EDWIN F. HALE, Appt., v.

WILLIAM HENKEL, United States Marshal.

(See S. C. Reporter’s ed. 43-89.)

Note. — On the privilege of witnesses — see notes to Cooper v. State, 4 L.R.A. 766; Rice v. Rice, 11 L.R.A. 591 ; and Re Buskett, 14 L.R.A. 407.

On the sufficiency of statutory immunity to satisfy the constitutional guaranty against self- 652

201 U. S,

Hale v. Henkel.

44-48

Const., 4th Amend., cannot ordinarily be In¬ voked to justify the refusal of an officer of a corporation to produce Its books and papers in obedience to a subpoena duces tecum, is¬ sued in aid of an investigation by a grand jury of an alleged violation of the antitrust act of July 2, 1890, by such corporation.

seizures. — A corporation charged with a violation of the antitrust act of July 2, 1890, is entitled to immunity under U. S. Const., 4th Amend., from such an unreasonable search and seizure as the compulsory pro¬ duction before a grand jury, under a sub¬ poena duces tecum, of all understandings, contracts, or correspondence between such corporation and six other companies, together with all reports and accounts rendered by such companies from the date of the organi¬ zation of the corporation, as well as all let¬ ters received by that corporation since its organization, from more than one dozen dif¬ ferent companies, situated in seven different states.

[No. 340.]

Argued January Jf, 5, 1906. Decided March 12, 1906.

APPEAL from the Circuit Court of the United States for the Southern District of New York to review an order discharging a writ of habeas corpus to inquire into a commitment for a contempt in refusing to testify before the grand jury and produce the papers and documents called for in a subpoena duces tecum, and remanding the pe¬ titioner to the custody of the marshal. Af¬ firmed.

See same ease below, 139 Fed. 496.

Statement by Mr. Justice Brown:

This was an appeal from a final order of the circuit court, made June 18, 1905, dis¬ missing a writ of habeas corpus, and re¬ manding the petitioner. Hale, to the custody of the marshal.

The proceeding originated in a subpoena duces tecum, issued April 28, 1905, com¬ manding Hale to appear before the grand jury at a time and place named, to “testify

and give evidence *in a certain action now pending ... in the circuit court of the United States for the southern district of New York, between the United States of America and the American Tobacco Com¬ pany and MacAndrews & Forbes Company, on the part of the United States, and that you bring with you and produce at the time and place aforesaid:”

rangements, or contracts, whether evidenced by correspondence, memoranda, formal agreements, or other writings, between MacAndrews & Forbes Company and six oth¬ er firms and corporations named, from the, 201 U. S.

date of the organization of the said Mac¬ Andrews & Forbes Company.

gram between MacAndrews & Forbes Com¬ pany and six other firms and corporations.

by these six companies or corporations to the principal company.

rangements, however evidenced, between Mac¬ Andrews & Forbes Company and the Amster¬ dam Supply Company or the American To¬ bacco Company or the Continental Company or the Consolidated Tobacco Company.

& Forbes Company since the date of its or¬ ganization from thirteen other companies named, located in different parts of the Unit¬ ed States, and also copies of all correspond¬ ence with such companies.

Petitioner appeared before the grand jury in obedience to the subpoena, and, before be¬ ing sworn, asked to be advised of the na¬ ture of the investigation in which he ■ had been summoned; whether under any statute of the United States, and the specific charge, if any had been made, in order that he might learn whether or not the grand jury had any lawful right to make the inquiry, and also that he be furnished with a copy of the complaint, information, or proposed indict¬ ment upon which they were acting; that he had been informed that there was no action pending in the circuit court, as stated in the subpcena, and that the grand jury was investigating no specific charge against *any

one, and he therefore declined to answer: First, because there was no legal warrant for his examination, and, second, because his answers might tend to incriminate him.

After stating his name, residence, and the fact that he was secretary and treasurer of the MacAndrews & Forbes Company, he de¬ clined to answer all other questions in re¬ gard to the business of the company, its officers, the location of its office, or its agreement or arrangements with other com¬ panies. He was thereupon advised by the assistant district attorney that this was a proceeding under the Sherman act to pro¬ tect trade and commerce against unlawful restraint and monopolies; that, under the act of 1903, amendatory thereof, no person could be prosecuted or subjected to any pen¬ alty or forfeiture on account of any matter or thing concerning which he might testify or produce documentary evidence in any prosecution under said act, and that he thereby offered and assured appellant im¬ munity from punishment. The witness still persisted in his refusal to answer all ques¬ tions.

He also declined to produce the papers and documents called for in the subpcena:

653

40

Oct. Term,

Supreme Court of the United States.

First. Because it would have been a phys¬ ical impossibility to have gotten them to¬ gether within the time allowed.

Second. Because he was advised by coun¬ sel that he was under no legal obligations to produce anything called for by the sub¬ poena.

