Horace Gray

“ 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. ”

“ 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. ”

“ 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. ”

“ 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? ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”