rights which the State has no power to interfere with or destroy, unless it substitutes something of equal importance and value in their place and stead.

These basic rights are for the most part contained in the Constitution and the Amendments.2

Established by Constitution itself.-Without doubt those rights are so well established under Amendments IV, V, and XIV, of the Federal Constitution that a witness would be protected against incriminating himself, even though no reference thereto appeared in any part of the Federal Trade Commission Law, or the Clayton Law. The Sherman Law, and Sections 73 to 77, inclusive, which contain the Anti-trust provisions of the Wilson Tariff Law, are silent on that point, although immunity is conferred by the Act of February 25, 1903 (32 Stat. 854, 903), making appropriations for general expenses of government. Section 860 of the Federal Revised Statutes and the Acts of February 11, 1893, and February 19, 1903, were also legislative provisions conferring immunity, but not to the extent of the statute of February 25, 1903, which covers examinations of witnesses before a grand jury, in addition to trials in court. The immunity laws, however, do not protect a witness before the Federal courts from subsequent prosecution in the State courts for the offence disclosed; and this construction has been held to be in accordance with the constitutional guarantee.3

Immunity Relates to Criminal Procedure only.-Immunity under the guarantees in the Constitution and in the Federal Immunity Statutes, relate exclusively to criminal proceedings, unless it is otherwise expressly stated in the legislative acts.

These general remarks are preliminary to consideration of the subject in respect to the Federal Trade Commission Act and the interpretation which will probably be extended thereto in proceedings instituted under those laws. For convenience of reference the Constitutional Amendments will be inserted in their proper place.

2 For provisions of Constitution applicable to Anti-trust matters, see Appendix F, pages 286-7.

3 See Hale v. Henkel, 201 U. S. 43; Nelson v. U. S., 201 U. S. 92, and other cases cited under "Immunity Statutes," also "Immunity," in the Index-Digest of the official Federal Anti-Trust Decision Reports, Volume IV, pages 590 and 678.

4 See note 2.

2. STATUTES RECOGNIZE SAID RIGHTS.

Statutory Provisions Stated.-Section 9, paragraph 7 of the Commission Act is as follows:

"No person shall be excused from attending and testifying or from producing documentary evidence before the Commission or in obedience to the subpoena of the Commission on the ground or for 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 natural 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, documentary or otherwise, before the Commission in obedience to a subpœna issued by it. Provided, That no natural person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.”

3. COMMISSION'S ORDERS DO NOT CONFER IMMUNITY.

Order Not Equivalent to Subpoena.-Immunity, however, does not extend its protection to persons who are directed to "cease and desist from the violation of the law," etc., under the Commission act. Such direction is not equivalent to a subpœna, in that particular.

"No order of the Commission or judgment of the court to enforce the same shall in any wise relieve or absolve any person, partnership or corporation from any liability under the antitrust acts." Federal Trade Commission Act, Section 5, paragraph 7.

The orders referred to are those instituted in proceedings where the Commission shall deem it "to the interest of the public" that it shall take steps to prevent or abate "unfair methods of competition in commerce." While the ability to serve subpoenas is a power which is very necessary, in fact absolutely required to make effective the Commission's right to examine corporate books, accounts, records, documents in proceedings upon its own initiative or in certain specified instances at the request of the President of either House of Congress, or of the Attorney

General-there is no authority for it to issue any order except in proceedings instituted in respect to matters "to the interest of the public."

The question of immunity, accordingly, here relates to orders that can be issued only in those semi-administrative proceedings, obedience whereof could not properly be expected to convey immunity. Immunity by exemption is essentially an incident pertaining to criminal actions; therefore where no criminal penalty attaches to disobedience of orders which are issued as an incident to distinctly civil proceedings, enforceable by civil prosecutions for contempt,-some definite legislative intent to grant immunity must be shown.

Corresponding Situation Under Clayton Bill.-A similar provision is contained in Section II, paragraph 6 of the Clayton Law. Price discrimination, conditional or "tying" contracts, owning or controlling stock in competing corporations and interlocking directorates (Sections 2, 3, 7, and 8), are each and all declared unlawful acts enforceable by restraining orders only, although the Circuit Court may assume jurisdiction and take all necessary steps to compel obedience thereto,-just as may be done where infractions of the orders in proceedings initiated by the Federal Trade Commission Act are made to appear.

