act, except leaving out the restriction to cases in which
the court of chancery would decree a discovery, it would be free
from constitutional objection. But we think it has been made to
appear that this result has not been attained, and that the law,
though speciously worded, is still obnoxious to the prohibition of
the Fourth Amendment of the Constitution, as well as of the
Fifth."
Other observations made by Mr. Justice Bradley in that case are
worthy to be quoted:
"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 to be a witness against himself within the
meaning of the Fifth Amendment of 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.
Page 161 U. S. 617
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.' We have no doubt that the legislative body is
actuated by the same motives, but the vast accumulation of public
business brought before it sometimes prevents it, on a first
presentation, from noticing objections which become developed by
time and the practical application of the objectionable law."
116 U.S. at
116 U. S.
634-635.
In the recent case of
Counselman v. Hitchcock,
142 U. S. 547,
there was a proceeding before a grand jury to investigate certain
alleged violations of the act to regulate commerce, and one Charles
Counselman, having appeared before the grand jury and been sworn,
declined to answer certain questions put to him on the ground that
the answers might tend to criminate him. The District Court of the
United States for the Northern District of Illinois, after a
hearing, adjudged Counselman to be in contempt of court, and made
an order fining him, and directing that he be kept in custody by
the marshal until he should have answered said questions.
Thereupon, Counselman filed a petition in the Circuit Court of the
United States, setting forth the facts, and praying for a writ of
habeas corpus. That court held that the District Court was in the
exercise of its lawful authority in doing what it had done,
dismissed Counselman's petition, and remanded him to the custody of
the marshal. 44 Fed.Rep. 268. An appeal was taken to this Court, by
which the judgment of the Circuit Court was reversed, and the cause
was remanded to that court, with a direction to discharge the
appellant from custody. Mr. Justice Blatchford, in delivering the
opinion of the Court, made a careful review of the adjudged cases,
including several decisions in states where there is a like
constitutional provision to that contained in
Page 161 U. S. 618
the Federal Constitution, and where attempts had been made by
legislation to avoid the constitutional provision by substituting
provisions relieving the witness from future criminal prosecution.
It is needless to here examine those cases.
The contention there made on behalf of the government was that a
witness is not entitled to plead the privilege of silence except in
a criminal case against himself; but this Court said:
"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 a ting as a witness in any investigation, to give testimony
which might tend to show that he had himself committed a crime. The
privilege is limited to criminal matters, but it is as broad as the
mischief against which it seeks to guard."
142 U.S. at
142 U. S.
562.
Page 161 U. S. 619
To the argument that Section 860 of the Revised Statutes, which
provides that
"[n]o 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,"
removed the constitutional privilege of Counselman, the Court
said:
"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. 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 would not prevent the obtaining and
the use of witnesses and evidence which should be attributable
directly to the testimony which 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
shall not 'be compelled in any criminal case to be a witness
against himself'; and the protection of section 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."
142 U.S. at
142 U. S.
565.
Page 161 U. S. 620
It is, however, now contended, and that is the novel feature of
the present case, that the following provision in the act of
February 11, 1893, removes the constitutional difficulty:
"But no person shall be prosecuted or subjected to any penalty
or forfeiture for or on account of any transaction, matter or
thing, concerning which he may testify, or produce evidence,
documentary or otherwise, before said commission."
And it is surmised that this proviso was enacted in view of a
suggestion to that effect in the opinion in the
Counselman
case.
It is, indeed, true that Mr. Justice Blatchford did say 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 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."
And it may be inferred from this language that there might be
framed a legislative substitute for the constitutional privilege
which would legally empower a court to compel an unwilling witness
to criminate himself. But the case did not call for such expression
of opinion, nor did Mr. Justice Blatchford undertake to suggest the
form of such an enactment. Indeed, such a suggestion would not have
comported with his previous remarks, above cited, that
"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."
Is, then, the undeniable repugnancy that exists between the
constitutional guaranty and the compulsory provisions of the
Page 161 U. S. 621
Act of February 11, 1893, overcome by the proviso relieving the
witness from prosecution and from any penalty or forfeiture "for or
on account of any transaction, matter or thing, concerning which he
may testify or produce evidence"?
