Not only is the Congress limited with regard to the subject matter upon which it may legislate, and therefore into which it may inquire, but severe and historical limitations have been set upon the exercise of its power within such limits. It has not unlimited power even when the Congress is competent to legislate upon the subject matter which it proposes to investigate. The chief limitation upon the exercise of that power is the fourth amendment, which insures the person of the citizen against unreasonable searches and seizures. And I have never heard it questioned that the right of privacy which is assured to persons under the fourth amendment, is extended alike to natural and artificial persons, and that the records of a corporation even when its dominant purpose is to engage in interstate commerce, and when it is an instrumentality of commerce, is not protected under the fourth amendment against unreasonable or unnecessary disclosure of its private affairs.

Now, Mr. Chairman, the power of Congress to conduct inquiries for the purpose of obtaining information upon which to legislate is not a power anywhere conferred in the Constitution of the United States. It is a power implied from the duty or the power to legislate on authorized subjects. But, sirs, I know of no principle more firmly fixed in the American legal structure than that an implied power must be indispensable to the exercise of an express authority; and that with respect to the exercise of that authority the power asserted will be strictly construed, while the power of limitation upon the exercise of the power will be liberally construed to protect the citizen within the limitations exercised by law.

That is the doctrine that is set forth in the leading case under the fourth amendment to the Constitution of the United States, being the case of United States v. Boyd, (116 U. S. 635), in which the court had occasion to examine the origin of the fourth amendment and to point out the historical circumstances that impressed the fathers of the Republic and caused the people to write in that provision They turned back to that historic decision, which is one of the land marks in British and American jurisprudence, the case of Entick v. Carrington (19 Howell St. Tr. 1029), decided by Lord Camden in an opinion written in 1765 and referred to in the brilliant and eloquent address in opposition to writs of assistance in Boston, from the first moments of the awakening of the Revolution.

Lord Camden said then, in the face of the practice which had been prevailing in England of seizing private papers to prove misconduct or because of an administrative or executive official desire to pry into the affairs of the citizen or subject, referring to the grave issues involved:

Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure that they will hardly bear an inspection; and though the eye can not by the laws of England be guilty of a trespass, yet, where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. * * *

Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown, where the law forceth evidence out of the owner's custody by process. * * * It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it would seem that search for evidence is disallowed upon the same principle. Then, too, the innocent would be confounded with the guilty.

And as I shall presently point out, a part of this resolution is directed to inquiry into what implies, certainly implies misconduct or improper conduct.

Now, in United States v. Boyd (116 U. S. 635), the Supreme Court of the United States quoted that language and referred to that decision with overwhelming emphasis. The case before them represented no such extreme situation as that described by Lord Camden. But the court pointed out that the important protection which it was intended should be placed around the private affairs of the citizen deserved the most careful protection of the court and the careful consideration of legislative bodies, and in referring to the case before it, used this language, which seems most appropriately to refer to the suggestions contained in this proposal:

Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.

Now, Mr. Chairman, in the course of the exercise of the power the Congress itself on several occasions, either by itself or through the agencies which it has created of an administrative character, has come into collision with that limitation fixed by the Constitution. It was first asserted in Anderson v. Dunn (6 Wheat. 204), but there the issue went off on the proposition whether the Congress possessed the judicial power to punish for contempt. It did not involve the congressional power of legislative inquiry. But that was involved directly in the case of Kilbourn v. Thompson (103 U. S. 168), which has become an historic case in presenting the limitations of congressional power. That case was not only important in itself but it has been repeatedly referred to in all subsequent decisions of the Supreme Court of the United States; and finally, it was followed by the present Supreme Court of the United States in its last utterance on that subject, in McGrain v. Daugherty. It stated the law as it is to-day and fixed the limitations upon the exercise of congressional power.

