there is a widespread expectation that each of them will undergo numerous changes within the next few years. Yet after all, it seems not unlikely that in their main characteristics they will stand. All three countries are well started upon a vigorous national life under them; the legislation required to complete the governmental systems contemplated by them is rapidly being passed; as time goes on it will be increasingly difficult to upset the institutions which they have created or sanctioned.

To the rest of the world perhaps the most significant fact about these constitutions is that they are based upon the principles of representative, democratic government, and not upon any of the systems which during the past few years have been pictured in certain quarters as ready to supplant everything that is in the realm of politics and economics. In comparison with the working political institutions of the older states of Europe none of them represents any striking advance in democracy. Yet these new constitutions do record the progress of modern democratic institutions, because in them constitutional provision is made for many of the conventional or statutory practices, methods and principles by means of which the older nations have sought to adapt their governments to the ever-changing needs of modern life. A legal recognition of the actual relationship between the titular and the actual executive, the creation of a chief of state standing in power somewhere between the American President and the British King, an explicit declaration of the manner in which the responsibility of the government to the legislature will be enforced, the adoption of economic councils to participate to some extent in legislation, a careful provision for modern methods of national financial procedure these and other interesting characteristics of one or more of these constitutions mark the trend of political development in Europe today. The experiences of these new states with such institutions cannot fail to enrich the political knowledge of all nations.

CONSTITUTIONAL LAW IN 1920-1921. II

THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT OF

THE UNITED STATES IN THE OCTOBER TERM, 1920

EDWARD S. CORWIN

Princeton University

IX. SELF-INCRIMINATION; SEARCHES AND SEIZURES

The "self-incrimination" clause of the Fifth Amendment was brought forward in five cases, in three of which it was attended by the "search and seizure" provisions of the Fourth Amendment. The most important of these cases was Gouled v. the United States, 45 in which the court was asked to pass upon the admissibility in evidence, first, of a paper obtained surreptitiously by officers of the government from the office of the accused; and secondly, of papers, described to be of "evidential value only," which were taken from the office of accused under a search warrant. The court, declaring that the constitutional provisions involved must receive "a liberal construction, so as to prevent stealthy encroachment upon the rights secured by them," held that the government had no right to the possession of any of these papers nor to the use of them as evidence. At the same time, it was held that if the government had had the right to seize the papers in question, for instance, as so much contraband property, and had done so under a warrant sufficient in form, "then it would have been competent to use them to prove any crime against accused as to which they constituted relevant evidence."

In the course of his opinion, Justice Clarke remarked incidentally that "Searches and seizures are as constitutional under the Amendment when made under valid search warrants as they are unconstitutional, because unreasonable, when made without them." Unless the Fourth Amendment has been partially repealed by the Eighteenth

45 255 U. S. 298. For a review of some recent cases in the lower Federal Courts throwing light on this subject, see note in the March issue of the Yale Law Journal at page 518.

Amendment, which seems most improbable on general principles, this language, if adhered to, would seem to dispose of the contention of advocates of a drastic enforcement of the Volstead Act, that a search without warrant may at times be "reasonable."

1946

The doctrine of the Gouled case is carried a step further in Amos v. the United States,47 in which it was ruled that the constitutional rights of an accused to be secure against unreasonable searches and seizures and self-incrimination were not waived by the action of his wife in permitting federal officers to search his home without warrant, and that the property thus obtained was not admissible evidence against him. On the other hand, it was ruled in Burdeau v. McDowell,48 Justices Brandeis and Holmes dissenting, that constitutional guarantees would not be violated by the admission as evidence against an accused of incriminating papers stolen from him by private persons and afterwards delivered to officers of the government. "The government having come into possession of the papers without a violation of petitioner's rights by governmental authority," says the court, it is free to use them. Thus the rule seems to be that, while the government may not compel an accused to produce his own papers as evidence against himself, it may, by subpoena, force their production for the same purpose by any third person having possession of them.

Of the two remaining cases under this heading, the notorious "Nicky" Arnstein is the hero.49 They held that "Nicky" was within his rights in refusing to testify, notwithstanding the provision of section 7 of the Bankruptcy Act, that no testimony given by a bankrupt shall be offered in evidence against him in any criminal proceeding, since this provision did not guarantee that such testimony would not be used to search out further evidence. The decision falls in line with the well-known case of Counselman v. Hitchcock.50

X. DUE PROCESS OF LAW; JUST COMPENSATION

Of the cases arising under the "due process of law" clause of the Fifth Amendment, the most interesting was Goldsmith-Grant Company

46 For the line of reasoning by which it was established that these two constitutional provisions should be read as complementary, see Boyd v. United States, U. S. 616.