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. It may not be said that by no
form of enactment can Congress supply an adequate substitute, but
doubtfulness of its entire sufficiency, uncertainty of its meaning
and effect, will be fatal defects.
What, then, is meant by the clause in this act that
"no person shall be prosecuted . . . for or on account of any
transaction, matter or thing, concerning which he may testify, or
produce evidence, documentary or otherwise?"
How possibly can effect be given to this provision if taken
literally? If a given person is charged with a willful violation of
the Interstate Commerce Act, how can the prosecuting officers or
the grand juries know whether he has been examined as a witness
concerning the same matter before the commission or some court? Nor
can the accused himself necessarily know what particular charge has
been brought against him until an indictment has been found. But
when an indictment has been found, and the accused has been called
upon to plead to it, he assuredly has been prosecuted. So that all
that can be said is that the witness is not protected by the
provision in question from being prosecuted, but that he has been
furnished with a good plea to the indictment, which will secure his
acquittal. But is that true? No, unless the plea is sustained by
competent evidence. His condition, then, is that he has been
prosecuted, been compelled presumably, to furnish bail, and put to
the trouble and expense of employing counsel and furnishing the
evidence to make good his plea. It is no reply to this to say that
his condition in those respects is no worse than that of any other
innocent man who may be wrongfully charged. The latter has not been
compelled, on penalty of
Page 161 U. S. 622
fine and imprisonment, to disclose, under oath, facts which have
furnished a clue to the offense with which he is charged.
Nor is it a matter of perfect assurance that a person who has
compulsorily testified before the commission, grand jury, or court
will be able, if subsequently indicted for some matter or thing
concerning which he testified, to procure the evidence that will be
necessary to maintain his plea. No provision is made in the law
itself for the preservation of the evidence. Witnesses may die or
become insane, and papers and records may be destroyed by accident
or design.
Again, what is the meaning of the clause of the act that "no
person so testifying shall be exempt from prosecution and
punishment for perjury committed in so testifying"? The implication
would seem to be that, except for such a clause, perjury could not
be imputed to a witness who had been compelled to so testify.
However that may be, and whether or not the clause is surplusage,
it compels attention to the unfortunate situation in which the
witness is placed by the provisions of this act. If he declines to
testify on the ground that his answer may incriminate himself, he
is fined and imprisoned. If he submits to answer, he is liable to
be indicted for perjury by either or both of the parties to the
controversy. His position in this respect is not that of ordinary
witnesses testifying under the compulsion of a subpoena. His case
is that of a person who is exempted by the Constitution from
testifying at all in the matter. He is told, by the act of
Congress, that he must, nevertheless, testify, but that he shall be
protected from any prosecution, penalty, or forfeiture by reason of
so testifying. But he is subjected to the hazard of a charge of
perjury, whether such charge be rightfully or wrongfully made. It
does not do to say that other witnesses may be so charged, because,
if the privilege of silence, under the constitutional immunity, had
not been taken away, this witness would not have testified, and
could not have been subjected to a charge of perjury.
Another danger to which the witness is subjected by the
withdrawal of the constitutional safeguard is that of a prosecution
in the state courts. The same act or transaction
Page 161 U. S. 623
which may be a violation of the Interstate Commerce Act may also
be an offense against a state law. Thus, in the present case, the
inquiry was as to supposed rebates on freight charges. Such
payments would have been in disregard of the Federal statute, but a
full disclosure of all the attendant facts (and, if he testify at
all, he must answer fully) might disclose that the witness had been
guilty of embezzling the moneys intrusted to him for that purpose,
or it might have been disclosed that he had made false entries in
the books of the state corporation in whose employ he was acting.
These acts would be crimes against the State, for which he might be
indicted and punished, and he may have furnished, by his testimony
in the Federal court or before the commission, the very facts, or,
at least, clues thereto, which led to his prosecution.
It is, indeed, claimed that the provisions under consideration
would extend to the state courts, and might be relied on therein as
an answer to such an indictment. We are unable to accede to such a
suggestion. As Congress cannot create state courts, nor establish
the ordinary rules of property and of contracts, nor denounce
penalties for crimes and offenses against the States, so it cannot
prescribe rules of proceeding for the state courts. The cases of
Stewart v.
