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United States, in any criminal proceeding" was insufficient in that, while it did prohibit the use of the testimony which might be given, it did not prevent a subsequent prosecution of the witness for the offense regarding which he might have been compelled to testify. In order to correct this deficiency in the law, Congress, by act of February 11, 1893,76 provided that, in the case designated, "no 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 said Commission, or in obedience to its subpoena.'

99 77

This law was upheld in Brown v. Walker.78

§ 432. Corporations not Protected Against Testimony by Their Agents.

In Hale v. Henkel79 it was urged that while the immunity statute might protect the individual witness, it would not protect the corporation of which he was the agent and representative. To this the court answered that it was not the intention of the statute to do this nor was there a constitutional necessity that this should be done. The right guaranteed by the Fifth Amendment, it was declared, is purely a personal one of the witness. "It was not intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person. If he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation."

76 27 Stat. at L. 443.

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77" Provided, that no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.”

78 161 U. S. 591; 16 Sup. Ct. Rep. 644; 40 L. ed. 819. In Hale v. Henkel (201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652), a statute of February 25, 1903, was upheld which grants immunity with reference to prosecution under the Anti-Trust Act of 1890. The word "proceeding" as employed in the phrase of the statute that no one should be prosecuted, etc., on account of any testimony given in any "proceeding, suit or prosecution "under the acts enumerated, was held to include examinations before a grand jury. 79 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652.

§ 433. Private Books and Papers.

The immunity of the individual from compulsory self-incrimination includes the right to refuse to produce private books and papers which will have, or will tend to have, this effect.so But it does not permit him, as an officer of a corporation, to refuse to produce its books and papers when the corporation is charged with a violation of a statute by the State of its creation or of a State in which it is doing business or of an act of Congress.$1

§ 434. Unreasonable Searches and Seizures.

The question as to the right of the government to compel the production of books and papers is closely connected with the provision of the Fourth Amendment with reference to unreasonable searches and seizures.

The provision of the Fourth Amendinent that "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," has received comparatively little direct interpretation and application at the

so Boyd v. United States, 116 U. S. 616; 6 Sup. Ct. Rep. 524; 29 L. ed. 746. Bocks and papers of a defendant obtained otherwise than through his own hand may be used against him, and this even though they may have been obtained by illegal means. Adams v. New York, 192 U. S. 585; 24 Sup. Ct. Rep. 372; 48 L. ed. 575.

81" The corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It has certain special privileges or franchises, and holds them subject to the laws of the States of the limitations of its charter. . . . Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. . . . It is true that the corporation in this case was chartered under the laws of New Jersey . but such franchises, so far as they involve questions of interstate commerce, must also be exercised in subordination to the power of Congress to regulate such commerce. . . . The powers of the General Government in this particular in the vindication of its own laws are the same as if the corporation had been created by act of Congress." Hale v. Henkel, 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652. See also Consolidated Rendering Co. v. Vermont, 207 U. S. 541; 28 Sup. Ct. Rep. 178; 52 L. ed. 327.

hands of the Supreme Court. In Ex parte Jackson82 it was held that the Amendment applies to sealed papers in the mails.83

§ 435. Corporations Protected.

In Hale v. Henkel the court, while refusing to hold that corporations are protected by the Fifth Amendment from incrimination by the compulsorily obtained papers and testimony of their agents, go on to say that they are not to be understood as declaring that corporations are not granted immunity from unreasonable searches and seizures, and that a judicial order for the production. of books and papers may in certain cases constitute an unreasonable search or seizure. And in the case at bar, the subpoena duces tecum was held too sweeping in its terms to be deemed reasonable.

§ 436. Boyd v. United States.

The most careful consideration which the Fourth Amendment has received by the Supreme Court is that contained in the opinion rendered in the case of Boyd v. United States.85

In this case the intimate relation between the Fourth Amendment and that clause of the Fifth which prohibits the accused from being compelled to be a witness against himself, is emphasized. "We have been unable to perceive," say the court," that the seizure of a man's private books and papers to be used against him is substantially different from compelling him to be a witness against himself." "We are also of opinion," the court continue, "that

proceedings instituted for the purpose of declaring the forfeiture 82 96 U. S. 727; 24 L. ed. 877.

83" The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution."

84 201 U. S. 43; 26 Sup. Ct. Rep. 370; 50 L. ed. 652. 85 116 U. S. 616; 6 Sup. Ct. Rep. 524; 29 L. ed. 746.

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of a man's property by means of offenses committed by him, though they may be civil in form, are in their nature criminal" and thus brought within the operation of the Fourth Amendment and that part of the Fifth which relates to self-incrimination.

In this case the court held void the provisions of a customs revenue law of Congress of 1874, which authorized the courts, on motion of the government, to require the defendant to produce his private books and papers, and in case of his refusal so to do, declared that the allegations of the government were to be held as confessed. This was held repugnant to both the Fourth and Fifth Amendments.86

§ 437. Cruel and Unusual Punishments.

The provision of the Eighth Amendment that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and

86 For further discussion of the Fourth Amendment see the article of A. A. Bruce, "Arbitrary Searches and Seizures" in The Greenbag, XVIII, 273, 1906. The general law relating to the issuance of search warrants is excellently stated by Cooley in the Constitutional Limitations (7th ed., 429), as follows: "In the first place they are only to be granted in the cases expressly authorized by law; and not generally in such cases until after a showing made before a judicial officer, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender, or the property which was the subject or instrument of the crime, is concealed in some specified house or place. And the law, in requiring a showing of reasonable cause for suspicion, intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well founded; for the suspicion itself is no ground for the warrant except as the facts justify it. In the next place, the warrant which the magistrate issues must particularly specify the place to be searched and the object for which the search is to be made. .. The warrant is not allowed for the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offense actually committed. Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction. Those special cases are familiar, and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or prohibited liquors kept for sale contrary to law, for obscene books or papers kept for sale or circulation, and for powder or other explosives and dangerous material so kept as to endanger the public safety.

unusual punishments inflicted" has given rise to few adjudications in the Supreme Court.

The prohibitions are not included within " due process of law," and are not, therefore, made applicable by the Fourteenth Amendment to the States.87

The fact that the method of administering the death penalty, for example, by electrocution, is new, does not bring it within the constitutional prohibition, unless it also inflicts what amounts to lingering torture. "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” 88

The infliction of a heavier penalty upon a person convicted of felony who has before been convicted of felony, is not the imposition of a cruel and unusual punishment.89

In the case of Weems v. United States decided May 2, 1910, is probably the most interesting discussion which the prohibition of cruel and unusual punishments has received by the Supreme Court. The report of this case has come to hand too late for an adequate presentation here of the points or reasoning involved. It may, however, be said that the case is significant, or potential A statute which should permit the breaking and entering a man's house, and the examination of books and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases; but the power of the legislature, to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons, and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enactment of such laws is to incline to the side of safety."

87 Ex parte Kemmler, 136 U. S. 436; 10 Sup. Ct. Rep. 930; 34 L. ed. 519. 88 Ex parte Kemmler, 136 U. S. 436; 10 Sup. Ct. Rep. 930; 34 L. ed. 519. See also Wilkerson v. Utah, 99 U. S. 130; 25 L. ed. 345.

89 McDonald v. Massachusetts, 180 U. S. 311; 21 Sup. Ct. Rep. 389; 45 L. ed. 542.

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