Brown v. Walker/Dissent Gray

by Horace Gray

United States Supreme Court

161 U.S. 591

Brown  v.  Walker

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? 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 '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 otherwi e, 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, 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.

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 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 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. U.S., 116 U.S. 616, 6 Sup. Ct. 524, there came into question the validity of the fifth section of the act of June 22, 1874 (18 Stat. 186), wherein it was provided that, 'in all suits and proceedings other than criminal arising under any of the revenue laws of the United States, the attorney representing the government, whe ever 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 (15 Stat. 37), whereby it was enacted that 'no answer or other pleading of any party, and no discovery, or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreign country, shall be given in evidence or in any manner used against such party or witness, or his property or estate, in any court of the United States, or in any proceeding by or before any officer of the United States in respect to any crime, or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or witness,' 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. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and pro erty 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. 634, 635, 6 Sup. Ct. 524.

In the recent case of Counselman v. Hitchcock, 142 U.S. 547, 12 Sup. Ct. 195, 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. 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 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. 562, 12 Sup. Ct. 195.

To the argument that section 860 of the Revised Statutes, which provides that 'no pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States in any criminal proceeding, or for the enforcement of any penalty or forfeiture,' 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. 565, 12 Sup. Ct. 195.

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. or 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 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 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 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, U.S. v. Wylie, 11 Wall. 508, and Mayfield v. Richards, 115 U.S. 137, 5 Sup. Ct. 1187, 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 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. Mayor, etc., 7 Pet. 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. 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, 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 prosecut ons 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, 6 Sup. Ct. 848. 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, 15 Sup. Ct. 30, 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 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 o observation that opposite views of the validity of this provision have been expressed in the only two cases in which the question has arisen in the circuit court,-one, in the case of U.S. v. James, 60 Fed. 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.