UNITED STATES v.JAMES.
ing a6mething quite different from a court of review; and, lastly, that the opposing party and the trial court may be fairly advised of the force and nature of the objection intended to be urged, arid have a fair opportunity to consider it, and, if need be, obviate it. Insurance Co. v. Frederick, 58 Fed. 144; 1 Turner v.People, 33 Mich. 363,382; Shafer v. Ferguson, 103 Ind. 90, 2 N. E. 302; State v. Hope, 100 Mo. 347, 13 S. W. 490; Lewis v. Railroad Co., 123 N. Y. 496, 50:(, 26 N. E, 357; Ward v. Wilms, (Colo. Sup.) 27 Pac. 247; People v. Nelson, 85 Cal. 421, 24 Pac. 1006; Elliott, App. Proc. §§ 770 f 779. While an. objection to testimony for the reason that it is "incompetent and immaterial" may be adequate in some cases, where the testimony is obviously or clearly inadmissible, yet, as every practitioner knows, it frequently happens that an objection in that form is not sufficient to advise the court or the opposite party of the ground on which the objection is predicated. In the present case, there is nothing in the record which fairly shows that the precise ques· tion which we are asked to determine affecting the admissibility of the testimony to which the objection relates was ever considered or determined by the trial court, and for this reason as weIl,-that is, because the objections stated were too general,-we must decline to notice the alleged erroneous rulings. For both of the reasons heretofore indicated the judgment of the circuit court is hereby affirmed.
UNITED STATES v. JAMES et at. (DIstrIct Court, N. D. Illinois. February 26, 1894.)
CONSTITUTIONAL LAW-INTERSTATE COMMERCE ACT-COMPELLING SELF-INCRIMINATION.
Act Feb. 11, 1893, whIch declares that no person shall be excused from testifying or producing documents in proceedings based upon the interstate commerce act on-the ground that it may tend to criminate him, but that he shall not be prosecuted or punished on account of any matter concerning which he may testify, violates the fourth and fifth amendments to the United States constitution, which declare that the right of the people to be secure against unreasonable searches and seizures shall not be violated, and that no person shall be compelled in any criminal case to be a witness against himself.
Rule to punish James G. James and Gordon McLeod for contempt of court in refusing to answer questions asked by the grand jury. Rule discharged. T. E. Milchrist, U. S. Dist. Atty. J. N. Jewett and Aldace F. Walker, for defendants. GROSSCUP, District Judge. The grand jurors report to the court that, on the 16th day of February instant, they were duly engaged in inquiring into certain alleged violations, in this district and division, of the interstate commerce act by the Lake Shore & Michigan Southern Railway Company, and other railroads and con'Unon carriers, and
7" C. C. A.. 122.
that..,.. . (kJame8j:being befonethem in'respon,8e,toasubpoena asac"itnes$;,and,being inquired of, respecting his k.n.owledge of the shipment of·· certain pooductB fromOhicago east at adess freight rate than·was.:natned in the.open tariffs ,then in force, decliqed to answer the:.<luestiQlJ,;fdr the reason that an answer thereto would tend to crpninate :himself personally, ot' .would disclose a soutce' of. evidence whichcwou1d'tend to criminate him personally, undel" the provisions Certain other questions of a like of tefiOrt:'Were propounded, and the' a·nswers refused by the witness substantially for the same reasons.:, On the same day' Gordon McLeod'appeared before the ,grand'jurors as a witness, and, after an8weringthat he was the general maJ;i.ager of the Merchants' Dispatch Transportation. Companty, 'at Chicago;' was asked if, in response to a subpoena to that end,hewas ready to produce certain reports, or copies,. thereof, made to the Central Traffic Association, the Trunk LinesA..ssoeiation, or' any personoonnected therewith, by the Lake Shore&: ·Michigan· Southern the Merchants' Dispatch: ffiransportation Oompany, or&ny person connected relating to the shipments'ofpropertlyfrom Chicago to points outside of the. state of lllinoisin September, 1892, and