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irresistible. That is the effect of the government conten-
tion. I am not able to bring my mind to accept that doc-
trine. *
The law never puts a premium on con-
tumacy. A person does not become a favored citizen by
resistance to a lawful requirement. * *This, then,
is the proposition to which we are led: When an officer
has a legal right to make a demand upon a citizen, who
has no legal right to refuse, and that citizen answers under
such conditions, he answers under the compulsion of the
law-and immunity is thereby conferred.19

It will be interesting to note that in the foregoing instance the defendants had testified before the Commissioner of Corporations in obedience to a resolution of the House of Representatives, adopted March 7, 1904, that no subpoena was issued, and no oath administered.

Right to Immunity Narrowed by Statute.-It is extremely doubtful whether the courts will not find in the later amendments a legislative intention to overrule those judicial constructions and to fix by mandatory legislation the exact limits of the right of immunity. The amendment of June 30, 1906, to the Act of February 25, 1903, provides that "immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary, or otherwise, under oath"; and the provisions of Section 9, paragraph 7, of the Federal Trade Commission Act-with which we are especially concerned confines the exempting right to natural persons who "testify or produce evidence, documentary or otherwise, before the Commission in obedience to a subpoena issued by it." The exemption, of course, relates only "to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify," etc.

Fair Dealing Seems to Require Broad Construction.-The older rule seems more fair, certainly more equitable; and it appears hard that under the existing condition of the rulings the Fifth Amendment does not afford protection from prosecutions under the laws of the several States, where the same act creates a double criminal liability. Of course, conviction or acquittal before one tribunal would spell out freedom from being placed in jeopardy through a second trial for the identical offence; but it

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

seems proper and almost necessary in the spirit of fair play that the citizen who secures complete protection for himself in the Federal courts should not, by the same testimony, afford means for his own conviction under the statutes of a particular State, especially where this incomplete immunity is held a privilege which takes away his right to remain silent.

Anti-trust Investigations Benefited by Complete Immunity. -Perhaps some broadening of the immunity statutes will be found to be in accordance with the true meaning of the clemency which the Fifth Amendment was created to afford to citizens. It would certainly be helpful in proceedings to discover the true conditions in respect to trusts, monopolies and other unlawful combinations repugnant to the penal Anti-trust laws. The present rule is stated at p. 156, and is based upon the controlling decisions.20

11. RULINGS IN IMMUNITY CASES.

Witness Occupies Dangerous Position.-That the rights and obligations which flow from immunity are questions for the judge, would seem apparent; but in a situation where a judicial mistake might involve the defendant in most serious difficulties, it has been held: "Great latitude should be allowed to him [the witness] in judging for himself of the effect of any particular question."21 Whenever there is a serious doubt and risk as to the question being one that is within the scope of the immunity law, the witness has a right to stand on his constitutional privileges, notwithstanding the assurances of the judge as to the probable effect of the testimony.

Immateriality not Question for Witness.-Immateriality of evidence is not a complete defence, and the legal custodian of books, etc., may be punished for contempt, when his refusal to comply is based upon that ground. The order of commitment is interlocutory only; and appeal to the Supreme Court will not lie.22

The first case (Nelson v. U. S.) was an appeal from a judg

20 Hale v. Henkel, supra; Nelson v. U. S., 201 U. S. 920, 26 Sup. Ct. 358, 50 L. Ed. 773, affirming 52 Fed. 646; see also U. S. v. Armour & Co., supra.

21 Foot v. Buchanan, 113 Fed. 156.

22 Nelson v. U. S., supra; Alexander v. U. S., 201 U. S. 117, 26 Sup. Ct. 356, 50 L. Ed. 686.

ment holding the witness for contempt, and the Supreme Court entertained the appeal on the grounds: (1) that it was a final adjudication in a proceeding; (2) that a question of constitutional law under the Fourth Amendment was presented.

In the second case, (Alexander v. U. S.) the same court held that a mere order to testify without further proceedings did not carry with it the right to such review. This ruling was held to be adequate for the protection of the witness without unduly impeding the progress of the case. In an earlier case, it was held proper to release the recalcitrant witness on habeas corpus; and no doubt when the refusal is founded upon a reasonable doubt as to the legal result and is not aggravated nor wilfully contumacious and obstinate, the court will permit this means of awaiting the decision of the appeal outside of prison walls.

