7. WITNESS MUST CLAIM PRIVILEGE.

Government Entitled to Know Attitude of Witness.-Since the government is put to an election as to whether it will take the benefit of a witness's testimony or will preserve its right to a future criminal prosecution, the government's attorney is entitled to know: First, that the witness is unwilling to testify, and Second, that and how the desired evidence would tend to incriminate. These facts are necessary preliminaries to the decision by the government, in the premises.

It follows as a corollary to the foregoing statement that where the witness assumes the position of a mere volunteer, or where he does not fear future prosecutions and has no desire to claim exemption, he may and does waive his privilege by failure to assert it at the proper time and in the manner contemplated by the immunitizing statutes. The words "compelled in any criminal proceeding to be a witness against himself," contained in the Fifth Amendment, plainly imply that some protest or objection on the part of the witness himself, shall precede the insistence by the government that he shall testify; and this construction of the right to raise and enforce the immunity privilege has been generally adopted by the courts and the authorities on the subject.10 The witness alone knows his own wishes regarding the purpose of his testimony, i. e., whether it should tend to exonerate him or to confer the expected immunity. It seems, accordingly, no hardship to exact a decision, in definite form, at the time when his testimony is demanded.

8. ENQUIRINg court or BODY MUST POSSESS JURISDICTIONAL POWERS.

Testimony Must be in Proceedings Relevant and Material to the Purpose for which the Enquiring Body was Created.This very natural inference from the provisions of the statutes on which the right to examine the witness are based, was drawn

9 For Fifth Amendment-see Appendix F, pages 286-7.

For immunity provisions generally, see Appendix H, pages 289, 290. 10 U. S. v. Heike, 227 U. S. 131, holding that the Immunity Statute should be construed "coterminous" with the privilege; 175 Fed. 852. See also, State v. Murphy, 128 Wis. 201; Wigmore on Evidence, Vol. 5, Section 2281a.

Effect of immunity statutes has been considered in: U. S. v. Armour & Co., 142 Fed. 808; Hale v. Henkel, 201 U. S. 43; State v. Rudolph, 128 Wis. 222.

in the decision in Interstate Commerce Commission v. Harriman," where the witness was sustained in refusing to testify. It was held that there is a limit to the power of a board or commission to compel testimony, and that where the object of the examination or proceeding is not cognate to the jurisdiction of that body, its subpoena is without compelling force, and the witness may refuse to testify. In the Harriman case the Commission undertook to supplement a Senate investigation by an enquiry into the methods by which certain railroad securities had been acquired and were held, and such an enquiry was deemed by the Supreme Court outside of the quasi-judicial functions with which the Commission was endowed.

Had Harriman appeared and testified without objection, there can be no doubt he would have been a mere volunteer, and immunity would not have attached,12 for acquiescence in the assumed right to compel testimony could not have rendered him im

mune.

In any matter properly within the jurisdiction of a quasijudicial body, however, Congress may invest it with authority to require the attendance and testimony of witnesses, and the production of books, papers, etc.; and in such a matter the ordinary rules as to immunity of course apply.13

13

9. FURTHER CONSIDERATION OF IMMUNITY PROVISIONS.

Immunity Provision in Act of February 25, 1903.-The immunity provision of Section 9, paragraph 7, of the Federal Trade Commission Act in general wording and effect is identical with the immunity provision contained in the Federal Appropriation Act of February 25, 1903,13 which law is still in effect generally, i. e., in matters not connected with the Anti-trust laws.

Immunity by Pardon.-Another form of immunity is by pardon. This method puts the offender in the same position as if he had never done the illegal act; but it cannot close the judicial eye to the fact that he was capable of performing the acts which constituted the violation of law.14 14

11 211 U. S. 407.

12 See generally, In re Pacific Railways Commission, 32 Fed. 241; Kilbourn v. Thompson, 103 U. S. 168; In re Chapman, 166 U. S. 661.

13 Interstate Commerce Commission v. Brimson, 154 U. S. 447; 14 Sup. Ct. 1125; 15 Sup. Ct. 19; 38 L. Ed. 1047; reversing 53 Fed. 476. 13a For text of this provision, see Appendix H, pages 289, 290.

14 United States v. Swift, 186 U. S. 1002; United States v. Armour & Co., 142 U. S. 808; Thornton's Sherman's Anti-Trust Law, § 471.

10. APPLICATION OF PRINCIPLE.

Congress Exercises Jurisdiction over All Incorporated Bodies. In vindication of its own powers, Congress possesses and asserts as to State-chartered corporations the same authority it would have if the several corporations owed their existence to the Federal laws. Neither the corporation nor an officer thereof can successfully set up an examination in litigations concerning that body as a source of immunity. Especially is this true where the act complained of was committed by the witness in an official capacity, and is not itself the subject-matter under investigation by the examination proceedings. Neither do official compilations of the corporation's records, accounts, etc., when delivered in the form of a report, amount to the giving of testimony or the production of documentary evidence specified in the Immunity Act of February 25, 1903.15

The foregoing statutes and decisions (which are for the most part Anti-trust cases) were all enacted or decided in accordance with and to make effectual the Fifht Amendment, which prohibits legal procedure that will "subject [any person] for the same offence to be twice in jeopardy of life and limb," i. e., in a criminal action.