Kahn, 11 Wall. 493,
United
States v. Wylie, 11 Wall. 508, and
Mayfield v.
Richards, 115 U. S. 137, are
referred to as sustaining the proposition. Those were cases
defining the scope and effect of the act of Congress of June 11,
1864, providing that, as to actions which should accrue, during the
existence of the Rebellion, against persons who could not be served
with process by reason of the war, the time when such persons were
beyond the reach of process should not be taken or deemed to be any
part of the time limited by law for the commencement of such
actions. And it was held that it was the evident intention of
Congress that the act was to apply to cases in state as well as in
Federal courts, and as to the objection that Congress had no power
to lay down rules of action for the state courts, it was held that
the act in question was within the war power as an act to remedy an
evil which was one of the
Page 161 U. S. 624
consequences of the war, Mr. Justice Swayne saying:
"The war power is not limited to victories in the field and the
dispersion of the insurgent forces. It carries with it inherently
the power to guard against the immediate renewal of the conflict,
and to remedy the evils which have arisen from its rise or
progress. This act falls within the latter category. The power to
pass it is necessarily implied from the power to make war and
suppress insurrections. It is a beneficent exercise of this
authority. It only applies coercively the principle of the law of
nations, which ought to work the same results in the courts of all
the rebellious States without the intervention of this
enactment."
Whatever may be thought of these cases, and of the reasoning on
which they proceed, it is plain that they are not applicable to the
present statute. The latter does not, in express terms nor by
necessary implication, extend to the state courts; and, if it did,
it could not be sustained as an exercise of the war power. On this
part of the subject, it will be sufficient to cite the language of
Chief Justice Marshall in giving the opinion of the court in the
case of
Barron v.
Baltimore, 7 Pet. 243,
32 U. S.
247:
"The judgment brought up by this writ of error having been
rendered by the court of a State, this tribunal can exercise no
jurisdiction over it unless it be shown to come within the
provisions of the twenty-fifth section of the Judiciary Act."
"The plaintiff in error contends that it comes within the clause
in the Fifth Amendment to the Constitution which inhibits the
taking of private property for public use without just
compensation. He insists that this amendment, being in favor of the
liberty of the citizen, ought to be so construed as to restrain the
legislative power of a State, as well as that of the United States.
If this proposition be untrue, the court can take no jurisdiction
of the cause. The question thus presented is, we think, of great
importance, but not of much difficulty."
"The Constitution was ordained and established by the people of
the United States for themselves, for their own government, and not
for the government of the individual States.
Page 161 U. S. 625
Each State established a Constitution for itself, and, in that
Constitution, provided such limitations and restrictions on the
powers of its particular government as its judgment dictated. The
people of the United States framed such a government for the United
States as they supposed best adapted to their situation and best
calculated to promote their interests. The powers they conferred on
this government were to be exercised by itself; and the limitations
on power, if expressed in general terms, are naturally, and, we
think, necessarily, applicable to the government created by the
instrument. They are limitations of power granted in the instrument
itself, not of distinct governments framed by different persons and
for different purposes."
"If these propositions be correct, the Fifth Amendment must be
understood as restraining the power of the general government, not
as applicable to the States. In their several Constitutions, they
have imposed such restriction on their respective governments as
their own wisdom suggested; such as they deemed most proper for
themselves. It is a subject on which they judge exclusively, and
with which others interfere no further than they are supposed to
have a common interest. . . . We are of opinion that the provision
in the Fifth Amendment to the Constitution, declaring that private
property shall not be taken for public use without just
compensation is intended solely as a limitation on the exercise of
power by the government of the United States, and is not applicable
to the legislation of the States."
This result has never since been questioned. As, then, the
provision of the Constitution of the United States which protects
witnesses from self-incrimination cannot be invoked in a state
court, so neither can the Congressional substitute therefor.
It is urged that, even if the state courts would not be
compelled to respect the saving clause of the Federal statute in
respect to crimes against the State, yet that such a jeopardy is
too remote to be considered. The force of this contention is not
perceived. On the contrary, such is the nature of the commerce
which is controlled by the Interstate Commerce law,
Page 161 U. S. 626
so intimately involved are the movements of trade and
transportation, as well within as between the States, that just
such questions as those which are now considered may be naturally
expected to frequently arise.