47 255 U. S., 313.

48 256 U.S.-.

49 254 U. S. 71, and ibid., 379.

50 142 U. S. 547.

v. the United States.51 An automobile had been found "guilty" of participating in the removal of distilled liquors to a place of concealment, and was, notwithstanding the claim of the innocent seller, who had reserved title to it, pronounced forfeited to the United States, in accordance with section 3450 of the Revised Statutes. To the objection that this was punishing A for the guilt of B, the court answered that, "in breaches of revenue provisions, some forms of property are facilities," wherefor "Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a species of personality, a power of complicity and guilt in the wrong." The analogy of the ancient deodand was cited and also the passage from the Mosaic Law, "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." It was Blackstone's view the opinion adds, "that such misfortunes are in part owing to the negligence of the owner," and that "therefore, he is properly punishable by such forfeiture;" but whether this was 'so or not, section 3450 had been on the statute books since 1866, and the principle underlying it had been sustained repeatedly.52

Interesting, too, is Hollis v. Kutz,53 in which was involved the validity of certain orders of the Public Utilities Commission of the District of Columbia, whereby the price of gas to private consumers was increased while the price to the government in the district remained at the previous rate. The contention of plaintiffs that this was unlawful discrimination, since they were forced to make up the loss incurred by furnishing the gas to the government and district at a loss, was answered by the strange assertion that the power of the government in the premises was absolute. "We do not wish," said Justice Holmes for the court, "to belittle the claim of a taker of what for the time has become a necessity to equal treatment while gas is furnished the public." But "the plaintiffs are under no legal obligation to take the gas, nor is the government bound to allow it to be furnished. If they choose to take it, the plaintiffs must submit to such enhancement of price, if any, as is assignable to the government's demands." This language is not very explicit, but the rather extraordinary holding it conveys is apparently to be explained by the original contract between the government and the gas company.

51 254 U.S.505.

52 Citing the Palmyra, 12 Wheat. 1; Distillery v. United States, 96 U. S. 395; United States v. Stowell, 133 U. S. 1; and other cases.

53 255 U.S. 452.

Another decision sustained the right of the commissioner of the District of Columbia to assess and collect rent from the users of space under the sidewalks and streets of the district, notwithstanding that the utilization had been authorized by permits issued in conformance with previous regulations.54 Such permits, the court pointed out, merely allowed what would otherwise have been a nuisance and in no wise abated the right and interest of the public. Yet another decision sustained the right of the territorial government of Alaska to levy a special license tax upon the manufacture of fish oil and fertilizer from herring.55 "If," said the court, "Alaska deems it for its welfare to discourage the destruction of herring for canning and to preserve them for food . and to that end imposes a greater tax

than upon the similar use of other fish it hardly can be said to be contravening a constitution that has known protective tariffs for a hundred years."

Lastly, United States v. Rogers56 interprets the "just compensation" clause of the Fifth Amendment to require, in certain cases at least, the allowance of interest between the time of a taking of property by the government and the final payment of the private owner.

XI. THE SIXTH AMENDMENT

The Sixth Amendment was involved in three decisions. In the group of cases headed by the United States v. Cohen Grocery Company,57 the court pronounced section 4 of the Lever Act void on the ground that, because of its indefiniteness, it did not permit one charged under it to be informed of the nature of the accusation against him and that for the same reason it virtually delegated legislative power to courts and juries to define offenses.58 Said Chief Justice White for the majority: 54 District of Columbia v. Andrews Paper Co., and accompanying cases, 256 U.S.

55 Alaska Fish Co. v. Smith, 255 U. S. 44.

b Ibid., 163. The decision in a series of cases headed by Winton v. Amos, reiterates familiar doctrine regarding the plenary authority of Congress "over the Indians and all their tribal relations" and its "full power to legislate concerning their tribal property," 255 U. S. 373. Similarly, Chase v. United States, 256 U. S. 1, sustained the right of Congress to change the mode of disposition of certain unallotted lands in the Omaha Indian Reservation.

57 255 U. S. 81. Of the accompanying cases the most important is Weeds, Inc. et al. v. United States, ibid., 109.

58 The relevant provisions of the section read thus: "That it is hereby made unlawful for any person wilfully. . . .to make any unjust or unreasonable rate or