additional meaning has, perhaps, been given to the specific prohibition of the second section by changes in the penalties provided by the law. Originally the statute provided no penalties except those directed against railway officers, employees or agents and no distinction was made between different forms of violations. Any willful violation was, from April 5, 1887, to March 1, 1889, inclusive, a misdemeanor punishable by a fine of not to exceed five thousand dollars. In its second annual report the Interstate Commerce Commission urged upon Congress the desirability of making the penalties of the Act applicable to shippers guilty of participation in its violation, and at the same time suggestions were made, in which the Commission was understood to concur, that imprisonment constitutes the only penalty sufficiently dreaded to check adequately certain classes of offenses against the statute. These views apparently impressed themselves upon Congress, for an amendment to the tenth section of the law, which took effect on March 2, 1889, brought shippers within the scope of its penalties; and "imprisonment in the penitentiary for a term of not exceeding two years” was, in the case of violations which amount to "an unlawful discrimination in rates, fares or charges," made a punishment available in the discretion of the court as an alternative or supplement to the fine theretofore provided for. The same amendment declared that either or both penalties might be incurred by any one who:— by means of false billing, false classification, false weighing, or false report of weight, or by any other device or means, shall knowingly and willfully assist, or shall willingly suffer or permit, any person or persons to obtain transportation for property at less than the regular rates then established and in force.

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Furthermore, the provisions containing this declaration were made to include shippers and their agents as well as the officers and agents of the carrying company. Singularly enough a most natural consequence of the expansion of the penal provisions of the statute so as to include both parties to rebate payments does not appear to have been at all anticipated. Rebate contracts are not usually negotiated before large audiences nor are rebate payments commonly made upon street corners. An essential

element in these practices, quite aside from their legality, is the secrecy with which they are conducted. Now it is obvious that, under a law the penalties of which include the recipient of a rebate and his agents as well as the officers and agents of the carrier, knowledge of the acts constituting the misdemeanor may often be confined to those liable to prosecution and punishment therefor. Under such circumstances it might easily happen that in an important case every available witness would be in a position to plead the protection of Article V of the Amendments to the Constitution of the United States that "no person shall be compelled in any criminal case to be a witness against himself," and to decline to testify. If this possibility was not foreseen its existence was speedily brought to the attention of those charged with the duty of enforcing the statute.

The amendment extending to shippers the penalties for rebating received Presidential approval on March 2, 1889, and on November 21, 1890, one Charles Counselman, an extensive shipper of grain, being before the Federal grand jury for the Northern District of Illinois, which was then engaged in an inquiry concerning alleged violations of the Interstate Commerce law, the following question and answer, among others, were recorded:

"Question. "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?'

"Answer. "That I decline to answer, Mr. Milchrist, on the ground that it might tend to criminate me.'"-3 Inter. Com. Rep., 327.

This refusal to testify being promptly reported to the district judge, an order requiring the witness to answer the question quoted and others of similar import was entered. The witness, however, persisted in his refusal, and in consequence of this refusal was ordered to pay a fine of $500 and to remain in the custody of the United States marshal until he should answer the questions and all questions of similar character. Judge Gresham, then sitting as circuit judge, refused. on this state of

facts, to grant a writ of habeas corpus,1 holding that Section 860 of the Revised Statutes affords immunity equal to that of the Fifth Amendment. This section of the Revised Statutes is as follows:

"No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States in any criminal proceedings or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid."

The dismissal of the writ of habeas corpus by Judge Gresham was appealed from and on January 11, 1892, the Supreme Court of the United States reversed the decision of the Circuit Court and remanded the case to that court with a direction to discharge the appellant from custody. The principle of law applied in the opinion of the Supreme Court is indicated by the following quotations:

"It remains to consider whether Section 860 of the Revised Statutes removes the protection of the Constitutional privilege of Counselman. That section. protected him against the use of his testimony against him or his property in any prosecution against him or his property, in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer he could not possibly have been convicted. .the protection of Section 860 is not coextensive with the constitutional provision. Legislation cannot detract from the privilege afforded by the Constitution."-Counselman v. Hitchcock, 142 U. S., 547.

Following the foregoing, the opinion of the Supreme Court proceeded to discuss at some length the effect of the statutes of 13 Inter. Com. Rep., 327. 44 Fed. Rep., 268.

certain States, the legislatures of which had attempted to secure testimony from persons who might otherwise plead the protection of constitutional exemptions similar to that of the Fifth Amendment to the Federal constitution, by forbidding future criminal prosecutions against such witnesses. After citing a number of adjudicated cases the court said:

"We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him, can have the effect of supplementing the privilege conferred by the Constitution of the United States. In view of the constitutional provision a statutory enactment to be valid, must afford absolute immunity for the offense to which the question relates."-Counselman v. Hitchcock, 142 U. S., 547.

This decision and its consequence were first explained to Congress in the Annual Report which the Interstate Commerce Commission submitted on December 1, 1892, and the prompt action of the national legislature illustrates its customary readiness to adopt the reasonable recommendations of the Commission. The change in the statutory protection afforded this class of witnesses, plainly suggested by the Supreme Court and urged by the Commission, was enacted and received Presidential sanction just two months and ten days after the date of the Commission's report. The following provision of law was approved on February 11, 1893

"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, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the Act of Congress, entitled “An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture.

But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence docu

mentary or otherwise, before said Commission, or in obedience to its subpoena or the subpoena of either of them, or in any such case or proceeding."

Almost precisely a year after the enactment of the foregoing, on February 16, 1894, to be exact, the Federal grand jurors for the Northern District of Illinois, being engaged in an inquiry concerning alleged violations of the Interstate Commerce law, two witnesses declined to respond to certain inquiries upon the ground that their answers would tend to criminate them. The validity of the law of February 11, 1893, was thus brought before Judge Grosscup, who was then sitting as district judge, and on February 26, 1894, he declined to punish them for their refusals to testify. Although the Supreme Court subsequently took an opposite view of the questions involved, the opinion of this great publicist and justly distinguished jurist merits quotation on account of its characteristic breadth of view :

"The case at bar, like those cited, inspires no wish in the court to protect the witnesses. The Interstate Commerce act is a law of the land, and the witnesses ask for the protection of the Amendment under circumstances which indicate that, having violated it before, they have no intention to cease violating it now. It is the contest of the people who disbelieve in the expediency of the law against the attempt to enforce it. The protection is asked, not so much to keep inviolate the secrets of the human breast, as to have immunity in further violating a law of the land. Judged by this specific instance, the Fifth Amendment, if construed broadly enough to afford the witnesses immunity against testifying, is an obstruction in the path of the administration of law. But the Fifth Amendment must not be judged by a single specific instance. It was placed in the organic law of the land for a purpose and that purpose, when ascertained, must be enforced, howsoever it may effect sporadic cases, or even the great body of cases, that may come before the court.

The privilege which the framers of the Amendment secured was silence against the accusation of the Federal government,silence against the right of the Federal government to seek out data for an accusation. This privilege of silence was, as they believe, and as events then looked, in the interest of progress and personal happiness, as against the narrow views of adventitious power. Did they originate such a privilege simply to safeguard themselves against the law-inflicted penalties and for