§ 44. Brown v. Walker 10-Immunity for witnesses under act of 1893 applies to state as well as federal courts. In this case, after declaring that the English rule of evidence-Nemo tenetur seipsum accusare"became clothed in this country with the impregnability of a constitutional enactment," the Court held that the constitutional guarantee of protection to every person against being compelled in any criminal case to be a witness against himself is not infringed by the Act of Congress of Feb. 11, 1893, exempting a witness from prosecution on account of any transaction to which he may testify before the Interstsate Commerce Commission; that such exemption extends not only to Federal courts, but to state courts as well; that the power of Congress to pass such acts of general amnesty as that of Feb. 11, 1893, is not taken away by the constitutional power of the President to grant pardons. The Court said: "This case involved an alleged incompatibility between the clause of the Fifth Amendment to the Constitution which declares that no person 'shall be compelled in any criminal case to be a witness against himself,' and the act of Congress of February 11, 1893 (27 Stat. at L. 443), which enacts that 'no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission. The act is supposed to have been passed in view of the opinion of this court in Counselman v. Hitchcock, 142 U. S. 547, 3 Inters. Com. Rep. 816, to the effect that U. S. Rev. Stat. 860, providing that no evidence given by a witness shall be used against him, his property or estate, in any manner, in any court of the United States, in any criminal proceeding did not afford that complete protection to the witness which the Amendment was intended to guarantee. The act of Congress in question, securing to witnesses immunity from prosecution, is virtually an act of general amnesty, and belongs to 10-161 U. S. 591. a class of legislation which is not uncommon either in England (2 Taylor, Ev. 1455), where a large number of similar acts are collated, or in this country. Although the Constitution vests in the President 'power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,' this power has never been held to take away from Congress the power to pass acts of general amnesty, and is ordinarily exercised only in cases of individuals after conviction, as was said by this court in Ex parte Garland, 4 Wall. 333, 380, 'it extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings, or during their pendency or after conviction and judgment.' If, as was justly observed in the opinion of the court below, witnesses standing in Brown's position were at liberty to set up an immunity from testifying, the enforcement of the interstate commerce law or other analogous acts wherein it is for the interest of both parties to conceal misdoings, would become impossible, since it is only from the mouths of those having knowledge of the inhibited contracts that the facts can be ascertained. While the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity." § 45. Case of Wong Wing, sequel of the case of Fong Yue Ting. In the case of Wong Wing, 163 U. S. 228, it was held that the provisions of the Fifth and Sixth Amendments, relating to criminal procedure, protect all aliens in the territory of the United States; and that a pretended judgment rendered by a Commissioner of a Circuit Court commanding "that they be imprisoned at hard labor at and in the Detroit House of Correction for a period of sixty days from and including the day of commitment, and that at the expiration of said time they be removed from the United States to China," without presentment or indictment, and without trial by jury, is Due Process-7 a denial of due process of law. The court said: "It is, indeed, obvious, from some expressions used by the court in a previous opinion under the exclusion acts, that it was perceived that the question now presented might arise; but care was taken to reserve any expression of opinion upon it. Our views upon the question thus specifically pressed upon our attention may be briefly expressed thus: We regard it as settled by our previous decisions that the United States can, as a matter of public policy, by Congressional enactment forbids aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing their deportation, upon executive or subordinate officials. But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused. No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land and unlawfully remain here. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should be first established by a judicial trial. Applying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment, or indictment of grand jury, nor be deprived of life, liberty, or property without due process of law." 11 § 46. Talton v. Mayes 11-Fifth Amendment has no application to courts of Cherokee Nation. In that case it was held that as the Cherokee Nation enjoyed local self-government before the Constitution of the United States was adopted, the crime of murder committed by a Cherokee Indian upon the person of another, within the jurisdiction of that Nation, is an offense against its local laws and not against the United States; that for that reason, the provision of the Fifth Amendment as to a presentment or indictment by a grand jury has no application to criminal procedure in the courts of the Cherokee Nation, where the number composing a grand jury is regulated entirely by the local law. The court said: "The question therefore is, Does the Fifth Amendment of the Constitution apply to the local legislation of the Cherokee Nation so as to require all prosecutions for offenses committed against the laws of that nation to be initiated by a grand jury organized in accordance with the provisions of that amendment? The solution of this question involves an inquiry as to the nature and origin of the power of local government exercised by the Cherokee Nation and recognized to exist in it by the treaties and statutes above referred to. Since the case of Barron v. Baltimore, 7 Pet. 243, it has been settled that the Fifth Amendment to the Constitution of the United States is a limitation only upon the power of the general government, that is, that the amendment operates solely on the Constitution itself by qualifying the powers of the national government which the Constitution called into being. The case in this regard therefore depends upon whether the powers of local government exercised by the Cherokee Nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to the Con 11-163 U. S. 376. |