U.S. Supreme Court
Counselman v. Hitchcock, 142 U.S. 547 (1892)
Counselman v. Hitchcock
Argued December 9, 10, 1891
Decided January 11, 1892
142 U.S. 547
Under the 5th Amendment to the Constitution of the United States, which declares that "no person . . . shall be compelled in any criminal case to be a witness against himself," where a person is under examination before a grand jury, in an investigation into certain alleged violations of the interstate commerce act of February 4, 1887, 24 Stat. 379, and the amendatory act of March 2, 1889, 25 Stat. 855, he is not obliged to answer questions where he states that his answers might tend to criminate him, although § 860 of the Revised Statutes provides that no evidence given by him shall be in any manner used against him in any court of the United States in any criminal proceeding.
The case before the grand jury was a criminal case.
The meaning of the constitutional provision is not merely that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself, but its object is to insure that a person shall not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime.
The ruling in People v. Kelly, 24 N.Y. 74, that the words "criminal case" mean only a criminal prosecution against the witness himself, disapproved.
The protection afforded by § 860 is not coextensive with the constitutional provision.
Adjudged cases on this subject, in courts of the United States and of the States, reviewed.
As the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed on constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have, as far as possible, the same interpretation.
It is a reasonable construction of the constitutional provision that the witness is protected from being compelled to disclose the circumstances of his offence, or the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. chanroblesvirtualawlibrary
No statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him can have the effect of supplanting the privilege conferred by the Constitution. In view of the constitutional provision, a statutory enactment, to be valid, must accord absolute immunity against future prosecution for the offence to which the question relates. The witness, having been committed to custody for his refusal to answer, is entitled to be discharged on habeas corpus.
On the 21st of November, 1890, while the grand jury in attendance upon the district court of the United States for the northern district of Illinois was engaged in investigating and inquiring into certain alleged violations, in that district, of an act of congress entitled "An act to regulate commerce," approved February 4, 1887, c. 104, 24 Stat. 379, and the amendments thereto, approved March 2, 1889, c. 382, 25 Stat. 855, by the officers and agents of the Chicago, Rock Island & Pacific Railway Company, and by the officers and agents of the Chicago, St. Paul & Kansas City Railway Company, and by the officers and agents of the Chicago, Burlington & Quincy Railroad Company, and the officers and agents of various other railroad companies having lines of road in that district, one Charles Counselman appeared before the grand jury in response to a subpoena served upon him and, after having been duly sworn, testified as follows:
"Q. Your name is Charles Counselman?"
"A. Yes, sir."
"Q. You are the sole member of Charles Counselman & Co.?"
"A. Yes, sir."
"Q. Engaged in the grain and commission business in the city of Chicago?"
"A. Yes, sir."
"Q. Have you been a receiver of grain from the west during the past two years?"
"A. Yes, sir."
"Q. Over what roads did you ship grain received by you during the present summer of 1890?"
"A. The Rock Island & Burlington, principally."
"Q. From what states was most of the grain shipped? "
"A. From Kansas and Nebraska, I think."
"Q. What did your receipts in bushels amount to of corn in the months of May, June, and July, 1890?"
"A. I have no idea; I could not tell you."
"Q. Five hundred thousand bushels a month?"
"A. I cannot tell you."
"Q. How many men have you employed during the last year? What is the usual number of men employed in connection with your business?"
"A. I have, I think six or seven men in my office."
"Q. Have you during the past year, Mr. Counselman, obtained a rate for the transportation of your grain on any of the railroads coming to Chicago, from points outside of this state, less than the tariff or open rate?"
"A. That I decline to answer, Mr. Milchrist, on the ground that it might tend to criminate me."
"Q. During the past year, have you received rates upon the Chicago, Rock Island & Pacific from points outside of the state to the city of Chicago, at less than the tariff rates?"
"A. That I decline to answer on the same ground."
"Q. I will ask you the same question with reference to the Burlington."
"A. I answer in the same way."
"Q. The same with reference to Atchison."
"A. I can't recollect that we have done any business with that road."
"Q. I will ask you whether you have, during the last year, received a rate less than the tariff rate on what is called the 'Diagonal' or Stickney road."
"A. Not to my knowledge."
"Q. Who attends to the freight department of your business?"
"A. Myself and Mr. Martin."
"Q. Have you or the firm of Charles Counselman & Co. received any rebate, draw back, or commission from the Chicago, Rock Island & Pacific Railroad Company, or the Chicago, Burlington & Quincy Railroad Company, on the transportation of grain from points in the states of Nebraska
and Kansas, to the city of Chicago, in the state of Illinois, during the past year, whereby you secured the transportation of said grain at less than the tariff rates established by said railroad?"
"A. I decline to answer on the same ground."
The grand jurors thereupon filed in said court, on the 22d of November, 1890, their report, signed by their foreman and clerk certifying to the court the several questions which Counselman so refused to answer. Thereupon the judge of the court granted a rule of Counselman to show cause why he sho