It is said that the constitutional protection is solely against
prosecutions of the government that grants it, and that, in this
case, the questions asked the witness related exclusively to
matters of interstate commerce, in respect of which there can be
but one sovereign; that his refusal to answer related to his fear
of punishment by that sovereign, and to nothing else; and that no
answer the witness could make could possibly tend to criminate him
under the laws of any other government, be it foreign or state.
But, as we have seen, it is entirely within the range of
probable events that the very same act or transaction may
constitute a crime or offense against both governments, state and
Federal. This was manifested in the case of
Ex parte
Fonda, 117 U. S. 516.
That was an original application to this Court for a writ of habeas
corpus by one who was a clerk in a national bank, and who alleged
in his petition that he had been convicted in one of the courts of
Michigan under a statute of that State, and sentenced to
imprisonment for having embezzled the funds of that banking
institution. The principal ground upon which he asked for a writ of
habeas corpus and for his discharge from custody was that the
offense for which he was tried was covered by the statutes of the
United States, and was therefore exclusively cognizable by the
Federal courts. But this Court refused the application, without,
however, deciding whether the same act was or was not an offense
against both governments. A similar question was presented in
New York v. Eno, 155 U. S. 98,
and these observations were made by Mr. Justice Harlan, who
delivered the opinion of the Court:
"Whether the offenses described in the indictment against Eno
are offenses against the State of New York, and punishable under
its laws, or are made by existing statutes offenses also against
the United States, and are exclusively cognizable by courts of the
United States, and whether the same acts on the part of the accused
may
Page 161 U. S. 627
be offenses against both the national and state governments, and
punishable in the judicial tribunals of each government without
infringing upon the constitutional guaranty against being put twice
in jeopardy for the same offense, these are questions which the
state court of original jurisdiction is competent to decide in the
first instance;"
and, accordingly, the writ of habeas corpus was dismissed and
the accused was remanded to the custody of the state authorities.
But, as already observed, not only may the same act be a common
offense to both governments, but the disclosures compulsively made
in one proceeding may give clues and hints which may be
subsequently used against the witness in another, to the loss of
his liberty and property.
Much stress was laid in the argument on the supposed importance
of this provision in enabling the Commission and the courts to
enforce the salutary provisions of the Interstate Commerce Act.
This, at the best, is a dangerous argument, and should not be
listened to by a court to the detriment of the constitutional
rights of the citizen. 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 fetters
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 certain that a sure and
sufficient substitute for the 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?
It is worthy of observation that opposite views of the validity
of this provision have been expressed in the only two cases
Page 161 U. S. 628
in which the question has arisen in the Circuit Court -- one, in
the case of
United States v. James, 60 Fed.Rep. 257, where
the act was held void; the other, the present case. In most of the
cases cited, wherein state courts have passed upon analogous
questions, and have upheld the sufficiency of a statute dispensing
with the constitutional immunity, there have been dissenting
judges.
A final observation, which ought not to be necessary but which
seems to be called for by the tenor of some of the arguments that
have been pressed on the Court, is that the constitutional
privilege was intended as a shield for the innocent, as well as for
the guilty. A moment's thought will show that a perfectly innocent
person may expose himself to accusation, and even condemnation, by
being compelled to disclose facts and circumstances known only to
himself, but which, when once disclosed, he may be entirely unable
to explain as consistent with innocence.
But surely no apology for the Constitution, 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.
The judgment of the Circuit Court should be reversed, and the
cause remanded, with directions to discharge the accused from
custody.
I am authorized to state that MR. JUSTICE GRAY and MR. JUSTICE
WHITE concur in this dissent.
MR. JUSTICE FIELD, dissenting.
I am unable to concur with my associates in the affirmance of
the judgment of the Circuit Court of the United States for the
Western district of Pennsylvania.
