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effectively nullified in 1892 by this Court's decision in Counselman v. Hitchcock, 142 U. S. 547, holding that R. S. § 860, a statute identical in all material respects with R. S. § 859, was not a sufficient substitute for the constitutional privilege of refusing to answer self-incriminating questions. Under that decision, a witness who is offered only the partial protection of a statute such as §§ 859 and 860-that his testimony may not be used against him in subsequent criminal proceedings-rather than complete immunity from prosecution for any act concerning which he testifies 13 may claim his privilege and remain silent with impunity.

Section 860 was ultimately repealed. Its usefulness undermined by the Counselman decision, it remained on the statute books until 1910, "a shield to the criminal and an obstruction to justice." But the attention of Con

14

tect them from prosecution for crimes revealed by their testimony. Section 1 of the Act became R. S. § 102, 2 U. S. C. § 192. As first enacted, §2 not only prevented the use of a witness' testimony in subsequent criminal proceedings but gave him complete immunity from prosecution "for any fact or act touching which he shall be required to testify." This latter provision was deleted in 1862, 12 Stat. 333, leaving only the partial protection of § 859, which was in effect declared insufficient to require a witness to give self-incriminatory testimony in Counselman v. Hitchcock, 142 U. S. 547 (1892).

12 R. S. § 860 applied to evidence obtained from a party or witness in any "judicial proceeding" and provided that such evidence should not be used against such person in any criminal proceeding. 13 See Brown v. Walker, 161 U. S. 591 (1896).

14 H. R. Rep. No. 266, 61st Cong., 2d Sess., which was concurred in by the Senate Committee reporting the repealer, states:

"This section [860] was enacted apparently for the purpose of enabling the Government to compel the disclosure of incriminating testimony on condition that the witness disclosing the same would be given immunity. In the case of Counselman v. Hitchcock (142 U. S., 547) it was held that legislation can not abridge a constitutional privilege, and that it can not replace or supply one, at least unless

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gress has not, apparently, been called to the anomaly presented by the continued existence of R. S. § 859, which, like § 860, was a constituent part of an immunity "bargain" declared invalid in the Counselman case.15 The courts must, therefore, give effect to the statute. Cameron v. United States, 231 U. S. 710, 720 (1914).

Since respondent did not refuse to answer the questions put to her by members of the House Committee, her argument is not of denial of any constitutional right but solely that R. S. § 859 bars use of her testimony in her trial for wilful default.16 The history of that statute, its original

it is so broad as to have the same extent in scope and effect, and that said section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition, and that in view of the constitutional provision (article 5 of the amendments) a statutory enactment to be valid must afford absolute immunity against future prosecution for the offense to which the question relates.

"Since the decision above referred to section 860 has possessed no usefulness whatever, but has remained in the law as an impediment to the course of justice. Under it a witness can not be compelled to give any incriminating testimony whatever, but if he chooses to go on the witness stand and testify as to any matter whatever, even of his own volition, and, whether incriminatory or not, his testimony can not thereafter be brought up against him in any criminal proceedings. He can not be confronted with his own testimony or his own previous statement under oath even on cross-examination. The statute has become a shield to the criminal and an obstruction to justice."

15 In 1938 Congress made minor amendments to the statutes in question without recognizing their inconsistency with the Counselman case. 52 Stat. 943. See S. Rep. No. 2108, 75th Cong., 3d Sess.

16 United States v. Monia, 317 U. S. 424 (1943), is, of course, inapplicable. That decision relates to the necessity of making a claim of immunity under the particular statute there involved. The opinion specifically states that the constitutional privilege, as distinguished from the statutory immunity under consideration in that case, must be claimed. Id. at 427.

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purpose, and its present status are all relevant considerations in its interpretation. Despite the fact that the literal language would encompass testimony elicited by the House Committee in its questioning of respondent relative to the production of the records of the association, the Court will not reach that result if it is contrary to the congressional intent and leads to absurd conclusions. United States v. Kirby, 7 Wall. 482, 486 (1869); Glickstein v. United States, 222 U. S. 139 (1911). And we are clearly of the opinion that the congressional purpose would be frustrated if the words, "in any criminal proceeding," were read to include a prosecution for wilful default under R. S. § 102.