Third. Because they might tend to in¬ criminate him.

Whereupon the grand jury reported the matter to the court, and made a presentment that Hale was in contempt, and that the proper proceedings should be taken. There¬ upon all the parties appeared before the circuit judge, who directed the witness to answer the questions and produce the pa¬ pers. Appellant still persisting in his re¬ fusal, the circuit judge held him to be in contempt, and committed him to the custody of the marshal until he should answer the questions and produce the papers. A writ of habeas corpus was thereupon sued out. and a hearing had before another judge of the same court, who discharged the writ and remanded the petitioner.

Mr. De Lancey Nicoll argued the cause, and, with Messrs. Junius Parker and John D. Lindsay, filed a brief for appellant:

Unless the grand jury, in prosecuting the investigation referred to, in its two reports to the court was acting within the scope of its jurisdiction, the court was without au¬ thority to punish the witness for his sup¬ posed contumacy in refusing to answer questions, and all of its acts and proceed¬ ings in the premises were without authority, and void.

People v. Cassels, 5 Hill, 164; Ex parte Fisk, 113' U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Cooley, Const. Lim. 7th ed. p. 575; Scott v. MoNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Counsel- man v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125; Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377 ; Re Lester, 77 Ga. 143; Hartranft’s Appeal, 85 Pa. 433, 27 Am. Rep. 667.

It is doubtless true that the grand jury will ordinarily be presumed to have followed the “usual” methods of procedure. But such presumption only arises in the absence of any averment or suggestions to the con¬ trary.

United States v. Terry, 39 Fed. 355.

Notwithstanding the language of the sub- pa?na, which commanded the petitioner to testify and produce papers and documents “in a certain action,” the requirement that the petitioner appear before the grand jury 654

necessarily shows that there was, in fact, no action pending, for there can be no ac¬ tion, ' or prosecution, or even a criminal proceeding, until after someone has been formally accused of acts constituting a crim¬ inal offense, by indictment duly returned by the grand jury, of, at least, by infor¬ mation lodged before a magistrate.

Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 Sup. Ct. Rep. 611.

An ex parte inquisitorial investigation, based upon mere suspicion or speculation, without any complaint or charge, and that may, and presumably would be, without re¬ sult, is not a “case” or “controversy” with¬ in the meaning of the Constitution; and no court has any power or right to lend its aid or assistance to such a matter.

Re Pacific R. Commission, 32 Fed. 241; Kilbourn v. Thompson, and Interstate Com¬ merce Commission v. Brimson, supra.

By the common law the vpowers of grand juries were restricted to the presentment to the court of accusations of two sorts; viz., indictments returned after the exam¬ ination of witnesses, and presentments made upon the knowledge or observation of the grand jurors themselves.

4 Bl. Com. chap. 2'3; 1 Chitty, PI. pp. 162, 316, 322; 2 Gude, Crown Practice, 583*; Archbold, Crim. Pr. & PI. 2d ed. 89, 90 : Davis, Precedents of Indictments, p. 219; Reg. v. Hughes, 1 Car. & K. 519; Wharton, Precedents of Indictments & Pleas, 1st ed. 328.

The powers and duties of grand juries, ingrafted into our system by the Constitu¬ tion, are only such as were possessed by grand juries at the common law; namely, of considering and acting upon indictments previously framed and laid before them by a known prosecutor, and of presenting facts within their own knowledge.

United States v. Mundel, 6 Call (Va.)

Except in the single state of Tennessee, where there is legislative authority for it in respect to certain classes of offenses, the theory of general inquisitorial power in a grand jury is absolutely repudiated.

Re Lester, supra; Lcxois v. Wake County, 74 N. C. 194; Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; Harrison v. State, 4 Coldw. 195; State v. Adams, 2 Lea, 647; State v. Lee, S7 Tenn. 114, 9 S. W. 425; Blaney v. State, 74 Md. 153, 21 Atl. 547; Frisbie v. United States, 157 U. S. 160, 39 L. ed. 657, 15 Sup. Ct. Rep. 586; People ex rel. Hockley v. Kelly, 24 N. Y. 74; People ex rel. Pickard v. Chautauqua Coun¬ ty, 11 N. Y. Civ. Proc. Rep. 172; O’Hair v. People, 32 Ill. App. 277 ; Webster’s Case, 5 Me. 432; Post v. United States, 161 U. S. 5S5, 587, 40 L. ed. 816, 817, 16 Sup. Ct.

201 U. S.

Hale v. Henkel.

Rep. 611; Beavers v. Henkel, 194 U. S. 73, 84, 48 L. ed. 882, 886, 24 Sup. Ct. Rep. 605.

