Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1892-01-12
GRESHAM REVERSED
In the Celebrated Counselman Inter-
State Commerce Case.
THE CONSTITUTION DOES PROTECT
Witnesses in All Criminal Cases, and They
. Need Not answer
QUESTIONS THAT CRIMINATE THEM

not be compelled to testify IN any criminal
cases where the answers might tend to
criminate them in any way or subject them
to possible future prosecution. 1t is held
that the fifth amendment to the Constitu-
tion, giving persons the right TO refuse to
answer questions which might be fused
against them in criminal cases, must be
construed in its broadest sense. Such is
the decision of the United States Supreme
Court to-day in the celebrated Interstate
commerce case of Charles Counselman, ap-
pellant versus Frank Hiscock, Marshal of
the United States District Court for the
Northern district of Illinois.
This case is one of great interest to rail-
road men, and has attracted widespread at
tention 1t has been said that the effect of
a decision by courts that witnesses cannot
be compelled to testify will seriously hamper
the Interstate Commerce Commission in
the administration of the Interstate COM
merce act The Courts decision was unani-
nous.
History OF the Celebrated Case.
The Counselman case had its origin in an
investigation begun in 1890 by the grand
iurv OF the United States District Court for
tions of the interstate commerce act by
the officers and agents of the Rock Island,
the Burlington and the Chicago, st.
Paul and Kansas CITY Railway companies.
Counselman was asked whether he had
obtained from railroads coming to Chicago
from points outside the State rate for
grain transportation less than the tariff
rates. His reply to this and similar ques-
tions as to whether or not he had received
rebates drawbacks or commissions from
specially named railroads was that he de-
clined TO answer, on the ground that it
might tend to criminate him. The grand
jury reported the refusal to the District
Court, and it found that Counselman's ex-
cuses were insufficient, and directed him to
answer. He still refusing, the Court ad-
judged him in contempt, fined him $500 and
costs, and directed the marshal to take him
il custody and hold him until he should
have answered the questions asked and
others of similar import.
Judge Gresham Turned ID own.
After further proceedings the Circuit
Court. Judge Gresham delivering the opin-
ion, discharged writ of habeas corpus it
had issued Counselman pending its decision,
and made an order sustaining the District
Court. From Judge Gresham'a orde- the
appeal in this court was prosecuted and
Counselman meantime admitted to bail
Counsel for the witness (appellant), besides
urging the plea that the witness was pro-
tracted by the fifth amendment to the Con-
stltutlon from answering any questions
which might tend to criminate him in any |
case, also attacked the right of the grand |
jury TO proceed in such investigations. The |
Court, in its opinion, rendered by Justice |
Blatchford, says, however, that it does not |
find it necessary to consider any other than |
the point raised under the Constitution as |
TO the privileges of witnesses
1t is broadly contended. saws the oriuiou. |
that witness is not entitled to plead the |
of silence except in criminal |
case against himself; but such is not the |
language of the Constitution Its pro-
vision is that no person shall be compelled
IN d7sy criminal case to be witness against
himself. This provision
Must Have Bread Construction
n favor of the right which it was intended
o secure. The matter under investigation
W the grand jury was a criminal matter.
md the reason given by Counselman for
lis refusal was that his answer might tend
o criminate him. His apprehension was
hat the answers might show that he had
committed crime against the Interstate
commerce act for which he might be prose
'uted. His answers, therefore, would be
testimony against himself, and he would be
to give them in a criminal case
Il was impossible that the meaning of the
provision can only besthat n
person shall not he compelled TO be a wit
less in q criminal prosecution against him
elf The object was 10 insure that a per-
on should not be compelled, when acting
s a witness in any investigation, to give
which might tend to show that
e himself had committed a crime. The
privilege is limited to criminal matters, but
t is as broad as the mischief against which |
seeks to guard.
The Court then takes up the contention
hat the investigation before the grand iurv
-as not criminal case, but solely to ascer-
ain whether crime had beer committed, |
nd it reaches the conclusion that the cues
ions asked Counselman and his relation 10
he inquiry show that il was such case as
ntitled him to invoke the protection of the
constitution.
The Constitution Is Supreme.
The Court then considers the allegation
hat section $50 of the Revised Statutes, |
-hich saws that no evidence obtained from |
witness by means ofa judicial proceeding
hall be in any manner used against him in .
ny criminal proceeding or for the enforce
lent of any penalty or forfeiture, removes
le protection of the constitutional rrivi-
,ge of Counselmen.
The Court says this provision of course j
rotected CounSelman against the use of his | J
against himself or his property. {
ut that ii could not and would not prevent
he use of his testimony TO search out other
estimony to be used against him. IT could
OF prevent the obtaining and the use of /,
violence which should be attributed directly
the testimony he might give under COM y
ulsicn. Section $50 is not co-extensive /
18th the constitutional provision, and legis-
ttlon cannot detract from the privilege !
1orded by the Constitution. A mere act !,
Congress cannot amend the Constitution.
Legislation Cannot Change the Law. 7
The opinion of Justice Blatchford then )
lakes an exhaustive review of the decisions I
y this Court and bv State courts in cases :
rising out of the existence of similar pro-
lslons In Safe constitutions and says:
1t is quite clear that legislation cannot
OIIuee constitutional privilege, and that
ca amor replace or supply one, at least I'M
- !" = 50 oroad as to nave the same ex-
mt We are clearly of opinion
nat no statute which leaves the marty or
ltness subject TO prosecution after he an
S .eIs - .le Srlmlnattng question put to him,
In nave the effect OF supplantinp fine nrivi. |
ge conferred by the tonstitntinn df the
nlted states. Section $50 of the Revised
atutes ooes not supply Il complete protec-
on it,,.iI itotn an Ine perils against which the
prohibition was designed 10
lard, ana Is not full substitute for that
'ohlplnon. In view of the constitutional
,oVlslon a statutory enactment TO be valid
ust afford absolute immunity against fut.
e prosecution for the offense to which tbe
Iestion relates.
The Court therefore rules that Counsel
an was entitled to refuse to answer. and
rects that the Judgment of the CIrcuit
,urt be reversed and the case remanded
th direcfions to disoba-.. ~ N1'