The second set of cases in which this question has arisen came from the exercise of the powers of either the Interstate Commerce Commission inquiring by authority by law or by direction of the Senate of the United States into particular operations or affairs of interstate carriers, or it came upon questions raised with respect to the power of the Federal Trade Commission to make general inquiries under a resolution of the Senate or under the authority of sections 5 and 6 of the Clayton Act, and requiring a general production of

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books, papers, and records for its inspection in order that it might obtain therefrom information that it sought on the particular questions before it.

In all these cases the Supreme Court of the United States has said again and again in various forms that general inquiries into the affairs of the citizen, individual or corporate, can not be authorized by either House of Congress, and will be repulsed when attempted by the instrumentalities which the Congress creates or which either House of Congress directs to act.

I point out first of all, Mr. Chairman and gentlemen of the committee, that the inquiry sought to be directed here is a general inquiry, an inquiry so sweeping in its nature that any proposal adopted in either House of Congress is no parallel for its terms. It proposes not only an inquiry into all public-utility corporations engaged in the generation of electric light and power, and gas, natural or artificial, whether engaged in local service exclusively or not, but it proposes to extend the right of inquiry into every corporation, financial, contracting, managerial, that may be related to them or affiliated with them. And certainly no terms could be broader or more inclusive than those used in the resolution to carry the power of a committee's inquiry, as it says "remotely," to the relationship between the primary object of the inquiry, the public-utility corporations described, and all other forms of corporate life, elsewhere referred to, which may be related to it.

Nor is it confined to the question of whether or not control is established by the public-utility, corporation over the various other forms of corporate life alluded to, or whether or not the stockholders of such public-utility corporations have control of these various described corporations, but what financial interest, and that means large or small, is possessed by anyone having stockholdings in a holding or public-utility corporation.

Senator SACKETT. Mr. Emery, would it cover these new investment trusts?

Mr. EMERY. I should think it certainly would, because they would be described as financial corporations within the terms of the resolution, I should assume.

Senator SACKETT. And investment trusts may own real estate and all other things?

Mr. EMERY. Yes; but I would assume that it would be proper to describe an investment trust as a financial corporation, and that is the phrase used in the resolution.

The CHAIRMAN. You may proceed.

Mr. EMERY. When you consider, then, the nature of the field that is covered, which is not merely public-utility corporations engaged in the interstate transportation of their product, but corporations which by their nature and description are entirely local in their production and distribution service, as well as all the other corporations described in the resolution that might be found to be related to them, it is a general inquiry into the corporate life of the United States as it is related to the production and distribution of electric light and energy, and gas, natural and artificial. And if that does not describe a general inquiry, I know of no language in the English vocabulary that can possibly be put together to effect a more complete description.

Nothing is clearer than that in the case which came before the Supreme Court of the United States involving the exercise of this implied power of Congress to inquire into the subject matter of legislation upon which it is competent to act; I say nothing is clearer than that the Supreme Court of the United States has again and again denied to either House of Congress, or to the Congress, or to instrumentalities of the Congress, the right to engage in an inquiry which in the cases considered was far less general in its nature than the inquiry this committee is asked to approve.

The first case which came before the Supreme Court involving the exercise of the powers of the Interstate Commerce Commission was Interstate Commerce Commission v. Brimson (154 U. S.). There the question involved the competency of the Congress to create an administrative agency with power to inquire into the affairs of carriers, and in sustaining the power of the Congress to create that body it became necessary for the court to discuss the character of the power which the Congress could exercise, and it there stateswell, I thought I had the opinion before me, but I see I have notnevertheless the court stated that neither House of Congress possesses any general power to inquire into the affairs of the citizen.

In the case of Harriman v. Interstate Commerce Commission (211 U. S. 417), the court in talking of the power of the committee to compel Mr. Harriman to answer questions with respect to his ownership of stock in various corporations, in response to the inquiry they were making into combinations and mergers in the railroad world, used this language, in the opinion written by Mr. Justice Holmes:

The contention of the commission is that it may make any investigation that it deems proper, not merely to discover any facts tending to defeat the purposes of the act of February 4, 1887, but to aid it in recommending any additional legislation relating to the regulation of commerce that it may conceive to be within the power of Congress to enact.