In no case that can be found in the books, .where the point has been presented, directly or indirectly, has there been in¬ timation that a grand jury could prosecute an investigation in the absence of a specific charge of crime, directed against a partic¬ ular person or persons, except in certain Pennsylvania decisions, where the courts have held that, under the instructions of the court, attention of grand juries may be drawn to matters of general public im¬ port, such as “great riots that shake the social fabric, public pestilences,” etc.

Be Lloyd, 3 Clark (Pa.) 188; Re Memo¬ rial, S Phila. 478; Hartranft’s Appeal, su¬ pra; Com. v. Green, 126 Pa. 531, 12 Am. St. Rep. 894, 17 Atl. 878.

Even though a grand jury may send for witnesses before an indictment has been actually framed and laid before them, still, it is perfectly certain that there must at least be pending before them some specific charge directed against a particular person or persons.

Counselman v. Hitchcock, 142 U. S. 547, 561, 35 L. ed. 1110, 1113, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195; United States v. Kilpatrick, 4 Crim. L. Magf. 692, 16 Fed. 765; Re Morse, 42 Misc. 664, 87 N. Y. Supp. 721.

Our system of law does not contemplate any inquiry into the commission of crime except where someone is charged with it upon allegations showing the existence of facts which, if established by competent proof, constitute a violation of law.

Re Lloyd, supra.

Judicial power is that which adjudicates upon and protects the rights and interests of individual citizens, and to that end con¬ strues and applies the laws.

Cooley, Const. Lim. 132.

In Re Pacific R. Commission, supra, it was held, that the courts could not legiti¬ mately be made the instruments for further¬ ing an unwarranted legislative investigation.

See also Interstate Commerce Commission y. Brimson, 154 U. S. 447, 38 L. ed. 1047,

4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep.

‘ The theory of our criminal proceeding, like that of Great Britain, is accusatory, and not inquisitorial.

United States v. James, 26 L.R.A. 418,

5 Inters. Com. Rep. 578, 60 Fed. 257.

To suppose the powers of a grand jury, created, not by express statute, but by the necessity of their aiding the jurisdiction of a court, to transcend that jurisdiction, would be to consider grand juries, once convened, to be clothed with powers not 201 TJ. S.

conferred by law, but originating with them¬ selves. This has never been imagined.

United States v. Hill, 1 Brock. 159, Fed. Cas. No. 15,364.

The constitutional guaranty against be¬ ing forced to give incriminating testimony must have a broad construction in favor of the right which it was intended to se¬ cure.

Counselman v. Hitchcock, 142 U. S, 547, 562, 35 L. ed. 1110, 1113, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195.

A grand jury inquiry for the purpose of discovering whether or not the Sherman act has been violated is not a “proceeding, suit, or prosecution,” under that act.

Windt v. Banniza, 2 Wash. 147, 26 Pac. 189; Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 Sup. Ct. Rep. 611; Vir¬ ginia v. Paul, 148 U. S. 107, 37 L. ed. 386, 13 Sup. Ct. Rep. 536; State v. Wolcott, 21 Conn. 279.

The order of May 5th, requiring the ap¬ pellant to produce the papers called for by the subpoena duces tecum, was made in vio¬ lation of his rights and the rights of the MacAndrews & Forbes Co. under the 4th Amendment.

Boyd v. United States, 116 U. S. 616, 630, 29 L. ed. 746, 751, 6 Sup. Ct. Rep. 524; Re Lester, 77 Ga. 143; Hartranft’s Appeal, 85 Pa. 433, 27 Am. Rep. 667.

Whether a subpoena duces tecum for pa¬ pers or a search warrant for chattels be is¬ sued, the spirit of the Amendment demands that, while in the latter case there must be probable cause, supported by oath or allinnation, with a description of the place to be searched, etc., in the former it must be shown to the court or authority issuing the process that there is some proper cause pending, in relation to which the papers or documents called for are material evi¬ dence.

Re Lester and Hartranft’s Appeal, supra; Re Moser (Mich.) 11 Det. L. N. 593, 101 N. W. 588; Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426.

The process must, moreover, give a rea¬ sonably accurate description of the papers whose production is sought.

Ex parte Brown and Re Moser, supra; Sandford v. Kichols , 13 Mass. 286, 7 Am, Dec. 151.

So far from describing the papers whose production was sought with reasonable ac¬ curacy, the order in question lacked any specification whatever in that regard.

Ex parte Brown, supra.

A corporation cannot be compelled to furnish incriminating evidence against it¬ self, and it is entitled to the same immunity in this regard which the common law and ° 655

Oct. Term,

Supreme Court of the United States.

our Constitution accord to private individ- uals.

3 Wigmore, Ev. § 2259, p. 3116; Sicilies v. Wilcox, 7 State Tr. N. S. 1049, 1062; Logan v. Pennsylvania 11. Go. 132 Pa. 403, 19 Atl. 137; Davies v. Lincoln Nat. Bank, 16 N. Y. Civ. Proc. Rep. 68, 4 N. Y. Supp.