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That purpose was "more effectually to enforce the Attendance of Witnesses . . . and to compel them to discover Testimony." It had been the experience of Congress prior to 1857 that witnesses could not be compelled to disclose desired information, in part because of insufficient penalties for nondisclosure, and in part because of the constitutional privilege against self-incrimination. In an attempt to surmount the latter obstacle, Congress enacted what became R. S. § 859. By granting an immunity, it was the congressional intent to compel testimony which had hitherto been unavailable.

It is now contended that the protection of the statute, which was extended to witnesses in an effort to obtain testimony, protects equally the person who wilfully withholds testimony and is prosecuted for his wilful default. This contention completely ignores the purpose of the immunity. In the first place, it imputes to Congress the contradictory and irrational purpose of granting an immunity from prosecution for contempt in order to obtain evidence of that contempt. And in the second place,

17 See 11 Stat. 155.

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it assumes that Congress had some purpose to compel testimony of the kind here involved-statements of refusal by the witness to answer questions or produce documents-in return for which it was willing to grant an immunity. Such an assumption cannot be made. These statements have always been available to the Houses of Congress in contempt proceedings. They are uniformly printed in the reports of committees recommending contempt action 18 and are relied upon by the Houses when deliberating in contempt cases.19 In short, the purpose of the statute contradicts its application to testimony of this kind.

Furthermore, to hold such testimony inadmissible in a prosecution for wilful default is to conclude that Con

18 See, e. g., S. Rep. No. 254, 73d Cong., 2d Sess., the Report of a Special Committee on Investigation of Air Mail and Ocean Mail Contracts, setting out in great detail the testimony of William P. MacCracken, Jr., et al., "in order that the Senate may determine whether or not any action shall be taken by the Senate with a view to proceeding against the said William P. MacCracken, Jr. . . . in the nature of a proceeding for contempt or otherwise See Jurney v. MacCracken, 294 U. S. 125 (1935).

...

19 The incident giving rise to enactment of the statute illustrates the point. A correspondent of the New York Times, having made charges of corruption on the part of members of the House of Representatives in connection with pending legislation, was called before a select committee of the House and asked to name the Representatives involved. He declined to do so for the reason that the information had been given to him in confidence. The committee's questions and the witness' answers are set out at length in the Congressional Globe, 34th Cong., 3d Sess., pp. 403-404, as a part of the committee's report and resulted in his being called to the bar of the House "to answer as for a contempt of the authority of this House," and in his subsequent commitment. These proceedings were carried on in conjunction with consideration of the statute in the House. The contention now made would impute to Congress an intent to deprive the courts of the very information upon which the House had acted in the case giving rise to the statute.

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gress, for no discernable reason, made proof of contempt vastly more difficult before the courts than in its own chambers, since, as we have indicated, the Houses of Congress themselves are accustomed to rely upon such testimony. There is not a hint of any such purpose in the legislative history of the statute or the decisions construing it. On the contrary, this Court has often noted that prosecution under R. S. § 102 was intended "merely to supplement the power of contempt by providing for additional punishment." Jurney v. MacCracken, supra, at 151.

The debates attending enactment of the statutes here in question and the decisions of this and other federal courts construing substantially identical statutes make plain the fact that Congress intended the immunity therein provided to apply only to past criminal acts concerning which the witness should be called to testify."

20 Representative Orr: "The bill provides that no persons called before that committee to testify before them shall be subjected to criminal prosecution for any offense they may have committed, and for which their testimony would furnish the basis of an indictment.” Cong. Globe, 34th Cong., 3d Sess. 406. Representative Washburn: "The second section of the bill declares that no person summoned as a witness shall be excused from answering a question for the reason that his answer would criminate himself; and provides that he shall be exempt from punishment for any offense which he may testify that he has committed, and that on trial for such offense in any court in the country such evidence shall not be used against him." Id. at 428. Senator Seward: "The second section of the bill provides that such person shall have the benefit of being exempt from prosecution as to the matter concerning which he is called to testify." Id. at 444. (Emphasis supplied throughout.) It may be pointed out that since the statute, as originally enacted, had the effect of granting total immunity from prosecution for any fact or act touching which the witness testified, adoption of respondent's contention would mean that Congress originally intended to immunize the witness who states before the committee that he will not answer questions or produce papers from any prosecution for his default.