Special Message

To the Senate and House of Representatives:

I submit herewith a letter of the Attorney-General, enclosing a statement of the proceedings by the United States against the individuals and corporations commonly known as the "Beef Packers," and commenting upon the decision of District Judge Humphrey. The result has been a miscarriage of justice. It clearly appears from the letter of the Attorney-General that no criticism whatever attaches to Commissioner Garfield; what he did was in strict accordance with the law and in pursuance of a duty imposed on him by Congress, which could not be avoided; and of course Congress in passing the Martin resolution could not possibly have foreseen the decision of Judge Humphrey.

But this interpretation by Judge Humphrey of the will of the Congress, as expressed in legislation, is such as to make that will absolutely abortive. Unfortunately there is grave doubt whether the Government has the right of appeal from this decision of the District Judge. The case well illustrates the desirability of conferring upon the Government the same right of appeal in criminal cases, on questions of law, which the defendant now has, in all cases where the defendant had not been put in jeopardy by a trial upon the merits of the charge made against him. The laws of many of the States, and the law of the District of Columbia, recently enacted by the Congress, give the Government the right of appeal. A general law of the character indicated should certainly be enacted.

Furthermore it is very desirable to enact a law declaring the true construction of the existing legislation so far as it affects immunity. I can hardly believe that the ruling of Judge Humphrey will be followed by other judges; but if it should be followed, the result would be either completely to nullify very much, and possibly the major part, of the good to be obtained from the interstate commerce law and from the law creating the Bureau of Corporations in the Department of Commerce and Labor; or else frequently to obstruct an appeal to the criminal laws by the Department of Justice. There seems to be no good reason why the Department of Justice, the Department of Commerce and Labor, and the Interstate Commerce Commission, each, should not, for the common good, proceed within its own powers without undue interference with the functions of the other. It is of course necessary, under the Constitution and the laws, that persons who give testimony or produce evidence, as witnesses, should receive immunity from prosecution. It has hitherto been supposed that the immunity conferred by existing laws was only upon persons who, being subpoenaed, had given testimony or produced evidence, as witnesses, relating to any offense with which they were, or might be, charged. But Judge Humphrey's decision is, in effect, that, if either the Commissioner of Corporations does his duty, or the Interstate Commerce Commission does its, by making the investigations which they by law are required to make, though they issue no subpoena and receive no testimony or evidence, within the proper meaning of these words, the very fact of the investigation may, of itself, operate to prevent the prosecution of any offender for any offense which may have been developed in even the most indirect manner during the course of the investigation, or even for any offense which may have been detected by investigations conducted by the Department of Justice entirely independently of the labors of the Interstate Commerce Commission or of the Commissioner of Corporations,--the only condition of immunity being that the offender should have given, or directed to be given, information which related to the subject out of which the offense has grown.

In offenses of this kind it is at the best hard enough to execute justice upon offenders. Our system of criminal jurisprudence has descended to us from a period when the danger was lest the accused should not have his rights adequately preserved, and it is admirably framed to meet this danger. But at present the danger is just the reverse; that is, the danger nowadays is, not that the innocent man will be convicted of crime, but that the guilty man will go scot-free. This is especially the case where the crime is one of greed and cunning perpetrated by a man of wealth in the course of those business operations where the code of conduct is at variance, not merely with the code of humanity and morality, but with the code as established in the law of the land. It is much easier, but much less effective, to proceed against a corporation, than to proceed against the individuals in that corporation who are themselves responsible for the wrongdoing. Very naturally outside persons who have no knowledge of the facts, and no responsibility for the success of the proceedings, are apt to clamor for action against the individuals. The Department of Justice has, most wisely, invariably refused thus to proceed against individuals, unless it was convinced both that they were in fact guilty and that there was at least a reasonable chance of establishing this fact of their guilt. These beef packing cases offered one of the very few instances where there was not only the moral certainty that the accused men were guilty, but what seemed--and now seems--sufficient legal evidence of the fact.

But in obedience to the explicit order of the Congress the Commissioner of Corporations had investigated the Beef Packing business. The counsel for the beef packers explicitly admitted that there was no claim that any promise of immunity had been given by Mr. Garfield, as shown by the following colloquy during the argument of the Attorney-General:

"Mr. Moody. * * * * I dismiss almost with a word the claim that Mr. Garfield promised immunity. Whether there is any evidence of such a promise or not, I do not know, and I do not care.

"Mr. Miller (the counsel for the beef packers). There is no claim of it.

"Mr. Moody. Then I was mistaken, and I will not even say that word."

But Judge Humphrey holds that if the Commissioner of Corporations (and therefore if the Interstate Commerce Commission) in the course of any investigations prescribed by Congress, asks any questions of a person, not called as a witness, or asks any questions of an officer of a corporation, not called as a witness, with regard to the action of the corporation on a subject out of which prosecutions may subsequently arise, then the fact of such questions having been asked operates as a bar to the prosecution of that person or of that officer of the corporation for his own misdeeds.

Such interpretation of the law comes measurably near making the law a farce; and I therefore recommend that the Congress pass a declaratory act stating its real intention.

THEODORE ROOSEVELT