This court has repeatedly held that a corporation is a “person,” and protected by the 14th Amendment, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

Santa Clara County v. Southern P. R. Co. 118 U. S. 394, 30 L. ed. 118, 6 Sup. Ct. Rep. 1132; Pembina Consol. Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650, 2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep. 737.

Are our constitutional safeguards against self-incrimination more infirm than those furnished by the common law? In for¬ mer times it was thought a startling prop¬ osition that a corporation could be called upon to furnish evidence against one of its members. Here a corporation is sought to be compelled, by indirection, to furnish evidence against itself.

Rex v. Purnell, 1 Wils. 239.

Messrs. De Lancey Nicoll and John D. Lindsay also filed a separate brief for ap¬ pellant:

No judicial body can act or proceed in any manner in the absence of an allegation showing the existence of facts justifying its intervention.

Re Peck, 167 N. Y. 391, 53 L.R.A. 888, 60 N. E. 775; Re Davies, 168 N. Y. 89, 56 L.R.A. 855, 61 N. E. 118; People ex rel. Sandman v. Tuthill, 79 App. Div. 24, 79 N. Y. Supp. 905.

Federal grand juries are not bound to keep a record of the evidence taken before them, and are prohibited from disclosing their proceedings, and so are all other per¬ sons who have access to, or are permitted to participate in, those proceedings.

United States v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134.

Corporations enjoy the protection of the 4th and 5th Amendments.

Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 154, 41 L. ed. 667, 17 Sup. Ct. Rep. 255.

If corporations may suffer the judgment of death by dissolution (People v. North River Sugar Ref. Co. 121 N. Y. 582, 9 L.R.A. 33, 18 Am. St. Rep. 843, 24 N. E. 834 ; Northern Securities Co. v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 436), if they may be con¬ demned to forfeit the corporate property, if they may be indicted, convicted, and sentenced to pay a fine as individuals may, 056

— what excuse can be made for denying to them the beneficent protection of these Amendments T

A corporation is a citizen under the pro¬ vision of the Constitution which gives courts of the United States jurisdiction over con¬ troversies between citizens of different states.

Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 11 L. ed. 353; Marshall v. Balti¬ more & 0. R. Co. 16 How. 314, 325, 14 L. ed. 953, 958.

A corporation is a person within the meaning of penal statutes.

United States v. Amedy, 11 Wheat. 392, 412, 6 L. ed. 502, 507; Harrison’s Case, 2 East, P. C. 927.

A corporation is deemed to be a person within the usury statute.

Thornton v. Bank of Washington, 3 Pet. 36, 7 L. ed. 594.

A corporation was a person within the meaning of the Treaty of Peace (1783- 1794), and entitled to the protection of its property from forfeiture.

Society for Propagation of the Gospel v. New Haven, 8 Wheat. 464, 5 L. ed. 662.

The personal privilege of the witness may be one entity, the corporation’s priv¬ ilege may be another; but, unless the cor¬ poration can assert its privilege through its representative, how can it ever assert it at all?

State ex rel Atty. Gen. v. Simmons Hard¬ ware Co. 109 Mo. 118, 15 L.R.A. 676, 18 S. W. 1125.

Mr. Junius Parker also filed a separate brief for appellant.

Mr. Henry W. Taft argued the cause, and, with Mr. Felix H. Levy and Attorney General Moody, filed a brief for appellee:

At the date of the adoption of the 5th Amendment, and for fifty years thereafter, under the procedure sanctioned by usage and precedent, an American grand jury (1) could proceed in cases other than those in which a private prosecutor presented a duly engrossed indictment, and (2) on its own' motion, or at the instance of the court or the prosecuting attorney, could (and, necessarily, by an inquisitorial method) in¬ vestigate an alleged or suspected crime, and, after the investigation, direct an indict¬ ment to be drawn in accordance with the evidence.

2 Wilson’s Works, ed. 1896, p. 213; Re Grand Jury, Addison ( Pa. ) 38 Appx. ; Unit¬ ed States v. Mundel, 6 Call (Va.) 245; Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; Davis, Precedents of Indictments, pp. 2, 18, 28; State v. Freeman, 13 N. H. 488.

Up to this time there had not been in any court in this country a judicial ex¬ pression which attempted to limit the in-

201 U. S.

Hath; v. Henkel.

quisitorial powers of the grand jury, ex¬ cept in the case of State v. Smith, Meigs, 69, 33 Am. Dec. 132, decided in 1838, but the decision in that case is not significant or important, for the reason that certain early statutes of the state of Tennessee expressly limited the power of the grand jury. In 1845, however, in the case of Re Lloyd, 3 Clark (Pa.) 188, there appeared the first well-considered expression of any American court showing a tendency at va¬ riance with the view expressed by Judge Addison, in the same state, fifty-four years before.