The Interstate Commerce Commission being authorized under the statute, or directed to make reports to the Congress and to make recommendations with respect to future legislation :

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and that in such an investigation it has power, with the aid of the courts, to require any witness to answer any question that may have a bearing upon any part of what it has in mind. The contention necessarily takes this extreme form, because this was a general inquiry started by the commission of its own motion, not an investigation upon complaint, or of some specific matter that might be made the object of a complaint. And the result of the arguments is that whatever might influence the mind of the commission in its recommendations is a subject upon which it may summon witnesses before it and require them to disclose any facts, no matter how private, now matter what their tendency to disgrace the person whose attendance has been compelled. * * *

As we already have implied, the main purpose of the act was to regulate the interstate business of carriers, and the secondary purpose, that for which the commission was established, was to enforce the regulations enacted. These, in our opinion, are the purposes referred to; in other words, the power to require testimony is limited, as it usually is in English-speaking countries, at least, to the only cases where the sacrifice of privacy is necessary-those where the investigations concerning a specific breach of the law.

Senator WALSH of Montana. Mr. Chairman, I dislike to interrupt the speaker, but these provisions of the resolution which are asserted as violative of constitutional principles are just exactly in the same form as every resolution adopted by the Senate for an investiga

tion. And I submit that if any witness is called before the committee, if a committee is directed to proceed with the investigation, and his rights under the fourth amendment of the Constitution are invaded in any way, why, he will do as Mr. Sinclair did-refuse to answer. And then upon proper proceeding in habeas corpus the question will be tested out as to whether his rights under the fourth amendment of the Constitution are transgressed or not. I had supposed this committee was desirous of getting through with this matter, but it does not seem to me that this discussion is pertinent at all to the matter before the committee.

Senator HAWES. I think it is very pertinent, Senator Walsh, and I want to ask some questions, and I should like to ask them right

now.

Mr. EMERY. May I just make a remark here, so that the suggestion made by the distinguished Senator from Montana [Mr. Walsh] may not pass without a reply?

Senator HAWES. All right.

Mr. EMERY. It is true, Mr. Chairman and gentlemen of the committee, that you may compel citizens of the United States to choose another forum in which to test out their rights, but it is none the less the duty of a committee of the Senate, I submit, to determine the character of the power which it will grant to be exercised upon citizens of the United States, than it is for the investigating committee, after it has organized for itself, to determine upon the protest of the citizen whether or not in his individual case his rights are at issue. There the rights of the individual may be involved. Here the rights of thousands of persons who are to be made subject to the proposed inquiry are at issue. You can not determine how the power that you may grant may be exercised, whether by the moderation and restraint and good intention of your representatives. But you can determine the measure of power which as Senators you will grant to a committee of the Senate to be exercised.

Senator WALSH of Montana. Mr. Chairman, that is the point I am making, that here is given the power to subpoena witnesses and to compel them to testify and that kind of thing, which is exactly in the same form as every other resolution adopted by the Senate, and yet the argument here is against the power of the Senate to do what it has been doing for a hundred years or more.

Mr. EMERY. Mr. Chairman, if you will permit me, I think I will show quite distinctly to you that the precise power contained in this resolution is power that has been denied and denied very recently. The CHAIRMAN. Well, you may go on with your statement.

Mr. EMERY. Do you want to make an inquiry of me now, Senator Hawes?

Senator HAWES. I want to ask some questions in order to get your point of view as to the scope of this investigation, if you will permit the questions at this time.

Mr. EMERY. Certainly.

Senator HAWES. For the purpose of illustration, I have in mind at small electric-light plant in Reynolds County, Mo., which is 20 miles from any railroad. It is run by water power from a spring, and it sells electric light to a little town of 1,000 or 1,500 inhabitants. No holding company has anything to do with it; it crosses no State line;