certain other documents<of·the same character. To which he responded that he was not,atld,' upon being inquired of Why not, he refused to answer the question, for the reason that the answer might tend to criminate him, or lead to disclosures that would criminate him. This report brings to the court the question whether the act of February 11, 1893, is Violative of the letter or spirit of the fourth constitution of the United States. The and fifth m;nendmentli! fourth amendment provides "that the right of the people to be secure in their persons, hOUses, papers, and effects against unreason· no.t, be violated;" and the fifth able searches and seizu.res amendment declares "that no person shall be compelled in any criminal case to be a witness against himself." The act of February 11, 1893, in prorides that no. persou. shall be excused from ,teEltifying or producing books, tariffs, contrctcts, agreements, and documents in any case or proceeding, criminal or otherwise, llased upon' the interstate commerce act, on the ground that the same may tend to criminate him,or subject him to a penalty or forfeiture, but that any person so testifying shQl1 not be prosecuted, or subjected to any p(:ID,alty or forfeiture, on account of any transaction, matter, or thing concerning which he may testify, or produce the documentary or other evidence. Every man'sIife far as .society is interested, a series of personal acts. .Each' act, not impinging unlawfully upon the rights 9f others,. or falling wj:tbJn the definitions of .the :criminal statutes, is a personal rightot ,t;he individual. . The crpn,inal code is a series qf ,definitions which,Jqr the purposes ,of public safety or welfare, designate certain of these persopal acts, either isolated, or in con· nection acts or intehtions, as crimes against the commonwealth. The identification of the acts with 'the definitions of the criminal code is dependent upon such knowledge as can be obi .
UNiTED STATES V. JAMES.
tained, either from the observation of, others, or the disclosures of the person himself. The methods of such identification have been formulated into what maybe called the science of evidence. These personal acts, however, like the events of natural law, are inter· linked with others, and are each a part only of a connected and cohering' series of acts. The student of nature uncovers her unknown events by seizing 'upon a known event, and, with the knowl· edge aildsuggestions thus acquired, proceeds according to the laws of known connection to others. Thus, an event remote from the one that is the ultimate object of the inquiry becomes the clue or break from which the process of unraveling begins. Judicial trio bunals, in search of personal acts that fall within the criminal code, are served by a like law of connection and cohesiveness. A known act in a person's life is made the beginning of the tribunal's work of unraveling, and, though apparently remote from the actual criminal deed, is so linked therewith that the judicial following out of the intervening thread will eventually bring out the full disclosure of the criminal act. The disclosure of such a remote act is therefore indirectly, but effectually, a disclosure of the crim· inal act itself. Since the Counselman Case, 142 U. S. 547, 12 Sup. Ct. 195, it is admitted law that every person is protected by the fifth amendment against self·disclosure in any proceeding, civil, or criminal, of such of his own acts as would subject either the act, or any connected act, to the dangers of incrimination. The theory of our criminal, proceeding; like that of Great Britain, is accusatory and not inquisitorial. No person can be subjected to the penalties of the law unless every fact essential to the identifi· cation of the act charged the crime is apparent from sources other than himself, or his own voluntary disclosures. The accused can stand, as against the menace of, the law's penalties, upon the sanctity of his own personal knowledge, and the constitutional guaranty pnts:'a seal upon that knowledge that no legislative or judicial hand can break. Of course, this immunity or personal right can