The decisions of the Federal courts con¬ tinue to recognize broad inquisitorial powers in a grand jury.

Wharton, Crim. PI. & Pr. 8th ed. § 337 ; Re Charge, 2 Sawy. 667, Fed. Cas. No. 18,255; United States v. Kimball, 117 Fed. 156; Frisbie v. United States, 157 U. S. 160, 39 L. ed. 657, 15 Sup. Ct. Rep. 586; United States v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134; United States v. Terry, 39 Fed. 355. See also United States v. McAvoy, 18 How. Pr. 380.

State courts generally recognize this rule.

Webster’s Case, 5 Me. 432; State v. Terry, 30 Mo. 368; Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426; Com. v. Smyth, 11 Cush. 473; Price v. Com. 21 Gratt. 846; State v. Wolcott. 21 Conn. 272; State v. Magrath, 44 N. J. L. 227 ; Blaney v. State, 74 Md. 153, 21 Atl. 547; People v. Northey, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129; Thompson & M. Juries, § 615, subd. 2; Wharton, Crim. PI. & Pr. 8th ed. § 388.

Even in Pennsylvania, where some restric¬ tions not common in other jurisdictions have been imposed upon the powers of the grand jury acting on its own motion, their power to act at the instance of the district attorney is recognized.

McCullough v. Com. 67 Pa. 30; Rowand v. Com. 82 Pa. 405; Com. v. Green, 126 Pa. 531, 12 Am. St. Rep. 894, 17 Atl. 878.

Criminal prosecutions before a grand jury in England at the time of the establish¬ ment of the judicial system of the United States were almost always commenced by private prosecutors. But the courts of this country have never thought it wise policy to permit a private prosecutor to take any part, except as a witness, in setting the ma¬ chinery of the criminal law in motion.

Re Charge, supra.

Even in Pennsylvania, where, as early as 1705, the English practice was retained by statute to the extent of requiring that the name of the prosecutor should be placed upon the indictment, it was held, in 1769, that this statute did not apply where there was no real prosecutor, i. e., where 201 U. S.

the prosecution took its rise from the grand jury, or, we might add with equal reason, from the prosecuting attorney.

King v. Lukens, 1 Dali. 5, 1 L. ed. 13.

In its beginnings, the grand jury seems to have been devised as a convenient method to assist itinerant justices in England in de¬ tecting crime and punishing it. They seem clearly to have been expected to investigate, and originally they indicted frequently, on mere rumor.

2 Pollock & M. History of English Law, p. 639; 2 Bracton, De Corona, Twiss’s ed. chap. 22, folio 143, p. 451, folio 1166; 1 Reeves, History of English Law, p. 457 ;

2 Reeves, History of English Law, p. 293; Stephen, History of Crim. Law of England, p. 253; 1 Huband, Grand Jury in Crim. Cases in Ireland, p. 8 ; Britton, P. C. 22-26 ;

1 Stubb, Constitutional History of England, 661 et seq Stubb, Select Charters, p. 259; Taylor, Origin & Growth of English Con¬ stitution, p. 329; Macclesfield v. Starkey, 10 How. St. Tr. 1330.

If the claim of the appellant be conceded, that a charge is necessary, it must also follow that he has the right to object to the admissibility of evidence, on the ground that it is not competent under the charge. But there are abundant authorities in the Fed¬ eral courts to the effect (1) that the grant¬ ing of such a right would necessarily result in a violation of the secrecy of the proceed¬ ings of the grand jury, and (2) that a witness has no right to question the regular¬ ity of the proceedings of a grand jury.

United States v. Brown, 1 Sawy. 533, Fed. Cas. 14,671; McGregor v. United States, 134 Fed. 187 ; United States v. Cobban, 127 Fed. 713; United States v. Farrington, 5 Fed. 343 ; United States v. Terry and United States v. Reed, supra; United States v. Ambrose, 3 Fed. 283.

If a charge more specific than that which may be fairly inferred from the state¬ ment of the district attorney be necessary, the court will presume that it was made. In other words, the court will presume that both the grand jury and the district attor¬ ney proceeded in accordance with their sworn duties and in accordance with law.

United States v. Terry, supra; United States v. Hunter, 15 Fed. / 1 4 ; United States v. Reed and United States v. McAvoy, su¬ pra.

The attitude of the witness showed that he regarded the evidence called for as ma¬ terial, for he objected on the ground that it would incriminate him. He could not interpose that objection capriciously; to make it available, the possibility of crimi¬ nation must have appeared from the circum¬ stances.

United States v. Burr, Fed. Cas. No.

657

Supreme Court or the United States.

Oct. Term,

14,692e; United States v. McCarthy, 21 Blatchf. 469, 18 Fed. 87; Ex parte Irvine, 74 Fed. 964; Wigmore, Ev. § 2271.

