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THE GREEN BAG

might have intended to accomplish the same results accomplished by the Westinghouse patent, yet tinder the circumstances he would be entitled to be regarded as an independent inventor. The embodiment in the interstate com merce and anti-trust laws of provisions re quiring officers of corporations to answer questions notwithstanding they may in criminate themselves, and granting them immunity from prosecution in regard to the matters testified to, has been the basis of a number of proceedings which have found their way to the Supreme Court, and to Justice Brown has been assigned the task, on more than one occasion, of writing the opinions. One of the earlier cases was Counselman v. Hitchcock, 142 U. S. 547, in which Justice Blatchford wrote the opinion, and in which a witness was relieved from answering questions before a grand jury in vestigating violations of the interstate com merce act because § 860 Revised Statutes, under which immunity was promised, was not sufficiently broad. After Congress had met the situation by the passage of the act of February n, 1893, a similar case came before the Supreme Court and the immu nity was held sufficient — Brown v. Walker, 161 U. S. 591, which was argued by Mr. James C. Carter for a witness who, after having declined to answer and been com mitted for contempt, had sued out a writ of habeas corpus. The court below dis missed the petition; Senator Edmunds rep resented the Interstate Commerce Commis sion. The case was argued January 23, 1896, and was decided March 23, 1896. Mr. Justice Brown delivered the opinion of the court, the chief justice and Justices Field, Harlan, Brewer, and Peckham form ing the majority while Justices Shiras, Gray, and White dissented. The opinion analyses the Fifth Amendment saying that, "if it be construed literally, as authorizing the witness to refuse to disclose any fact which might tend to incriminate, disgrace, or expose him to unfavorable comments,

then he must necessarily to a large extent determine upon his own conscience and re sponsibility whether his answer to the pro posed question will have that tendency,. . . and the practical result would be that no one could be compelled to testify to a mate rial fact in a criminal case, unless he chose to do so, or unless it was entirely clear that the privilege was not set up in good faith. If, on the other hand, the object of the provision be to secure the witness against a criminal prosecution, which might be aided directly or indirectly by his dis closures, then, if no such prosecution be possible — in other words, if his testimony operate as a complete pardon for the offense to which it relates — a statute absolutely securing to him such immunity from prose cution would satisfy the demands of the clause in question." The latter construction was the one adopted by the court and the statute was held sufficient. In commenting on Coun selman v. Hitchcock, Justice Brown said: "The danger of extending the principle an nounced in that case is that the privilege may be put forward for a sentimental rea son, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing im munity to some third person who is inter ested in concealing the facts to which he would testify. Every good citizen is bound to aid in the enforcement of the law, and has no right to permit himself under the pre text of shielding his own good name to be made the tool of others who are desirous of seeking shelter behind his privilege." These very conditions recently arose in the prosecutions by the Government of suits against the tobacco and paper trusts, and a few weeks ago, just ten years after deliv ering that opinion, he delivered the opinion in Hale v. Henkel, 201 U. S. 43, holding that the officers of corporations whose actions were under investigation by the Federal grand jury or which were sued by the United States could not, in view of the various im munity statutes which have been passed in connection with the interstate and trust legislation, assert their privileges under the Fifth Amendment for the purpose of shield