only protect against the danger that was in contemplation of the constitution, and cannot, therefore, be diverted, as mere pretexts, to uses beyond that point. To avoid its misuse upon such pretexts, and at the same time secure to the person's knowledge the sanctity that is intended, it devolves upon the court, in each instance, to determine, from all the circumstances of the situation, when the question arises, whether the disclosure sought for carries any real menace of self·incrimination. But, while the Counselman Case establishes this guaranty to the ex· tent thus pointed out, it leaves undecided the most interesting and im, portant question connected with the subject. In the case under investi· gation now it is claimed that the act of February 11, 1893, affords all the immunity that the fifth amendment was intended to pro· vide. If the guaranty of the fifth amendment be simply against a compulsory self-invoking of the penalties and forfeitures of the law, as distinguished from the other consequences of self·accusa· tion, the claim is, in my opinion, well founded. The act of Feb,
is a . .>roadpI'Ql1i1>ition against the prosecution of Jor, any act to which the disclosure relates. ... It unquel!!re;fers to a criminal like this, and the immunity stated; in the latter of the act undou,btedly, not simplyt,o causes the, interstate commerce but to any cause OfPI'Qceeding, criminal or otherwise. It Urged with much emphasis that congress cannot compel, evenUJ),9in conditions of pardon, that which the constitution forbids, amende<l bya simple legislative act. ;rhe proposition, ,il;1 the,. ,al;l!iltract is true. If the fifth intendedw grant to"the person complete immunity the of crime, irrespective of liJup,h conseq1;lenceB, no legislative act can cut dow:n such iJ:nmunity.The prohibition against prosecution WQU141 in that 1;Ie coextensive with the right or imby tb,e cq,nstitution. But, if t\J.e fiftp amendment be simply It.gu.aranty against the law-inflicted PliLinlll and penalties . that xq:igb:tfollow compulsory self-accusation, it is.clear that the of such pains.or penalties, so far as they are applicable to .tl;leperson interested, is a complete fulfillment of the conS'titutioJ1)al! If the axnendment were madE! for that purpose only, ,it,.l!il9nly prohibitory of legi$lation that might interfere with pUJ.1)Qse. If thatpllrpose beetfectually recognized and protected in tb,!31egislative aet, it cannot.1)e said that.such act either repeal!l or;;viola,tes the Every person is subject, in reo spect .of ,.his duty to give testimony; .to the legislation of congress, power of congress in that respect is curlailed by the except as constitution. The act is operative ;upon the individual, if it preinviolate his constitutionalhnmunity; and, if that immunity· is Algainst the law-inflictedpenaIties. and forfeitures of crime only, the;abl'9Q'ation of such penalties and forfeitures prevents the legislative act and the immunity from coming in conflict·. The argu- . ment, in so far as it admits that the amendment grants an immunity against the law-inflicted pains and penalties of self-accusation only, and stilUnsists that it is a repef,l1:Qf the constitution, is fallacious, because it assumes that the langQage of the amendment is broader thl:\.n purpose. The argument introduces a confusion of terms, by giving to the language of the amendment one meaning, and to. its real intentioniR narI'Qwerone. Harmonize the language of theamendmt!nt and its supposed real purpose in one term.-as, for instance, ''No person. shall suffer the law-inflicted pains aI).d penalties of a conviction, to the bringing about of which his involuntary self-accusation has contributed/'-and the act of February 11, 1893, is at once seen to be no impingement upon the fifth amendment. The.question, then, comes back to this: What was the real purpose pf,the framers of the fifth amendment? Did they intend to guaranty immunity thereby against compulsory self-accusation of crime, so far as it might bring to the witness law-inflicted pains and penalties on.ly? Or, was it thepurpo!je to make the secrets
UNITEl> STATES t1. JAMES.