It is doubtful whether, except in a most extreme case, a witness has any right at all to raise such objections as those raised here, and certainly not unless it clearly appears that his constitutional rights are in danger. A witness before a grand jury has no right to inquire whether that body is properly constituted and a lawful body.

Ex parte Eaymond, 91 Cal. 545, 27 Pac.

The scope of the powers of a grand jury is limited by the jurisdiction of the court of which it is an appendage.

United States v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364.

It is also subject to the direction of the court, and cannot effectually exercise some of its most important functions without the interposition of the court. It must resort to the court to enforce, by subpoena, the attendance of witnesses, and it is only through the order of the court that witnesses may be punished for contumacy. Com. v. Bannon, 97 Mass. 214; Heard v. Pierce, 8 Cush. 338, 54 Am. Dec. 757.

The court may inquire whether the grand jury has exceeded its powers ( People v. Naughton, 7 Abb. Pr. N. S. 421; Denning v. State, 22 Ark. 131), and may punish the entire jury or any of its members ( Turk v. State, 7 Ohio, pt. 2, p. 240; State v. Cowan, 1 Head, 280; Re Ellis, Hempst. 10).

Whether a cause or action under the title mentioned in the subpoena was pending is unimportant. The proceeding might have proceeded without a title.

United States v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134.

It is quite clear from the historical origin of the 4th Amendment that it was not in¬ tended to limit the power of the judiciary when it was proceeding in the ordinary way through the writ of subpoena duces tecum to compel the production, upon a trial in court, of documentary evidence. That writ had existed from time immemo¬ rial in England, — long before general execu¬ tive warrants came into use. Without such a writ it would be utterly impossible to carry on the administration of justice (Summers v. Moseley, 2 Cromp. & M. 477; Wertheim v. Continental R. & Trust Co. 21 Blatchf. 246, 15 Fed. 718, and note; Amey y. Long, 9 East, 473 ) ; but its purpose and effect is totally different from a search warrant and other writs of that kind.

The 4th Amendment aimed at the seizure of papers or other tangible property by officers of the law in such manner that the owner was deprived not only of his posses- 658

sion and control of them, but arto of his right, when they were produced as evidence, to assert his privilege in order to avoid their incriminating effect.

Adams v. Hew York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372.

It is difficult to see how, under any cir¬ cumstances, a compulsory production of papers under a subpoena duces tecum can be held to be an unreasonable search and seizure, particularly where the papers can¬ not be used to incriminate the witness.

Interstate Commerce Commission v. Baird, 194 U. S. 25, 48 L. ed. 850, 24 Sup. Ct. Rep. 563; Re Moser (Mich.) 11 Det. L. N. 593, 101 N. W. 591; 1 Greenl. Ev. 16th ed. § 4C0a.

Unreasonableness, under the 4th Amend¬ ment, cannot be predicated upon either the indetiniteness of the description of the books and papers called for in the subpeena, or upon the volurpe of evidence and the in¬ convenience in producing it.

Reg. v. Gurney, 11 Cox, C. C. 414; United States v. Babcock, 3 Dill. 567, Fed. Cas. No. 14,484; Re Storror, 63 Fed. 564; Wig- more, Ev. § 2193 ; United States v. Tilderu, 10 Ben. 566, Fed. Cas. No. 16,522; Mitch¬ ell’s Case, 12 Abb. Pr. 249.

The petitioner was bound to produce the documents called for by the subpoena. What¬ ever his cause, his failure to do so consti¬ tutes contempt.

Doe ex dem. Butt v. Kelly, 4 Dowl. 273 ; Reg. y. Russell, 7 Dowl. 693; Amey v. Long, 9 East, 483; Holtz v. Schmidt, 2 Jones & S. 28; Bull v. Loveland, 10 Pick. 9; Chap¬ lain y. Briscoe , 5 Smedes & M. 198; Corsen v. Dubois, 1 Holt, N. P. 239 ; Field v. Beaumont, 1 Swanst. 209; Mitchell’s Case, supra; Doe ex dem. Loscombe v. Clifford, 2 Car. & K. 448 ; O’Toole’s Estate, 1 Tucker,

39. See also Wigmore, Ev. § 2200, p. 2979.

Every person subject to the jurisdiction of a competent and lawful tribunal is bound to give testimony. This is a solemn and important duty that every citizen owes to his country (Ward v. State, 2 Mo. 120, 22 Am. Dee. 449). He is privileged to de¬ cline only in case his answers may tend to criminate him. Our system of_ jurispru¬ dence does not permit a witness to refuse to answer because he prefers not to, or even because his answer will tend to degrade him, except, only, where degrading testi¬ mony is interposed solely to affect his credi¬ bility.

1 Greenl. Ev. §§ 454, 455.

Where the reason of the privilege ceases, the privilege also ceases.

