whose depositions are taken, and the persons before whom the depositions are taken, are to receive the same fees respectively as are paid for like services in the federal courts.

§ 47. Obtaining information from other departments: The power of the Commission to exact records, papers, and information from other departments and bureaus of the government, is limited by the provision that the President must first direct such other bureau or department to comply with the Commission's request for information, and that the only records, papers and information which the Commission is authorized to request are those relating to corporations subject to the provisions of the Trade Law.205

§ 48. Narrow construction possible: Having regard for the Constitution, it is at least open to doubt whether the investigative power of the Commission can be given operation and effect, especially as to natural persons, to the full limits to which the Trade Law in terms apparently purports to extend that power.

Whether Congress itself has unlimited power to investigate the private affairs of natural persons for the purpose of acquiring information to assist it in enacting additional legislation, and whether Congress can delegate such power, if it possesses it at all, to an administrative body, are constitutional questions which the Supreme Court of the United States has recognized as of grave difficulty, but has expressly left open.206 The same doubt would seem to exist as to the power of Congress or of the President, or both together, to require, or to authorize an administrative body to require, nat

205 Trade Law, Sec. 8. Cf., 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Sec. 8602, p. 3888, relating

to Interstate Commerce Commission.

206 Harriman v. Int. Com. Com. (1908) 211 U. S. 407, 417-418.

ural persons to disclose their private affairs for the purpose of enabling a discovery as to whether the antitrust laws have been violated, or of facilitating the enforcement of such laws.

Notwithstanding the broad investigative power which the Trade Law purports to confer upon the Trade Commission, it may perhaps be held that the only matters in respect of which the Trade Commission can compel natural persons to furnish evidence relating to their private affairs, are such matters as may be made the subject of a complaint, and an investigation in form judicial, before the Commission,207 that is, violations of the inhibition of the Trade Law against unfair methods of competition in commerce, and violations of sections two, three, seven and eight of the Clayton Law.

§ 49. Self-incrimination: Even as to matters with reference to which the Commission may lawfully require natural persons to disclose their private affairs in any degree, the investigative power of the Commission is further limited by the protection against self-incrimination guaranteed to natural persons by the Fifth Amendment. That protection does not extend to corporations,208 nor does it extend to natural persons in respect of the documentary evidence of corporations, but only as to the natural person's own private papers.209

§ 50. Immunity clause: With a view doubtless to disentitling a natural person to refuse to furnish information to the Commission on the ground that such information might incriminate him, Congress inserted in

207 Harriman v. Int. Com. Com. (1908) 211 U. S. 407, 419-420, 421; United States v. Skinner (1914) 218 Fed. 870, 872.

208 Hale v. Henkel (1906) 201 U. S. 43, 74-75.

209 Wilson V. United States (1911) 221 U. S. 361, 379-386; Dreier v. United States (1911) 221 U. S. 394, 399-400; Wheeler v. United States (1913) 226 U. S. 478, 488-490.

the Trade Law a clause which declares that no person shall be excused from testifying or producing evidence before the Commission, or in obedience to the subpoena of the Commission, on the ground that such evidence may tend to incriminate him, but that 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 subpoena issued by it.210

A natural person, within the operation of an immunity clause enacted by Congress, may be compelled to furnish evidence notwithstanding the tendency thereof may be to incriminate him, if the protection against prosecution. afforded by the immunity clause is as broad as that contained in the Fifth Amendment.21 But otherwise not.212 An immunity clause may, it seems, operate to protect a witness from prosecution in respect of documentary evidence of a corporation which he may produce, as well as in respect of his own private papers, 213 although, as noted,214 the protection against self-incrimination guaranteed by the Fifth Amendment does not extend to the production by a natural person of a corporation's documentary evidence.

Whether because of a desire to prevent persons from acquiring immunity from prosecution by obtruding testimony upon the Commission, or to safeguard the Commission against conferring immunity inadvertently, or

210Trade Law, Sec. 9. Cf., 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Secs. 8577, 8578, pp. 3846, 3847, relating to the immunity of a witness from prosecution in connection with matters testified to before the Interstate Commerce Commission.

211 Brown v. Walker (1896) 161 U. S. 591.

212Counselman V. Hitchcock (1892) 142 U. S. 547.

213 Hale v. Henkel (1906) 201 U. S. 43, 73.

214 Sec. 49, supra.

for some other reason, Congress so drafted the immunity clause in the Trade Law as apparently to make the issuance and service of a subpoena a prerequisite of protection from prosecution as to any matter concerning which a witness may furnish evidence to the Commission. In thus making a subpoena essential to protection, and also perhaps in other particulars, the immunity clause of the Trade Law differs from some other statutory provisions of like nature which have been held to afford protection from prosecution as broad as that guaranteed by the Fifth Amendment.215 In addition to refusing to furnish self-incriminating evidence unless and until he shall have been first duly served with a proper subpœna, prudence plainly requires that before answering any self-incriminating interrogatory which may be propounded to him, or producing any self-incriminating documentary evidence, before the Commission, a natural person, wishing to avail himself of the protection of the immunity clause in the Trade Law, should also take other precautions. Before furnishing any self-incriminating evidence, the witness should make certain that such evidence is within the scope of the subpoena served upon him, and that it relates to a matter concerning which the Commission has clear power to compel the giving of testimony and the production of documents. And in estimating the coercive authority of the Commision in respect of obtaining evidence, the witness should take the narrow view of the Commission's investigative power suggested in a preceding section.216 Also, before furnish

215 United States v. Armour & Co. (1906) 142 Fed. 808, 819, 822825. Cf., however, 4 U. S. Comp. Stat. (1913) Tit. 56A, Ch. A, Sec. 8580, pp. 3848-3849, which seems to make a subpoena essential to protection under all of the immu

nity clauses in the federal statutes, including those in respect of which it was held in Armour & Company's case that a subpoena was not necessary to protection. 216 Sec. 48, supra.

ing any self-incriminating evidence, even if such evidence be clearly within the scope of the subpoena and the coercive authority of the Commission, the witness should expressly claim his constitutional right to be silent and not incriminate himself, and should not give self-incriminating evidence until after his constitutional privilege of silence shall have been denied him. He should not trust to the immunity clause of the Trade Law to operate automatically, in the absence of an express claim of his constitutional privilege against selfincrimination, to protect him against subsequent prosecution based on the self-incriminating evidence given by him.217

§ 51. Unreasonable searches and seizures: Although corporations are not within the protection of the Fifth Amendment, the investigative power of the Commission as to corporations is perhaps limited to a degree by the prohibition in the Fourth Amendment against unreasonable searches and seizures. The restraint of the Fourth Amendment upon the Commission's subpœnaing, or examining and copying, the documentary evidence of a corporation, cannot however be regarded as very nar

row,218

§ 52. Methods of enforcing power: The Trade Law provides four methods whereby the Trade Commission's investigative power may be enforced, should the exercise thereof be sought to be obstructed or resisted. They are substantially the same as the methods whereby the Interstate Commerce Commission may secure the enforcement of its investigative power. They are (1)

217 United States V. Skinner (1914) 218 Fed. 870.

218 Hale v. Henkel (1906) 201 U. S. 43, 76-83; Wilson v. United

States (1911) 221 U. S. 361, 382384; Int. Com. Com. v. Goodrich Transit Co. (1912) 224 U. S. 194, 215.