of memory, so far as they brought one's former acts within the definitions of crime, inviolate as against judicial probe or disclosure? The Counselman Case leaves this question undecided. Some of the dicta of the opinion seem to show that the court purposely left it undecided. As, for instance, the opinion states: "It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one; at least, unless it is so broad as to have the same extent in scope and effect." So far, therefore, as the supreme court of the United States is concerned, 1 regard the question as an open one. There is a long line of decisions in the several state courts upon provisions of the state constitutions identical with, or analog!fus to, the fifth amendment of the federal constitution. None of these decisions, so far as I am advised, except Respublica y. Gibbs, 3 Yeates, 429, an early Pennsylvania case, held that the immunity was against any consequence of compulsory self·accusation other than the penalties and forfeitures inflicted by the law. No decision of any state has been called to my attention in which the constitutional provision was construed in the light of a statute granting complete immunity against prosecution. There are many states, however, in which the courts of last resort have held that similar constitutional provisions are not violated by the compulsory self-accusation of a witness, where a statute exists making it unlawful to use his disclosures in any future prosecution. It is interesting to note, however, that all of these cases related to offenses, the wisdom of which were then somewhat debated questions, and the prosecution of which was, to some extent, the triumph or defeat of the prevailing .popular opinion. Thus, in Arkansas and Georgia, (State v. Quarles, 13 Ark. 307, and Higdon v. Heard, 14 Ga. 255,) the prosecution was under the gaming laws; in Indiana, (Wilkins v. Malone, 14 Ind. 153,) under the usury laws; in New York, (people v. Kelly, 24 N. Y. 74,) on an inquiry relating to bribery at an election;.in New Hampshire, (State v. Nowell, 58 N. H. 314,) under the liquor laws; and in still another New York case, (people v. Sharp, 107 N. Y. 427, 14 N. E. 319,) in a prosecution for bribery of aldermen. Some of these cases naturally aroused the indignation of community in which the court sat. All of them were cases, doubtless, where the immunity claimed by the witness aroused no just sympathy. They each presented a situation where the fifth amendment, if construed broadly, seemed to offer an obstacle to a just administration of the criminal law. All of these cases are, however, expressly overruled in the Counselman Case. There are other cages,-especially the Emery Case, 107 Mass. 172, and Cullen v. Com, 24 Grat. 624,-in which the supreme courts of the state where they arose held that the immunity granted by the constitutional provision was not simply against the use of the self-accusatory evidence in subsequent prosecutions; and the statutes to that effect did not, therefore, fully meet the constitutional requirement. These were the chief predecessors of the Counselman Case. and to that extent met with the approval of the supreme court of the United States.
case' .at bar,' like thoSe cited, inspires no wish in tlle' court 'OO'protect the witnesses. The interstate commerce act is a law pf the land, and the for the protection of, the amell.4J:nent under circumliltances which indicate: that, having violated they have ,no intention to cease violating it now. It is the of people who disbelieve in the expediency of the law against attempt to. ,enforce it. The protection is asked, not so mucb,t6'keep, inviolate: the secrets of the human breast, as to have' imnmnl:tY in a law of the land. Judged by this specificinstflnce, the f1,ft,h if construed broadly enough to affo.rd the witnesses immunity flgainst testifying, is an obstruc· tionbit4e of the administration of law. But the fifth amend· mentn,iust, not be judged bya single specific instance. It was placed. in, the organic law of the land for a purpose, and that purpose, when ascertained, must be eDiorced, howsoever it may affect sporadic Cases, or even the great body of cases, that may come before the courh ' What, tb,en, was tb,e .intention of the makers of the fifth amendment?· This can only be ascertained by transferring ourselves as nearly' as possible to the time in which they lived, and to the influences. ahd conceptions' that were, then in vogue. From the ear· liest times the governmental systems of the Anglo·Saxon and the Latin races have been widely different. Among Latin peoples the chief thought has bee:n: for their welfare and advancement as a collective entity. Thus was depressed into comparative obscurity the rights or happiness of the individual. Among Anglo-Saxons, On the contrary, the individual always remained the most promi· nent purpose in governwental conception. The man never became blended in the'mass, and his rights and personal happiness were not lost sight of in the movements of. the time. Thus it was that, while in Latin countrieEl men could be lawfully carried off, their homes and property con.fiscated, their private papers given up to the public,' and their memories searched by all the processes of menace and torture; in the British Islands the home was a castle into which tb,e sovereigp not enter, the individual could not be compelled to respond W accusation, except upon indictment by tiis peers, and. his and memory were inviolate against search. The progress ',of ',the English·speaking people to the highest form of, civil and '.l'eligious liperty is not adventitious or acci· dental, but is due to this ennoblement of the individual in the conceptions pr:;tctices or the EngliSh law. The same criminal procedure could not grow from such different soiL
,tPat all of these cases, either ,in the matter. de,0r i;l1 the dicta. of the commit the respective courts them. to the that a statute wbdch in effect forein the testifully of the cOllstitutional provision. But .n'ature Qf these. the fact that all but two of them have .' .· ·.. · p au.,.1" disappro'ved by the. s.up.reme court, must be borne in. . ... ,
UNITED STATES 11. JAMES.