Provisions of Section 1o not Enforcible by Civil Orders under Section 11.-In the case of common carriers, certain transactions with dealers in securities or supplies where a joint interest exists are prohibited after two years from the approval of the bill, under severe criminal penalties, unless competitive bidding is permitted under supervision of the Interstate Commerce Commission. This provision, contained in Section 10, is not made a subject for the Commission's orders, under Section 11; hence, obedience to those orders is not directly connected with punishment for the guilty acts prohibited by Section II, and there would not be any immunity flowing therefrom, even though such orders conferred that privilege.

A Precautionary Measure.-No doubt the specific denial of immunity as an incident to orders issued and served by the Commission or courts, pursuant to both the Federal Trade Commission Act and the Clayton Law is a precautionary measure taken by Congress for greater security and certainty. The rule as to immunity would not protect any person who performed acts of

any description in consequence of the issuance or service of such orders; the statute merely applies to those mandates the general policy of the non-extension of the criminal law and practice, in cases where the nature of the proceeding plainly shows the matter is one for exclusive enforcement by the machinery of the civil side of the court.

4. PRIVILEGE DOES NOT EXTEND TO CORPORATIONS. Immunity Confined to Natural Persons.-Reverting to the phraseology of the regulation respecting immunity contained in Section 9, paragraph 7 of the Federal Trade Commission Act, the words "natural person" relate, of course, to individuals as distinguished from corporations of every description; so that no immunity would thereby be extended to corporations, and the incorporated body can be prosecuted to the full extent of the law, regardless of subpoenas or testimony, and without any infraction of the Constitution. The use of the restrictive expression, "natural person," in the exempting words indicate plainly that Congress did not intend that corporations should even claim such a construction of the law.

Corporations did not receive the benefit of the exemption under the former immunity laws; and there is no reason for changing the rule now, when the main purpose is to reach and to cure abuses of corporate methods and power.

5. PURPOSE OF PRIVILEGE STATED.

Purpose of Exemption.-The object of the immunity laws is to permit courts and other judicial or administrative bodies to compel witnesses to answer questions without violating the provisions of the Constitution regarding self-convicting testimony. Without some means of withholding that privilege, accomplices and persons directly concerned as principals could always refuse to testify, and thereby the wheels of justice would, in very many cases, cease to revolve. In effect, where acts complained of carry with them a criminal liability, the court, commission or government attorney in a given case, is put to an election whether the testimony of the witness shall free him from danger of prosecution; or whether the right to institute future criminal proceed

5 United States v. Armour & Co., 142 Fed. 808.

ings shall be retained and the benefit of the testimony forfeited as the consideration for that right.

Constitutional Amendments which Supply Immunity.-The Constitutional Amendments as they apply will be presented and considered.

The Fifth Amendment to the Constitution of the United States provides

"Nor shall [any person] be compelled in any criminal case to be a witness against himself."

In a leading case the court held:

"The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.”

6. ACTUAL JEOPARDY MUST BE SHOWN.

Only Actual Jeopardy Affords Immunity.-If the statute of limitations has run against the criminal prosecution, or for any other effectual reason the witness is in no danger of trial and conviction upon such charge, the Fifth Amendment does not apply and the testimony can be compelled. The theory, of course, under which immunity is given is that an agreement exists whereby the government agrees not to prosecute the witness criminally by reason of any facts by him disclosed, nor to use his testimony in any manner that will place him in jeopardy,—a theory which in its effect removes the possibility of conviction and negatives the right of the witness to remain silent."

It has been held that immunity does not extend to witnesses called by the defense in a civil suit; also, that a witness cannot refuse to testify before the grand jury, when there exists a Federal statute granting immunity, notwithstanding the exemption is not so broad as to preclude a prosecution in a State court, for the Fourth Amendment is satisfied when it guards against further prosecution within the same jurisdiction and under the same sovereignty.R

6 Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110; reversing 44 Fed. 268. For text of constitutional provisions, see Appendix F, pages 286-7.

7 Hale v. Henkel, 201 U. S. 43, 66, 26 Sup. Ct. 370, 50 L. Ed. 652; affirming 139 Fed. 496.

8 Hale v. Henkel, supra.