The appellant and petitioner had been subpoenaed as a witness
before the grand jury, called at a term of the district court of
the same district, to testify with reference to a charge, under
investigation by that body, against certain officers and agents of
the Alleghany Valley Railroad Company, of having violated certain
provisions of the Interstate Commerce Act. Several interrogatories
were addressed by the grand jury to the witness, which he refused
to answer on the ground that his answers might tend to criminate
him. On a
Page 161 U. S. 629
rule to show cause why he should not be punished for a contempt
and be compelled to answer, he invoked his constitutional privilege
of silence.
It is stated in the brief of counsel that no question was raised
as to the good faith of the appellant, the petitioner, in invoking
this privilege, but the ground was taken, and held to be
sufficient, that, under the statute of Congress of February 11,
1893, he was bound to answer the questions. On his still persisting
in his refusal, he was adjudged guilty of contempt, and committed.
He then sued out a writ of habeas corpus from the Circuit Court,
and, on the production of his body before that court and the return
of the marshal, the same position was taken, and the statute was
held valid and sufficient to require him to answer, and he was
accordingly remanded. From the order remanding him, and thus
adjudging the statute to be valid and constitutional in requiring
the witness to answer the inquiries propounded to him,
notwithstanding his invoking the privilege of exemption from
answering when, upon his statement, his answer would tend to
criminate himself, the petitioner appealed to this Court.
The Fifth Amendment of the Constitution of the United States
declares that no person shall be compelled, in any criminal case,
to be a witness against himself. The act of Congress of February
11, 1893, entitled
"An act in relation to testimony before the Interstate Commerce
Commission, and in cases or proceedings under or connected with an
act entitled 'An act to regulate commerce,' approved February 4,
1887, and amendments thereto,"
provides as follows
"That no person shall be excused from attending and testifying
or from producing books, papers, tariffs, contracts, agreements and
documents before the Interstate Commerce Commission, or in
obedience to the subpoena of the Commission, whether such subpoena
be signed or issued by one or more Commissioners, or in any cause
or proceeding, criminal or otherwise, based upon or growing out of
any alleged violation of the act of Congress entitled 'An act to
regulate commerce,' approved February 4, 1887, or of any amendment
thereof on the ground or for the reason that the testimony or
evidence, documentary
Page 161 U. S. 630
or otherwise, required of him, may tend to criminate him or
subject him to a penalty or forfeiture. But no person shall be
prosecuted or subjected to any penalty or forfeiture for or on
account of any transaction, matter or thing, concerning which he
may testify, or produce evidence, documentary or otherwise, before
said Commission, or in obedience to its subpoena, or the subpoena
of either of them, or in any such case or proceeding:
Provided, that no person so testifying shall be exempt
from prosecution and punishment for perjury committed in so
testifying. Any person who shall neglect or refuse to attend and
testify, or to answer any lawful inquiry, or to produce books,
papers, tariffs, contracts, agreements and documents required if in
his power to do so, in obedience to the subpoena or lawful
requirement of the Commission, shall be guilty of an offense, and
upon conviction thereof by a court of competent jurisdiction shall
be punished by fine not less than one hundred dollars nor more than
five thousand dollars, or by imprisonment for not more than one
year, or, by both such fine and imprisonment."
The Fifth Amendment of the Constitution of the United, States
gives absolute protection to a person called as a witness in a
criminal case against the compulsory enforcement of any criminating
testimony against himself. He is not only protected from any
criminating testimony against himself relating to the offense under
investigation, but also relating to any act which may lead to a
criminal prosecution therefor.
No substitute for the protection contemplated by the amendment
would be sufficient were its operation less extensive and
efficient.
The constitutional amendment contemplates that the witness shall
be shielded from prosecution by reason of any expressions forced
from him while 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 guaranty
are in no respect to be weakened or modified, and the like
consideration
Page 161 U. S. 631
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 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.
The constitutional guaranty is not fully secured by simply
exempting the witness from prosecution for the designated offense
involved in his answer as a witness. It extends to exemption from
not only prosecution for the offense under consideration, but from
prosecution for any offense to which the testimony produced may
lead.
The witness is entitled to the shield of absolute silence
respecting either. It thus exempts him from prosecution beyond the
protection conferred by the act of Congress. It exempts him where
the statute might subject him to self-incrimination.
