Page:The Green Bag (1889–1914), Volume 18.pdf/446

 EDITORIAL DEPARTMENT

415

willingness to go, and thus far alone should three interesting and important constitutional they go. In this they have no doubt evinced questions never before presented to the Su a willingness to go a step beyond the individu preme Court of the United States. First, that alism of Bentham. But in doing so they have, a grand jury may indict upon knowledge ac perhaps, merely asserted another and higher quired either by the observations of its mem individualism, the individualism of the state bers or the evidence of witnesses, even though itself. Bentham's idea was that the individual a specific charge against a particular person should have complete freedom of action in all has not been previously before it. things where restraint was not necessary for "The second point decided by the court is securing a like freedom on the part of his that an officer of a corporation may not, in its neighbor. The modern enlightened collec- behalf, plead a privilege under the Fifth tivist idea is that the strength of a nation or Amendment upon the ground that his answers of a state depends upon the strength and man may tend to incriminate the corporation . liness and intelligence of its individual citi This conclusion is based upon the view that zens, and that the preservation of these vir the constitutional privilege against self-intues is essentially a matter of governmental crimination is personal to the witness and may not be asserted in behalf of another. It was concern. In this connection he criticises the recent also decided that the Immunity Act of 1903 decision in the case of People v. Lochner. applied to a proceeding before a grand jury, "There has for a long time been, and per and prevented a witness from asserting the haps always will be, a conflict in the several privilege of the amendment in his own be states over the respective provinces of the half, the act affording him full protection from courts and the legislatures in the matter of prosecution on account of anything that he police legislation. That is to say, over the should testify to. question as to whether it is for the courts or "The remaining point settled by the decisions for the legislatures to determine upon the is that the production by an officer of a cor necessity or the exigency of any particular poration, under a subpoena duces tecutn, of piece of legislation. The Lochner case, how documentary evidence belonging to the cor ever, goes further. It not merely overrules poration, may not be objected to, except in the legislative discretion of the New York case of an abuse of the writ, either on the legislature, but the judgment of the New ground that under the Fifth Amendment such evidence would tend to incriminate the cor York courts. "The Supreme Court of the United States poration, or that under the Fourth Amend can hardly, while maintaining, except where ment such compulsory production would con interstate commerce is directly affected, a stitute an unreasonable search and seizure of strictly laissez fairs attitude in relation to the effects of the corporation. It was said in state vices, as in the case of cigarettes and support of this conclusion that there is a re intoxicating liquors, and in relation to state served right in the government to require a food supplies, as in the case of oleomargarine, corporation to disclose whether it has abused and after going to the almost absurd length of its privileges and franchises enjoyed in con ' the grandfather cases,' afford top reserve nection with commerce among the several anv other attitude in the great conflict be states. tween capital and labor." "The court said that it did not intend to The author believes that all this tends to intimate that the general government ' has a increase an unwholesome distrust of the judi general visitatorial power over state cor ciary on the part of workingmen. porations,1 but added that it did not wish to be understood ' as holding that an examina CONSTITUTIONAL LAW (Privilege, tion of the books of a corporation, if duly Searches and Seizures). In the June Colum authorized by act of Congress, would consti bia Lavj Review (V. vi, p. 375) Henry W. tute an unreasonable search and seizure within Taft gives a narrative of the scope of " The the Fourth Amendment." "Mr. Justice Harlan and Mr. Justice McKenna Tobacco Trust Decision," which sets at rest