In the one, the national entity-onlyanother name for the rilling power-WOuld brook no obstacle that blocked its way. Influenced by passion, revenge, fanaticism, and the myriad of civil and religious whims, it erected inquisitions and torture stalls, and sought thereby to explore the depths of the human breast, as it had already power to search the closets of human habitations. In the other, the individual lived for himself and family, and, except within certain governmental relations, was in no sense legally interwoven with the rest of mankind. Government was for him; not he for the government. He could lock his door against the messenger of the crown, and his breast against any search that would bring him within the crown's displeasure. In the one, grew up a criminal procedure that was almost purely inquisitorial, and whose history now appalls the enlightened conscience; in the other, grew up a system purely accusatory, where the offending individual could laWfully stand in silence, and demand proof from sources other than himself. In the one, the power of the sovereign pervaded every nook and corner of the individUal; in the other, the power of the sovereign came only to the outward person of the subject, and there stopped. This jealousy against any touch, until the right of indhidual liberty was shown forfeited, proved the corner stone of popular liberty. But English public opinion, upon subjects both civil and religious, was in a constant state of change and ferment. The accepted views of to-day became the heresies and treasons of to-morrow. The view in power is always the right view, and i'S wishing for the means to enforce itself universally. It ,is no wonder, therefore, that sparks of the continental system landed on the English islands, and found spots where the fuel was ready for ignition. Early the ecclesiastical bodies, by the oath of ex officio, attempted, under penalties of excommunication, to extort confessions of heresy and sin from communicants. Later, the star chamber and high commission put for a time in practice the same methods of compulsory self-disclosure of offenses against the state. However, the general English jealousy of personal Banctity resisted, and numerous statutes were passed guarantying the right of silence against the accusation of both the church and the crown. But, in the generation of Englishmen and English colonists in America who lived to see our Constitution adopted, and whose counsels were unquestionably embodied therein, there sprang up in England a formidable revival of prosecutions for the so-called seditious offenses. A paper, a speech, talk among friends, an understanding or confederacy to right some particular wrong, was made the basis of prosecuting the participants, if the sentiments therein prevailing could be distorted into any seeming hatred or contempt of the crown, the peers, the commons, or any of the national functionaries. Some of the men who were tried possibly deserved their punishment, but the illimitable opportunities thereby opened up to outlaw every species of sentiment and progression that did not meet the views of the prevailing government shocked the Anglo-Saxon intelligence. The most stirring state trials of history occurred, in which the government was on the one side
tU1d the 'almost univel'$'al intelligence and conscience on the other. P'.I."hes¢itriIUs, and their possible consequences on the fate of per'$bt18.l,'li'berty, were.not history simply, to the framers of the fifth Those men had lived through these trials, and taken 'on 'their coloring and excitement. They themselves, in their early plannmgs against the trespasses of the English crown, had been exposed to the danger of like prosecution and punishment. In the shadow" of such a menace, progress and personal safety must separate, unless the right· of unbroken silence were among the immutable personal privileges. Nearly all of the ten amendments to the . constitution breathe this apprehension, and erect against it the barriers of organic law. This is forcibly shown by the fact that the amendments were insisted upon by the states most jealous of the central general government, and most apprehensive that such a government might become the oppressor of their personal rights. The pnvilege which the framers of the amendment secured was silence against the accusation of· the federal government,-silence against tbe right of the federal government to seek out data for an accusation. This privilege of silence was, as they believed, and as then looked, in the interest of progress and personal happiness, as against the narrow views of adventitious power. Did they originate such. privilege simply to safeguard themselves