The amendment also protects him from all compulsory testimony
which would expose him to infamy and disgrace, though the facts
disclosed might not lead to a criminal prosecution. It is
contended, indeed, that it was not the object of the constitutional
safeguard to protect the witness against infamy and disgrace. It is
urged that its sole purpose was to protect him against
incriminating testimony with reference to the offense under
prosecution. But we do not agree that such limited protection was
all that was secured. As stated by counsel of the appellant,
"it is entirely possible, and certainly not impossible, that the
framers of the Constitution reasoned that, in bestowing upon
witnesses in criminal cases
Page 161 U. S. 632
the privilege of silence when in danger of self-incrimination,
they would at the same time save him in all such cases from the
shame and infamy of confessing disgraceful crimes, and thus
preserve to him some measure of self-respect. . . . It is true, as
counsel observes, that both the safeguard of the Constitution and
the common law rule spring alike from that sentiment of personal
self-respect, liberty, independence, and dignity which has
inhabited the breasts of English-speaking peoples for centuries,
and to save which 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
the legal compulsion upon witnesses to make concessions which must
cover the witness with lasting shame and leave him degraded both in
his own eyes and those of others. What can be more abhorrent . . .
than to compel a man who has fought his way from obscurity to
dignity and honor to reveal crimes of which he had repented, and of
which the world was ignorant?"
This Court has declared, as stated, that
"no attempted
substitute for the constitutional
safeguard is sufficient unless it is a
complete
substitute. Such is not the nature and effect of this statute of
Congress under consideration. A witness, as observed by counsel,
called upon to testify to something which will incriminate him,
claims the benefit of the safeguard. He is told that the statute
fully protects him against prosecution for his crime. 'But,' he
says, 'it leaves me covered with infamy, and unable to associate
with my fellows.' He is then told that,
under the rule of the
common law, he would not have been protected against mere
infamy, and that the constitutional provision does not assume to
protect against infamy
alone, and that it should not be
supposed that its object was to protect against infamy even when
associated with crime. But he answers: 'I am not claiming any
common law privilege, but this particular constitutional safeguard.
What its purpose was does not matter. It saves me from infamy, and
you furnish me with no
equivalent unless, by such
equivalent, I am equally saved from infamy.'"
And it is very justly
Page 161 U. S. 633
urged that
"a statute is not a full equivalent under which a witness may be
compelled to cover himself with the infamy of a crime, even though
he may be armed with a protection against its merely penal
consequences."
In
Respublica v. Gibbs, 3 Yeates 429, in the Supreme
Court of Pennsylvania, an indictment was found against the
defendant for violation of the law passed in 1799 to regulate the
general elections within the Commonwealth. One Benjamin Gibbs, the
father of the defendant, a blind and aged man, entitled as an
elector, being both a native and an elector above 30 years, who had
paid taxes for many years, was led to the election ground by his
son, and offered his vote. He was told that, previous to his vote
being received, he must answer, upon oath or affirmation, the
following questions, to-wit:
"Did you at all times during the late Revolution continue in
allegiance to this State or some one of the United States, or did
you join the British forces, or take the oath of allegiance to the
king of Great Britain, and, if so, at what period? Have you ever
been attainted of high treason against this Commonwealth, and, if
you have, has the attainder been reversed, or have you received a
pardon?"
In the litigation which followed these proceedings, counsel
stated that the Constitution of Pennsylvania, formed on the 28th of
September, 1776, directs that "no man can be compelled to give
evidence against himself," and that the same words were repeated in
the Constitution of 1790; and it was contended that the true
meaning of the Constitution and law was that no question should be
asked a person, the answer to which may tend to charge him either
with a crime, or bring him into disgrace or infamy.
