Brown v. Walker/Opinion of the Court

by Henry Billings Brown

United States Supreme Court

161 U.S. 591

Brown  v.  Walker

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 (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. 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, 12 Sup. Ct. 195, 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 a endment was intended to guaranty. The gist of that decision is contained in the following extracts from the opinion of Mr. Justice Blatchford, 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 Case, 107 Mass. 172, 185, and in Cullen v. Com., 24 Grat. 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, M. & G. 656; Adams v. Lloyd, 3 Hurl. & N. 351; Merluzzi v. Gleeson, 59 Md. 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. It, 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 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, tha 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, 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 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 inbedded 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 Car. & P. 278; East v. Chapman, 2 Car. & P. 570, 1 Moody & M. 46; State v. K_____, 4 N. H. 562; Low v. Mitchell, 18 Me. 372; Coburn v. Odell, 10 Fost. (N. H.) 540; Town of Norfolk v. Gaylord, 28 Conn. 309; Austin v. Poiner, 1 Sim. 348; Com. v. Pratt, 126 Mass. 462; Chamberlain v. Wilson, 12 Vt. 491; Locket v. State, 63 Ala. 5; People v. Freshour, 55 Cal. 375.

So, under modern statutes permitting accused persons to take the stand in their own behalf, they may be subjected to cross-examination upon their statements. State v. Wentworth, 65 Me. 234; State v. Witham, 72 Me. 531; State v. Ober, 52 N. H. 495; Com. v. Bonner, 97 Mass. 587; Com. v. Morgan, 107 Mass. 199; Com. 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 Mer. 391, 400; Calhoun v. Thompson, 56 Ala. 166; Mahanke v. Cleland, 76 Iowa, 401, 41 N. W. 53; Weldon v. Burch, 12 Ill. 374; U.S. v. Smith, 4 Day, 123, Fed. Cas. No. 16,332; Close v. Olney, 1 Denio, 319; People v. Mather, 4 Wend. 229, 252-255; Williams v. Farrington, 2 Cox Ch. 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. Ev. §§ 454, 455; People v. Mather, 4 Wend. 229; Lohman v. People, 1 N. Y. 379; Com. v. Reberts, Brightly N. P. 109; Weldon v. Burch, 12 Ill. 374; Cundell v. Pratt, 1 Moody & M. 108; Ex parte Rowe, 7 Cal. 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. Ev. § 456. The cases of Respublica v. Gibbs, 3 Yeates, 429, and Lessee of Galbraith v. Eichelberger, Id. 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.

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 Best & 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 t at 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. 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, 280; McDonald v. Hovey, 110 U.S. 619, 4 Sup. Ct. 142.

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.

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 Tayl. Ev. § 1455, where a large number of similar acts are collated) or in this county. 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, 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, 5 Sup. Ct. 881, objection was made that a remission by the secretary of the treasury, under Rev. St. § 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 e clusive, in the sense that no other officer could remit forfeitures or penalties incurred for the violation of the laws of the United States, citing U.S. v. Morris, 10 Wheat. 246.

The distinction between amnesty and pardon is of no practical importance. It was said in Knote v. U.S., 95 U.S. 149, 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 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. Com., 78 Va. 490, a 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 Cal. 524, 38 Pac. 364, 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 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, 8 Baxt. 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, 13 Lea, 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 Ind. 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.

Finally, in People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 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 ar 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. 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 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. Mayor, 7 Pet. 243; Fox v. State, 5 How. 410; Withers v. Buckley, 20 How. 84; Twitchell v. Com., 7 Wall. 321; Presser v. State, 116 U.S. 252, 6 Sup. Ct. 580.

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, 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 U.S. v. Wylie, 11 Wall. 508; and in Mayfield v. Richards, 115 U.S. 137, 5 Sup. Ct. 1187. See, also, Mitchell v. Clark, 110 U.S. 633, 4 Sup. Ct. 170, 312. 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, 5 Sup. Ct. 247. 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 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 Best & 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 presecution be malicious, he is remediless, except so far as a recovery of osts 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 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 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 compehable to answer, and that the judgment of the court below must be affirmed.

*Mr. Justice SHIRAS, with whom concurred

Notes