Broom, Legal Maxims, p. 654 ; fSrown v. Walker, 161 U. S. 597-599, 40 L. ed. 821, 822, 5 Inters. Com. Rep. 309, 16 Sup. Ct. | Rep. 644.

•201 U. S.

Hale v. Henkel.

68-60

The proceeding before the grand jury was a “proceeding, suit, or prosecution” within the meaning of the immunity provision.

United States v. Moore, 11 Fed. 248; United States v. Craft, 43 Fed. 374; Hogan v. State, 30 Wis. 428, 11 Am. Rep. 575; Bruner v. Superior Court, 92 Cal. 248, 28 Pac. 341; Re Tillery, 43 Kan. 192, 23 Pac. 162; Yates v. The Queen, L. R. 14 Q. B. Div. 648; Drumrn v. Cessnum, 61 Kan. 467, 59 Pac. 1078.

The grand jury was always regarded as an accusing body.

Re Charge, 2 Sawy. 668, Fed. Cas. No. 18,255 ; 17 Ain. & Eng. Enc. Law, 2d ed. p. 1266 ; State v. Branch, 68 N. C. 186, 12 Am. Rep. 633.

Except as evidence in defense may be in¬ cident to or involved in accusing evidence, a grand jury generally has no right to seek for or receive evidence in defense.

Respublica v. Shaffer, 1 Dali. 236, 1 L. ed. 116; United States v. Laiorence, 4 Cranch, C. C. 514, Fed. Cas. No. 15,576; Wharton, Crim. PI. & Pr. 8th ed. § 360.

Mr. Justice Brown delivered the opin¬ ion of the court:

Two issues are presented by the record in this case, which are so far distinct as to require separate consideration. They de¬ pend upon the applicability of different pro¬ visions of the Constitution, and, in determin¬ ing the question of affirmance or reversal, should not be confounded. The first of these involves the immunity of the witness from oral examination; the second, the legality of his action in refusing to produce the docu¬ ments called for by the sv,bpoena duces te¬ cum.

159] fusing to answer the ‘questions propounded to him, 1st, upon the ground that there was no specific “charge” pending before the grand jury against any particular person; 2d, that the answers would tend to criminate him.

The first objection requires a definition of the word “charge” as used in this connec¬ tion, which it is not easy to furnish. An accused person is usually charged with crime by a complaint made before a committing magistrate, which has fully performed its office when the party is committed or held to bail, and is quite unnecessary to the finding of an indictment by a grand jury; or by an information of the district at¬ torney, which is of no legal value in pros¬ ecutions for felony; or by a presentment, usually made, as in this case, for an offense committed in the presence of the jury; or by an indictment which, as often as not, is drawn after the grand jury has acted upon 201 U. S.

the testimony. If another kind of charge be contemplated, when and by whom must it be preferred ? Must it be in writing, and if so, in what form? Or may it be oral?

The suggestion of the witness, that he should be furnished with a copy of such charge, if applicable to him, is applicable to other witnesses summoned before the grand jury. Indeed, it is a novelty in criminal procedure with which we are whol¬ ly unacquainted, and one which might in¬ volve a betrayal of the secrets of the grand jury room.

Under the ancient English system, crimi¬ nal prosecutions were instituted at the suit of private prosecutors, to which the King lent his name in the interest of the public peace and good order of society. In such cases the usual practice was to prepare the proposed indictment and lay it before the grand jury for their consideration. There was much propriety in this, as the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testi¬ mony or was dictated by malice or personal ill-will.

We are pointed to no case, however, hold¬ ing that a grand jury ‘cannot proceed with-

out the formality of a written charge. In¬ deed, the oath administered to the foreman, which has come down to us from the most ancient times, and is found • in Shaftes¬ bury’s Trial, 8 How. St. Tr. 769, indicates that the grand jury was competent to act solely on its own volition. This oath was that “you shall diligently inquire and true presentments make of all such matters, ar¬ ticles, and things as shall be given you in charge, as of all other matters, and things as shall come to your own knowledge touching this present service,” etc. This oath has re¬ mained substantially unchanged to the presr ent day. There was a difference, too, in the nomenclature of the two cases of accu¬ sations by private persons and upon their own knowledge. In the former case their action was embodied in an indictnient for¬ mally laid before them for their considera¬ tion; in the latter case, in the form of a presentment. Says Blackstone in his Com¬ mentaries, bk. 4, p. 301 :

“A presentment, properly speaking, is the notice taken by a grand jury of any of¬ fense from their own knowledge or observa¬ tion, without any bill of indictment laid be¬ fore them at the suit of the King, as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, be¬ fore the' party presented can be put to an¬ swer it.”

659

60-63

Supreme Court of the United States.

Oct. Term,

Substantially the same language is used in 1 Chitty, Crim. Law, 162.

