XII THE TOBACCO TRUST DECISIONS 1 THE decisions of the Supreme Court of the United States in the Tobacco Trust cases 2 mark the opening of a new phase in the enforcement of the Interstate Commerce and the Sherman Anti-Trust Law. They also set at rest three highly interesting and important constitutional questions never before presented to the court. The first of these questions relates to the extent and character of the inquisitorial power of a grand jury under the Fifth Amendment of the Constitution. That amendment provides that no person shall be held to answer for an infamous crime "unless on a presentment or indictment of a grand jury." It was claimed that by this provision the powers of a grand jury were limited to those possessed by that body under the common law, and that it could only act after a bill of indictment had been submitted to it. That it had power, in the absence of a specific charge, to inquire whether a crime had been committed and, if so, who committed it, was vigorously denied. The Supreme Court, however, unanimously held that, under the practice almost universal in this country since the adoption of the Constitution, a grand jury has broad inquisitorial powers, and that upon knowledge acquired either by the observations of its members or by the evidence of witnesses, it may indict, even though a specific charge against a particular person has not previously been before it. Authority is thus given for a general 1 Reprinted from the Columbia Law Review of June, 1906. 2 Hale v. Henkel and McAlister v. Henkel, decided by the United States Supreme Court, March 12, 1906. investigation by a grand jury when it receives information from any source which points to the probability that some crime has been committed, even though the criminal and the exact circumstances of the criminal act are not known either to the prosecuting officer or to the grand jury itself. The second point decided by the court is that an officer of a corporation may not, in its behalf, plead a privilege under the Fifth Amendment upon the ground that his answers may tend to incriminate the corporation. This conclusion is based upon the view that the constitutional privilege against self-incrimination is personal to the witness and may not be asserted in behalf of another. It was also decided that the Immunity Act of 1903 applied to a proceeding before a grand jury, and prevented a witness from asserting the privilege of the amendment in his own behalf, the act affording him full protection from prosecution on account of anything that he should testify to. The remaining point settled by the decisions is that the production by an officer of a corporation, under a subpoena duces tecum, of documentary evidence belonging to the corporation may not be objected to, except in case of an abuse of the writ, either on the ground that under the Fifth Amendment such evidence would tend to incriminate the corporation, or that under the Fourth Amendment such compulsory production would constitute an unreasonable search and seizure of the effects of the corporation. It was said in support of this conclusion that there is a reserved right in the government to require a corporation to disclose whether it has abused its privileges and franchises enjoyed in connection with commerce among the several states. That questions like these have not been decided be fore may seem strange; but a glance at the history of anti-trust and interstate commerce litigation affords an explanation. 8 The Interstate Commerce Law1 was passed in 1887 and the Sherman Law 2 in 1890, and since they went into effect there have been comparatively few efforts to enforce the criminal remedies which they prescribe. Both Republican and Democratic administrations have generally considered it sufficient to resort only to the civil remedy of injunction. The Sugar Trust (Knight), the Kansas City Stock Yards, the Addyston Pipe, the Trans-Missouri Freight Association, the Joint Traffic Association,' and the Northern Securities cases were suits for injunctions in which the court had to consider specific and easily proven agreements. In none of those cases was the policy of suppressing the facts resorted to by the defendants, for the reason, probably, that the corporations relied upon the contention that, even conceding that they had made the agreements, they were not in violation of the law. It has been mainly since the law has come to be better understood that notable instances have occurred where great corporations have resorted to obstructive measures which would, if successful, make it difficult or impossible to procure evidence by which the legality of their acts may be tested. Questions like those involved in the Tobacco Trust cases were not at first seriously pressed. 124 U. S. Stat. at Large 379. 2 26 Ibid. 209. 3 United States v. Knight (1895) 156 U. S. 1. 4 Catting v. Kansas City Stock Yards Company (1901) 183 U. S. 79. 5 Addyston Pipe and Steel Company v. United States (1899) 175 U. S. 211. • United States v. Trans-Missouri Freight Association, (1897) 166 U. S. 290. 7 United States v. Joint Traffic Association (1898) 171 U. S. 505. 8 Northern Securities Company v. United States (1904) 193 U. S. 197. |