Brown v. Walker/Dissent Field

by Stephen Johnson Field

United States Supreme Court

161 U.S. 591

Brown  v.  Walker

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 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 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 prosecutio 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 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 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 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 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 Hurl. & No. 351; Reg. v. Boyes, 7 Jur. (N. S.) pt. 1, p. 1158; Ex parte Reynolds, 22 Am. Law Reg. pp. 21, 28, note; Temple v. Com., 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 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. U.S., 116 U.S. 616, 635, 6 Sup. Ct. 524. 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."

'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.' 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 lleged 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.

Every one 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. 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 every one, 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 U.S. v. Collins, 1 Woods, 511, Fed. Cas. No. 14,837, 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 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 of ender 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.