against tbe law-inflicted penalties and forfeitures? Did they take no thOught of the pains of practical outlawry? The stated penaltiesa:nd forfeitures of the law might be set aside; but was there no pain in disfavor and odium among neighbors, in excommunication from. church or societies that might be governed by the prevailing views, in the private liabilities that the law might authorite, orin the unfathomable disgrace, not susceptible of formulation in language, which a known violation of law brings upon the offender? Then, too, if the immunity was only against the lawintlictdpains and penalties, the government could probe the secrets <if. every conversation, or society, by extending compulsory to, one of its partiCipants, and thus turn him into an involuntaryrnformer. Did the framers contemplate that this privilege of silence was exchangeable always, at the will of the govern· ment, for a remission of the participant's own penalties, upon a condition of disclosure, that would bring, those to whom he had plighted his faith and loyalty within the grasp of the prosecutor? I cannot think so. Happily, the day when tbds immunity is needed seems to be over. It is difficult for us, who live in a time when there are few, if any, definitions of crime that do not meet with the approval of universal intelligence and conscience, to appreciate these conceptions of our fathers. The battle for personal liberty seems to have been attained, but, in the absence of the din and clash, we cannot comprehend them.eaning of all the safeguards employed. When we see the shield held before the briber, the liquor seller, the usury taker, the duelist, and the other violators of accepted law, we are moved to break or cast it aside, unmindful of the splendid purpose thatftrst threw it forward. But, whatever its disadvan-
IN RE DEERING.
tages now, it is a fixed· privilege, until taken down by the same power that extended it. It is not certain, either, that it may not yet serve some useful purpose. The oppression of crowns and principalities is unquestionably over, but the more frightful oppression of selfish, ruthless, and merciless majorities may yet constitute one of the chapters of future history. In my opinion, the pNvilege of silence, against a criminal accusation, guarantied by the fifth amendment, was meant to extend to all the consequences of disclosure. The effectiveness of the statute of February 11, 1893, might well be questioned on another ground. It is a statute of pardon. Until the witness makes his disclosure he is chargeable with the offense within his personal knowledge. The pardon becomes effective only at the moment and upon condition of disclosure. But pardon is not necessarily unilateral. No person is compelled to accept the legislative or executive grace. Chief Justice Marshall, speaking for the supreme court, so held in Wilson's Case, 7 Pet. 150, where a pardon was granted by the president for a capital offense. In the case at bar, it must be assumed that the witness is guilty of some offense. In the absence of the statute of .February 11, 1893, he has the undoubted constitutional right ofsilence. It is said that that right is taken away by the immunity or pardon extended by the statute. But he chooses not to accept such immunity or pardon. His refusal to answer the question is such refusal of acceptance. He prefers to stand upon his consti· tutional right and take his chances of conviction, rather than ex· pose himself to the civil liabilities and the odium of self-confessed crime. It may be that the offense is of an ancient date, and has been succeeded by years of immaculate conduct and citizenship. Exposure, self-confessed exposure, would lose him his place in society, his good name in the world, and, like a bill of attainder, taint his blood and that of all who inherit it. It might well be that he would refuse to give up the sacred privilege of silence for a pardon. It is not difficult to suppose a case where the inquiry of the government was not- directed to his crime, but to something immeasurably less important and inconsequential. The benefit to society might be a trifle, compared with the catastrophe to him and his d.escendants. I am not impressed with the belief that he has no right to stand upon the constitutional privilege of silence, and thus refuse the grace of the legislative or executive power. For the foregoing reasons the rule will be discharged.
In re DEERING.
(District Court, N. D. California. March 3, 1894.)
Act Congo March 3, 1875, § I, (18 Stat. 479,) provides that all per· sons convicted of an offense -against the United States, "and confined, 1l:l execution of the judgment or sentence upon such conviction, in ilDy