order on Brimson to testify before the Interstate Commerce Commission was entered by a court after a trial of the "controversy" at issue and if he had then disobeyed his punishment would have been the usual one administered by courts for disobedience of their decrees. And this procedure was upheld only because it was thought to be a proper exercise by the courts of their judicial functions in a proceeding judicial in form. In Commerce Commission matters, therefore, it is a court that alone exercises the entire judicial function when the compulsion of witnesses becomes necessary. Congress, on the other hand, in aid of legislation itself assumes what seems to me to be judicial powers-which under the Kilbourn case cannot be done and to enforce them calls on the Department of Justice to punish witnesses for the crime of refusing to testify.

If to you the ice seems thin, I can only say that the majority of the court crossed it with safety in the Brimson case, the repeated reading of which leads me to believe that the court would not have held constitutional an act making it a crime to refuse to answer questions asked by the Commission, without resort to a judicial tribunal. I must add, however, that Mr. Justice Brewer in his dissenting opinion16 states the effect of this decision to be that Congress can require "the Courts to punish for contempt those who refuse to answer questions put by either House, or any Committee thereof." That the majority of the court did not so regard their decision is evident from their statement that:

We do not overlook these constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168, 190. We said in Boyd v. United States, 116 U. S. 616, 630— and it cannot be too often repeated-that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sanctity of a man's home, and the privacies of his life.

In short I find in the prevailing opinion nothing to indicate agreement with the dissenting justices as to the consequences of

16 Reported 155 U. S. at page 4.

the Brimson case and much there and in the subsequent authorities reviewed that negatives this argument urged in dissent and overridden.

Opposed to the argument based on the precedent of the Brimson case is the stronger one, it seems to me, that follows in part from the Kilbourn case; for since that decision withholds judicial powers from Congress it cannot compel the production of evidence if that be strictly a judicial function as I believe it to be. That it is was vigorously asserted by Mr. Justice Field while holding the Circuit Court in the Pacific Railway Commission case, 32 Fed. 241, 250, wherein he held that an application by the Commission for an order to compel a witness to answer interrogations is not a "case" or "controversy" within the meaning of the Constitution. The subsequent Brimson case differs only with that conclusion and not with what was said as to the compulsion of a witness being purely judicial in character-indeed it expressly approves the first of these two portions of the Field opinion:

Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value. The law provides for the compulsory production, in the progress of judicial proceedings, or by direct suit for that purpose, of such documents as affect the interest of others, and also, in certain cases, for the seizure of criminating papers necessary for the prosecution of offenders against public justice, and only in one of these ways can they be obtained, and their contents made known, against the will of the owners. ****

It is the forcible intrusion into, and compulsory exposure of, one's private affairs and papers, without judicial process, or in the course of judicial proceedings, which is contrary to the principles of a free government, and is abhorrent to the instincts of Englishmen and Americans.

That the inferences I draw from the Kilbourn case are not without high warrant is shown by the portion of the opinion which follows the analysis of the English cases and immediately precedes the court's refusal to decide the question with which we are concerned:

We are of the opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases

in which the English courts have upheld these practices. Nor, taking what has fallen from the English judges, and especially the later cases on which we have just commented, is much aid given to the doctrine, that this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation.

And after conceding that Congress has all the powers of a court within the range of its expressly conferred judicial jurisdiction the opinion adds:

Whether the power of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen.

The first cry that is always raised by one who objects to appear or to produce his books for examination by a Congressional committee is to invoke the Fourth Amendment with its guarantee 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 *

But this it seems to me begs the question; for if in aid of legislation Congress has the right to compel the production of relevant evidence, certainly the exercise of that power is not an unreasonable search and seizure.17 If Congress lacks these inquisitorial powers it is because they are judicial in character and not essential aids to legislation. And if this be true, as I think it is, then Mr. Justice Field was on sound ground-even though he lacked the gift of prophecy-when with reference to the Kilbourn case, he said:

This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private affairs against the unlimited scrutiny of investigation by a congressional committee. The courts are open to the United States as they are to the private citizen, and both can there secure, by regular proceedings, ample protection of all rights and interest which are entitled to protection under a government of a written constitution and laws.

"If these powers do exist, the question then arises if they can be exercised by either House of Congress alone or only under a concurrent resolution. State vs. Guilbert, 75 Ohio State 1; 78 N. E. 931.

ANNUAL ADDRESS

THE SUPREME COURT, TODAY AND TOMORROW

By JAMES M. BECK

Solicitor General of the United States

Delivered before

The Colorado Bar Association

At Colorado Springs, Colorado
September 19, 1924

I am greatly honored by the invitation of this Association to deliver this annual address. It is with some diffidence that I do so, because I fear that I shall disappoint your expectations. Possibly you may feel, when I have finished, like the small boy who, after valorously struggling with the alphabet, remarked very solemnly to his mother that he doubted whether it was worth while to go through so much to learn so little.

My subject is the Supreme Court of the United States. To an audience of lawyers it is a threadbare theme. Το deserve your interest I must leave the beaten path of such discussions, and interest you with something more than the conventional eulogy of the court or the usual description of its functions.

It is one of the great courts of the world. I have had some acquaintance with the jurists of England and France, and I know that this is their opinion. It is the envy of publicists of other lands.

I do not know that its peculiar function in our jurisprudence has ever been better described than by a young Frenchman, who came to this country nearly a century ago and wrote an acute and subtle commentary upon our institutions.

In 1831 De Tocqueville published his "Democracy in America," a work nothing under-valued to the classic Federalist papers. Of the Supreme Court he says:

The peace, the prosperity and the very existence of the Union are

vested in the hands of seven Judges. Without their active cooperation the Constitution would be a dead letter. The Executive appeals to them for assistance against the encroachments of the legislative powers, the Legislature demands their protection from the designs of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against the interests of private citizens, and the conservative spirit of order against the fleeting innovations of democracy. Their power is enormous, but it is clothed in the authority of public opinion. They are the allpowerful guardians of a people which respects law, but they would be impotent against popular neglect or popular contempt.

Speaking to an audience of lawyers and to a larger audience of educated men and women, it will not be inappropriate to say that De Tocqueville was right, that anything that saps public confidence in that court not merely wars against the court and threatens its existence, but, as a matter of fact, challenges the Constitution itself.

It is a curious fact that the court has been almost continuously the subject of attack by different classes of our citizens, varying at different times, for a period of 121 years.

There is this important distinction between the attacks upon the judicial branch of the government and those upon the executive and legislative branches-for none of the great trinity of power has ever in a democracy escaped a fair measure, and sometime an unfair measure, of criticism-that, with respect to the executive and legislative departments, the attack has never been, except on the very rarest occasions, upon those departments as institutions, but generally only upon the individuals who for the time filled the offices of those departments.

In other words, the American people have rarely attacked the presidency as an institution. They have attacked every man who temporarily was the incumbent of that great office, not excepting Washington himself, but the attack was always upon the temporary incumbent, and not upon the institution. The same is true with respect to Congress, for the attack has generally been upon the individuals who from time to time formed Congress, and who, in each generation, are held up as Exhibit 1 of the degeneracy of the Republic. But the attack has rarely been against Congress as an institution.