The Fourth Amendment Considered.-The Fourth Amendment is also in point here, and there are important decisions that concern us. That amendment is in the following words:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

We have seen that Congress does not concern itself with the source of the legal fiction of corporate existence, but invests this often very un-"natural person" with the same measure of responsibilities and rights whether it is chartered by a State, or owes its franchise to creative power inherent in a Territory or in the general government. As will presently appear, this policy and prin

15 Hale v. Henkel, supra; Heike v. United States, 227 U. S. 131, 33 Sup. Ct. 226, 57 L. Ed. 450; affirming 192 Fed. 83, 112 C. C. A. 615; and see also Thornton on Sherman Anti-trust Act, §§ 472-3.

ciple of Federal law and practice likewise confers upon Stateorganized corporations the protection of the United States Constitution. Thus, the limitation to the extent of seizure and search has been held to confine the use of the subpæna duces tecum to a reasonable disclosure and surrender of the corporate books, records and documents. A direction to produce all its corporate books, letters, contracts, and agreements amounts in legal effect to a search warrant unsupported by oath, is unreasonable, and need not be obeyed.16

Where the case is against a pooling combination in control of a bridge leading to a central city, and a subpœna duces tecum is issued upon a sworn application demanding in behalf of an Antitrust prosecution by the government, the production of specified records and documents of the component corporations concerned in the pool, the court said:

* *

"The subject of transportation of recent years to a great extent * has become res publica. I think the books and papers of these traffic associations called for in this subpoena ought to be produced and that the private interests and convenience of those associations, if any, ought in a matter of this kind to give way to the exigencies growing out of this suit."17 Immunity Conferred in Aid of Prosecution.-We have seen (p. 156) that the right to confer immunity is given by law in aid of prosecutions, and does not extend to the calling of persons as witnesses in aid of the defense; and it has also been held in the same series of litigations that the filing of a sworn answer does not create any exemption from prosecution, in favor of the answering defendants. The court intimates plainly that in such a position the defendant could lawfully refrain from filing a sworn answer, even where the bill of complaint did not waive an answer under oath. But when filed, the situation does not call for such a forced construction. "The true criterion must be the fair and reasonable meaning-the sense in which it is probable that Congress used the chosen words." The court holds that the

16 Hale v. Henkel, supra.

17 United States v. Terminal R. Association of St. Louis, 148 Fed. 487. While this subpœna duces tecum was afterward quashed (154 Fed. 269), the decision to that effect turned upon the insufficiency of the originating petition, and not upon the correctness of the reasoning quoted above.

equity practice by which the answer became evidence when filed in response to a bill of discovery, is no longer in effect; and that the answer has performed its full function and purpose when it has enabled the defendant to appear and submit himself to the jurisdiction of a duly constituted tribunal.

"Defendants under such a bill [in equity] as was filed here are not, with my construction of this immunity statute [Act of February 25, 1903, (32 St. L. 904) as amended June 30, 1906 (34 St. L. 798)] in danger of losing any constitutional rights [prohibitory of criminal prosecution]. They may absolutely refuse to incriminate themselves by any statement, by whatever name it may be called, and with or without oath. It may not be pleasant to take this position, but such is the constitutional method of preserving a constitutional right.”18

From the sense of these authorities, it may be clearly deduced that witnesses-especially co-defendants-not called by the government, or who do not furnish information at its request by compulsion, after claiming their privilege in a matter or proceeding within the legally established jurisdiction of the enquiring body and not merely within the scope of a casual investigation, are not rendered immune in any criminal prosecutions that may ensue from the facts educed upon such examination.

Immunity does not Extend to Future Acts.-It is also a natural and logical conclusion that immunity secured through disclosures of facts constituting a monopoly in existence then and prior thereto, will not afford protection for future conduct of a similar description. If this were not so, the immunity anti-toxine would so permeate the fibre of the offender that he might and probably would continue on his way rejoicing and commit a series of new offences extending through the remaining years of his natural life. This very reasonable and, in fact, obvious holding appears in United States v. Swift, cited at page 158, supra.

Resistance by Witness not Required. It is not requisite that the compulsion employed should be in fact irresistible, to afford immunity. In an Anti-trust case, the court held:

"The contention has been made that in order to get immunity the citizen shall wait until the compulsion becomes

18 United States v. Standard Sanitary Mfg. Co., 187 Fed. 229.