The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1896-03-04

counsel attacked the act OF FEBRUARY
| Ii, 1893, on constitutional grounds In
| their arguments they said the protec-
| ton against self-incrimination by the
| fifth amendment TO the constitution is
| in its very terms absolute. The words
nor shall (any person. be compelled in
any criminal action to bear witness
against himself" they asserted, confer
upon witness the privilege Of stand
| ing mute whenever called upon 10 re-
veal any fact or knowledge of which
| would aid in brining any act of his life
within the definitions Of crime Any
legislative enactment, they argued, de-
signed to compel from a witness any
self-incriminat ting testimony by relieS-
ing him of the punishment for the
crime, it matters not how complete it
may be, if il leaves the witness in any
worse condition so far as the conse-
quences of guilt are concerned than he
| would be in if he stood mute, would be
in violation of the constitution and void
Surely, said Mr.. Carter, the constitu-
tional safeguard cannot be superseded
by legislative substitute OF narrower
scope.
Ex-Sena tor Edmunds. in his argu-
ment. took the stand that the president,
by signing the act of February Il. 1898.
made proclamation of pardon for all
tify. But" he said. whether or not
congress and the president together can
grant pardons. the present case really
invoices no constitutional question of
that sort. That congress has power 20
define what acts-nOt intrinSically wick
ed at least-shall be offenses agains,
and be punishable by the law is I'M
doubted by everyone except the an
srchist. The law has. in the class of
cases Of which this is one, provided that
a designated course of conduct shall or
shall not be a crime, depending wholly
upon the circumstances which follO-w
the particular act. The moment the
doer of the act otherwise unlawful,
opens his mouth TO speak, the act Of
which he speaks becomes as TO him a
perfectly innocent one-one in respect
of which he cannot possibly criminate
himself He has. therefore. nothing 10
claim the benefit of the constitution up
on. He is not asked TO eliminate him
self, but he is asked to show himself a
pure man and public benefactor.'
The celebrated Counselman case from
Chicago will figure more or less in the
decision. In November. 1890, Charles
CounSelman was SubpOenaed to TESTIFY
before the United States grand jury in
Chicago, touching alleged violations of
the penal provisions of the interstate
commerce act. The witness refused 10
testify, on the alleged ground that his
testimony would tend TO eliminate him.
His counsel based their position on the
alleged unconstitutiOnalty of section SEQ
of the revised statutes, which provides
that witnesses shall not be excused from
testifying because their testimony may
tend to crhninate them and that such
testimony shall not be used against per-
r., Il
ceeding. Believing this 10 be Unconsti-
tutional, Counselman's lawyers advise
him to remain mute, and he was heiu in
Jail for contempt.
Presently he appealed 10 the United
States supreme court. and on January
II. 1892, that court held said section $50
of the revised statutes to be uncOnsti-
tutional and void. This statute had
been in force twenty-five years. and APP
piled as we'll TO all other misdemeanors
as to those arising under the act 10 reg
ulate commerce. The overthrow of this
statute rendered proof Of guilt under
the act impracti cable without further
legislation, and several indictments
then pending were necessarily dismiss
ed.
On December 3 1892. the interstate
commerce commission demanded strong
er legilation in conformity with that
which the supreme court had said would
be valid. The act of February IL was |
therefore enacted. 1t provides:
That no person shall he excused from |
attending and testifying or from pro- |
ducing books, papers, tariffs, contracts, |
agreements and documents before the |
interstate commerce commissioners, or |
in obedience to the subpoena of the |
commission, whether such subpoena be |
signed or issued by one or more COM
misSioners, or in any cause or proceed |
ing, criminal or otherwise, based upon |
or growing out of any alleged violation |
of the act of congress, entitled AN act |
to regulate commerce. approved FeO- |
ruary 4. 1887, or any amendment there /
of, on the ground Of for the reason that |
the testimony or evidence documentary /
or otherwise. required of him may tend !
TO crinlinate him or subject him 10 a
penalty or forfeiture. But no person |
shall be prosecuted or sub iected 10 any /
penalty or forfeiture for or on account |
of any transaction, matter or thing con-
corning which he may testify or produce
evidence, documentary or otherwise, be-
fore said commission. or in obedience TO
its subpoena. or the subpoena Of either
of them. or IN any such case or proceed
irg: Provided. that no person so testi-
flying shall be exempt from prosecution
1
in so testifying.
ANY person who shall neglect or re-
fuse to attend and testify, or to answer
any lawful inquiry, or TO produce books.
papers. tariffs, contracts. agreements
and documents, if in his power 10 do -,
in obedience 10 the subpoena or lawful
of the commission, shall b.
guilty 81 an offense. and upon oonVic-
ton thereof by a court Of competent
jurisdiction shall pc punished by a fine
not less than 400 nor more than $1,000,
Or by Imprisonment for not more than
,re year. or by both such fine and i'm
I
On February Is. 1884,. when the a. of
February IL. 1898. was in full force.
James CT. James was subpOenaed TO give
testimony before the United States
grand jury in Chicago touching ofenses
v hich were miSdemeanOrs under the act
10 regulate commerce. The witness re-
used TO testify, alleging that his testi-
nOny would tend 10 criminate- He was
-eported 10 the court by the grand jury.
rhe court discharged him or the al
eyed ground that the act Of February
] required testimony which would tend
O criminate him. and that therefore il
vas Unconstitutional The government
,ould not appeal from this ruling. and IL
vas impossible - obtain the opinion Of
he supreme court upon its Correcu lsss
lnrl the question could b. raised AID >
iifcreat ruling obtained .C another
Jurisdiction. The Brown case furnished
his opportunity. and The government
'sserly seized IT,
In deciding the Brown gESs The SUI
IRENE court VIII nos override tire opin-
on rendered in the CsUCselmsn case.
tut viii deal with the act - February
I. which was passed especially - meet =
Re views of the supreme court On con-
titutionalily as laid down in the Coun-