The Chief Justice, Shippen, in his charge of the court, among
other things, said:
"It has been objected that the questions propounded to the
electors contravene an established principle of law. The maxim is
'
nemo tenetur seipsum accusare (sen prodere).' It [the
maxim] is founded on the best policy, and runs throughout our whole
system of jurisprudence. It is the uniform practice of courts of
justice as to witnesses and jurors. It is considered cruel and
unjust to
Page 161 U. S. 634
propose questions which may tend to criminate the party. And so
jealous have the legislature of this commonwealth been of this mode
of discovery of facts that they have refused their assent to a bill
brought in to compel persons to disclose on oath papers as well as
facts relating to questions of mere property. And may we not justly
suppose that they would not be less jealous of securing our
citizens against this mode of self-accusation? The words
accusare and
prodere are general terms, and their
sense is not confined to cases where the answers to the questions
proposed would induce to the punishment of the party. If they would
involve him in shame or reproach, he is under no obligation to
answer them. The avowed object of putting them is to show that the
party is under a legal disability to elect or be elected, and they
might create an incapacity to take either by purchase or descent,
to be a witness or juror, etc. We are all clear on this point that
the inspectors were not justified in proposing the question
objected to, though it is probable they did not wrong
intentionally. Nevertheless, if, by exacting a illegal oath, the
election was obstructed or interrupted, it seems most reasonable to
attribute it to them."
And in
Galbreath v. Eichelberger, reported in that
volume, 3 Yeates 515, it was held by the same Court that "no one
will be compelled to be sworn as a witness whose testimony tends to
accuse himself of an immoral act."
It is conceded as an established doctrine, universally assented
to, that a witness claiming his constitutional privilege cannot be
questioned concerning the way in which he fears he may incriminate
himself, or, at least, only so far as may be needed to satisfy the
court that he is making his claim in good faith, and not as a
pretext.
Fisher v. Ronalds, 12 C.B. 762;
Adams v.
Lloyd, 3 H. & N. 351;
Reg. v. Boyes, 7 Jur.N.S.
Part 1, p. 1158; Ex parte Reynolds, 22 Am.Law Rev. 21, note, p. 28;
2 Cr.Law Mag. 645, note, 654.
To establish such good faith on the part of the witness in
claiming his constitutional privilege of exemption from
self-incrimination, where he is examined as a witness in a
criminal
Page 161 U. S. 635
case, he may be questioned as to his apprehension of criminating
himself by his answer, but no further.
The position that, if witnesses are allowed to assert an
exemption from answering questions when, in their opinion, such
answers may tend to incriminate them, the proof of offenses like
those prescribed by the Interstate Commerce Act will be difficult,
and probably impossible, ought not to have a feather's weight
against the abuses which would follow necessarily the enforcement
of criminating testimony. The abuses and perversions of sound
principles which would creep into the law by yielding to arguments
like these -- to what is supposed to be necessary for the public
good -- cannot be better stated than it was by the late Justice
Bradley in
Boyd v. United States, 116 U.
S. 616,
116 U. S. 635.
Said the learned justice:
"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 substance. It is the duty of
courts to be watchful for the constitutional rights of the
citizens, and against any stealthy encroachments thereon. Their
motto should be '
obsta principiis.'"
As said by counsel for the appellant:
"The freedom of thought, of speech, and of the press; the right
to bear arms; exemption from military dictation; security of the
person and of the home; the right to speedy and public trial by
jury; protection against oppressive bail and cruel punishment --
are, together with exemption from self-crimination, the essential
and inseparable features of English liberty. Each one of these
features had been involved in the struggle above referred to in
England within the century and a half immediately preceding the
adoption of the Constitution, and the contests were fresh in the
memories and traditions of the people at that time."
Boyd v. United States, supra, at
116 U. S.
626.
Page 161 U. S. 636
The Act of Congress of February 11, 1893, very materially
qualifies the constitutional privilege of exemption of a witness,
in a criminal case, from testifying, and removes the security
against unreasonable searches and seizures which is also provided
by the Constitution against the exposure of one's private books and
papers.
The Fourth Amendment of the Constitution, 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," is equally encroached upon by the law in
question.
The position of the respondent that the witness can lawfully be
compelled to answer on the ground that the act of Congress, in
effect, abrogates the constitutional privilege in providing that
the punishment of the alleged offense in relation to which the
witness was sought to be examined shall not be imposed in case he
answers the interrogatories propounded, is not sound, on two
grounds: first, because the statute could not abrogate or in any
respect diminish the protection conferred by the constitutional
amendment; and, secondly, because the statute does not purport to
abrogate the offense, but only provides protection against any
proceeding to punish it. The constitutional safeguards for security
and liberty cannot be thus dealt with. They must stand as the
Constitution has devised them. They cannot be set aside and
replaced by something else, on the ground that the substitute will
probably answer the same purpose. The citizen, as observed by
counsel, is entitled to the very thing which the language of the
Constitution assures to him.
