Owen J. Roberts

“ It is quite another to suggest that one who appears as a witness should, merely because his appearance is in obedience to a subpoena, thereby obtain immunity 'on account of any transaction, matter or thing concerning which he may testify', even though the incrimination may relate to a transaction wholly foreign to the inquiry in which the testimony is given and even though the most alert and conscientious prosecutor would not have the slightest inkling that the testimony led to a trail of self-crimination. ”

“ In the case of the Fair Labor Standards Act, as we have seen, the more meticulous phrase, 'after having claimed his privilege against self-incrimination', was in all successive bills in both the House and the Senate but it disappeared at the final stage of the enactment of the measure. No one ever suggested, so far as the available materials show, that the change in the formula implied any change as to the intended scope of the immunity provision. Style, not substance, is obviously the explanation. In the case of one statute Congress began with the new form and ended with the old one ”

“ If Congress saw fit gratuitously to confer immunity to citizens who appear as witnesses in proceedings to enforce the Motor Carrier Act of August 9, 1935, it is hard to understand why it should give such immunity only to those who after asserting their privilege, were pressed to give evidence in proceedings to enforce the Federal Power Act of August 26, 1935, and in proceedings to enforce the Public Utility Holding Company Act which became law the same day, and again should have given the privilege gratuitiously in the Industrial Alcohol Act, which became law the following day. ”

“ The earliest federal statute dealing with immunity is the Act of January 24, 1857, 11 Stat. 155, as amended by the Act of January 24, 1862, 12 Stat. 333. This legislation, relating to testimony before either House of Congress, furnished a model for later immunity provisions. Congress was careful to state precisely what it was for which immunity was given: 'No witness shall hereafter be allowed to refuse to testify to any fact or to produce any paper * * *.' 11 Stat. ”

“ The Fifth Amendment declares that 'No person * * * shall be compelled in any criminal Case to be a witness against himself.' An investigation by a grand jury is a criminal case. [4] The amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment. ”

“ Could it be that the President having proposed, and the Congress having enacted, a restrictive declaration regarding the scope of the immunity provision in order to prevent other courts from following the latitudinarian misconception of Judge Humphrey, the President and the Congress, both acting upon the advice of one of the ablest of Attorneys General, were unwittingly betrayed into introducing a new gratuity for witnesses under duty to respond to a subpoena, by giving an amnesty in exchange for the mere response? ”

“ Yet the immunity provision of the former contains the 'after having claimed,' etc. clause, and that of the latter does not. It is only fair to Congress to assume that if there was a purpose to make a difference in the demands upon citizens when they appear as witnesses under one statute rather than the other, that purpose would have been stated somewhere in the course of the legislative history. ”

“ This statute, however, became the model for immunity provisions which were enacted at various times up to 1933, including the Act of February 25, 1903, supra, with which we are here concerned. This court sustained the constitutionality of these Acts. [10]
In 1906 the District Court for the Northern District of Illinois held, in United States v. Armour & Co., 142 F. 808, that a voluntary appearance, and the furnishing of testimony and information without subpoena, operated to confer immunity from prosecution under the Sherman Act. ”

“ Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, invalidating the Act of February 25, 1868, 15 Stat. 37, R.S. § 860, the first immunity statute relating to judicial proceedings. In order to remove the gap between what this Act gave and what the Constitution was construed to require, Congress promptly passed the Act of February 11, 1893, 27 Stat. 443, 49 U.S.C.A. § 46, in order not to interrupt the effective enforcement of the Interstate Commerce Act. ”

“ The Railroad Unemployment Insurance Act, 52 Stat. 1107, 45 U.S.C.A. § 362, and the Fair Labor Standards Act of 1938, 52 Stat. 1065, 29 U.S.C.A. § 201 et seq., both became law the same day, June 25, 1938. ”