Certain Rulings Considered.-Before closing this chapter and departing from the subject of the immunity which testimony in behalf of the prosecution grants in Anti-trust cases, it might be said that the doctrine of former jeopardy and the constitutional guarantees are applicable to trials in which misdemeanors as well as felonies are concerned.23 An indictment or information so defective as to be unable to support a conviction has been held in England and the United States not a "proceeding" which will confer privilege against a second and further prosecution; but the Supreme Court has held that this rule does not apply where the case actually goes to the jury and a verdict of acquittal is rendered; such verdict being sufficient to constitute a bar to subsequent prosecution for the same alleged offence.24

Two criminal proceedings which are in reality two charges of the same nature-one being a larger offence-will be decided by a verdict in either; and further criminal action is barred.25

But this rule does not prevent a legislative body from carving several distinct crimes out of one single act or transaction,-in such a case conviction on one or both may be obtained.26

How, or whether, these rulings can be harmonized, time alone can disclose.27

23 Berkowittz v. U. S., 93 Fed. 452, 35 C. C. A. 379.

24 Bell v. U. S., 163 U. S. 662; see 12 "Cyc," pages 261-5.

25 In re Bennet, 84 Fed. 324.

26 United States v. Hermison, 26 Fed. Cas. No. 15, 308; 3 Sawyer 556;

see, generally, 12 "Cyc," pages 382-3.

27 For Immunity Statutes, see Appendix H, pages 289, 290,

CHAPTER XIV.

HISTORY AND APPLICATION OF PROVISIONS OF CLAYTON LAW RELATING TO ENCOURAGEMENT AND PROTECTION OF LABOR.

1. Inception of Sherman Anti-trust Act.

2. Question of Exempting Labor Raised.

3. Opposing Argument by Senator Edmunds.

4. Exclusion of Labor Provision from Sherman Law. 5. Argument Criticized.

6. Equality of Corporation and Labor Union Noted.

7. Lawful Organized Labor Should be Encouraged.

8. Leading Decision Quoted.

9. "Strike"-Usual Means of Compulsion.

10. Right to Refuse to Deal.

11. "Boycott."

12 Protection Afforded by Sections 6 and 20 of Clayton Law. 13. Provisions Separately Examined.

14. Rights of Labor Confirmed.

General Comments.-This subject affords another instance where the legislative mind has returned to its first estate after wandering far afield. As in spelling, first instincts are often more dependable than are the opinions that result from deliberate reflection; for the test of experience and mature judgment usually shows the first position to have been right.

1. INCEPTION OF SHERMAN ANTI-TRUST ACT.

Circumstances Attending Enactment of Sherman Law.-At the time of the debates preceding the passage of the original Antitrust act, that measure was ably presented and represented the combined labors of some of the most acute minds of that day. Senator Sherman is the author of the original draft. When the law-Senate Bill No. 1, of the Fifty-first Congress-was proposed on December 4, 1889, it was referred to the Senate Committee on Finance, of which Senator Morrill at that time was chairman, although Senator Sherman was the most active member.

On January 14, 1890, Senator Sherman reported the Sherman Bill to the Senate from the Finance Committee, and on February 27th, he moved the Senate to proceed to its consideration. That

motion having been adopted, Senator George, of Mississippi, an able lawyer and member of the Judiciary Committee, entered at once upon the discussion of its salient features. In his argument the speaker pointed out the probability that the proposed statute could be successfully attacked because, (1) it assumed to regulate the production, etc., of some commodities within the limits of individual States; (2) it made possible the doing of acts outside of the United States which were prohibited within the domestic field. This argument was so persuasive that many Senators were convinced the bill required material amendment prior to its enactment into law.

Consideration was resumed on March 21st; whereupon Senator Sherman informed the Senate that the Committee on Finance, after conference, had decided to present a substitute for the pending measure. That substitute struck out all the bill after the enacting clause and re-stated its provisions in a form intended to strengthen the constitutionality thereof by confining its prohibitions to persons or corporations residing in different States or Territories of the United States or foreign countries. (For convenience of comparison, see the two drafts printed in full in Appendix K, pages 297-9.)

2. QUESTION OF EXEMPTING LABOR RAISED.

Amendment Exempting Labor Organizations Submitted.Among various amendments one was offered to the effect that the act should not be construed to apply to any agreements or conditions among laboring men made for the purpose of lessening their hours of labor or of increasing their wages, nor to agreements or combination of persons engaged in horticulture or agriculture made with a like purpose of enhancing the prices of the articles they produce. Thus early, in fact, at the very inception of the original Anti-trust law,-the question of the necessity for Provisions Relating to the Encouragement and Protection of Labor (the subject-matter of this chapter) was squarely presented to Congress for consideration and action. Upon that important theme the main disputant appears from the official record to have been Senator Edmunds.

3. OPPOSING argument BY SENATOR edmunds. Exemption of Organized Labor Opposed in Senate.-He approached the measure as a whole in a friendly attitude and advo

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