Everyone is protected by the common law from compulsory
incrimination of himself. This protection is a part of that general
security which the common law affords against defamation -- that
is, against malicious and false imputations upon one's character --
as it defends against injurious assaults upon one's person, even
though the defamation is created by publication made by himself
under compulsion. The defamation arising from self-incrimination
may be equally injurious, as if originating purely from the
maliciousness of others.
Page 161 U. S. 637
The reprobation of compulsory self-incrimination is an
established doctrine of our civilized society. As stated by
appellant's counsel, it is the "result of the long struggle between
the opposing forces of the spirit of individual liberty, on the one
hand, and the collective power of the State, on the other." As
such, it should be condemned with great earnestness.
The essential and inherent cruelty of compelling a man to expose
his own guilt is obvious to everyone, and needs no illustration. It
is plain to every person who gives the subject a moment's
thought.
A sense of personal degradation in being compelled to
incriminate one's self must create a feeling of abhorrence in the
community at its attempted enforcement.
The counsel of the appellant justly observes on this subject, as
on many of the proceedings taken to escape from the enforcement of
the constitutional and legal protection established to guard a
citizen from any unnecessary restraints upon his person, action, or
speech, that
"the proud sense of personal independence which is the basis of
the most valued qualities of a free citizen is sustained and
cultivated by the consciousness that there are limits which even
the State cannot pass in tearing open the secrets of his bosom. The
limit which the law carefully assigns to the power to make searches
and seizures proceeds from the same source."
The doctrine condemning attempts at self-incrimination is
declared in numerous cases. Starkie, in his treatise on Evidence,
observes that the rule forbidding such incrimination is based upon
two grounds -- one of policy and one of humanity;
"of policy because it would force a witness under a strong
temptation to commit perjury, and of humanity because it would be
to extort a confession by duress, every species and description of
which the law abhors."
Am.Ed., pp. 40, 41.
In
United States v. Collins, 1 Woods, 511, Mr. Justice
Bradley said: "The immunity was founded upon principles of public
policy and a just regard to the liberties of every citizen." And we
have no sympathy for the efforts of any individual or tribunal to
weaken or fritter away any of the provisions of the Constitution,
even the least, intended for
Page 161 U. S. 638
the protection of the private rights of the citizen. Those
provisions should receive the construction which would give them
the widest and most beneficent effect intended.
But there is another and conclusive reason against the statute
of Congress. It undertakes, in effect, to grant a pardon in certain
cases to offenders against the law -- that is, on condition that
they will give full answers to certain interrogatories propounded.
It declares that the alleged offender shall not be punished for his
offense upon his compliance with a certain condition. The legal
exemption of an individual from the punishment which the law
prescribes for the crime he has committed is a pardon, by whatever
name the act may be termed. And a pardon is an act of grace which
is, so far as relates to offenders against the United States, the
sole prerogative of the President to grant.
In
Ex parte
Garland, 4 Wall. 380, this Court, after stating
that the Constitution provides that the President shall have power
to grant reprieves and pardons for offenses against the United
States except in cases of impeachment, says:
"The power thus conferred is unlimited, with the exception
stated. It extends to every offense known to the law, and may be
exercised at any time after its commission, either before legal
proceedings are taken or during their pendency, or after conviction
and judgment. This power of the President is not subject to
legislative control. Congress can neither limit the effect of his
pardon nor exclude from its exercise any class of offenders. The
benign prerogative of mercy reposed in him cannot be affected by
any legislative restrictions."
Congress cannot grant a pardon. That is an act of grace which
can only be performed by the President. The constitutional
privilege invoked by the appellant should have had full effect, and
its influence should not have been weakened in any respect by the
statute which attempted to exercise a prerogative solely possessed
by the President.
The order remanding the appellant should therefore, in our
judgment, be reversed, and an order entered that he be discharged
from custody, and be set at liberty.