In United States v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364, it was indicated by Chief Justice Marshall that a presentment and indictment are to be considered as one act, the second to be considered only as an amendment to the first, and that the usage of this country has been to pass over, un¬ noticed, presentments on which the attorney does not think it proper to institute pro¬ ceedings.

In a case arising in Tennessee the grand jury without the agency of the district at¬ torney, had called witnesses before them, whom they interrogated as to their knowl¬ edge concerning the then late Cuban expe¬ dition. Mr. Justice Catron sustained the legality of the proceeding and compelled the

witnesses *to answer. His opinion is reported in Wharton’s Criminal Pleading & Practice, 8th ed. § 337. He says: “The grand jury have the undoubted right to send for wit¬ nesses and have them sworn to give evidence generally, and to found presentments on the evidence of such witnesses; and the question here is whether a witness thus introduced is legally bound to disclose whether a crime has been committed, and also who committed the crime.” His charge contains a thorough discussion of the whole subject.

While presentments have largely fallen ir- to disuse in this country, the practice of grand juries acting upon notice, either of their own knowledge or upon information obtained by them, and incorporating their findings in an indictment, still largely ob¬ tains. Whatever doubts there may be with regard to the early English procedure, the practice in this country, under the system of public prosecutions carried on by officers of the state appointed for that purpose, has been entirely settled since the adoption of the Constitution. In a lecture delivered by Mr. Justice Wilson of this court, who may be assumed to have known the current prac¬ tice, before the students of the University of Pennsylvania, he says (Wilson’s Works, vol. 2, p. 213) :

“It has been alleged that grand juries are confined, in their inquiries, to the bills offered to them, to the crimes given them in charge, and to the evidence brought before them by the prosecutor. But these concep¬ tions are much too contracted ; they pre¬ sent but a very imperfect and unsatisfactory view of the duty required from grand jurors, and of the trust reposed in them. They are not appointed for the prosecutor or for the court; they are appointed for the government and for the people; and of both the govern¬ ment and people it is surely the concern¬ ment that, on one hand, all crimes, whether given or not given in charge, whether de- 660

scribed or not described with professional skill, should receive the punishment which the law denounces ; and that, on the other hand, innocence, however strongly assailed by accusations drawn up in regular form, and *by accusers, marshaled in legal array,

should, on full investigation, be secure in that protection which the law engages that she shall enjoy inviolate.

“The oath of a grand juryman — and his oath is the commission under which he acts — assigns no limits, except those marked by diligence itself, to the course of his in¬ quiries: Why, then, should it be circum¬ scribed by more contracted boundaries?

Shall diligent inquiry be enjoined? And shall the means and opportunities of in¬ quiry be prohibited or restrained?”

Similar language was used by Judge Addi¬ son, president of the court of common pleas, in charging the grand jury at the session of the common pleas court, in 1791:

“If the grand jury, of their own knowl¬ edge, or the knowledge of any of them, or from the examination of witnesses, know of any offense committed in the county, for which no indictment is preferred to them, it is their duty either to inform the officer who prosecutes for the state, of the nature of the offense, and desire that an indictment for it be laid before them, or, if they do not, or, if no such indictment be given them, it is their duty to give such information of it to the court; stating, without any particu¬ lar form, the facts and circumstances which constitute the offense. This is called a pre¬ sentment.”

The practice, then, prevailing, with regard to the duty of grand juries, shows that a presentment may be based, not only upon their own personal knowledge, but from the examination of witnesses.

While no case has arisen in this court in which the question has been distinctly pre¬ sented, the authorities in the state courts largely preponderate in favor of the theory that the grand jury may act upon informa¬ tion received by them from tbe examination of witnesses without a formal indictment, or other charge previously laid before them.

An analysis of cases approving of this meth¬ od of procedure would unduly burden this opinion, but the following are the leading ones upon the subject: Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; State v. Terry,

30 Mo. 368; Ex * parte Brown, 72 Mo. 83, 37

Am. Rep. 426; Com. v. Smyth, 11 Cush. 473;

State v. Wolcott, 21 Conn. 272-280; State v. Magrath, 44 N. J. L. 227 ; Thompson &

M. Juries, §§ 615—617. In Blaney v. State,

74 Md. 153, 21 Atl. 547, the court said;

“However restricted the functions of grand juries may be elsewhere, we hold in this state they have plenary inquisitorial

201 U. S.

Hale v. Henkel.

63-65

powers, and may lawfully themselves, and upon their own motion, originate charges against offenders, though no preliminary proceedings have been had before a magis¬ trate, and though neither the court nor the state’s attorney has laid the matter before them.”

The rulings of the inferior Federal courts are to the same effect. Mr. Justice Field, in charging a grand jury in California (2 Sawy. 667, Fed. Cas. No. 18,255), said of the grand jury acting upon their own knowl¬ edge:

“Not by rumors and reports, but by knowl¬ edge acquired from the' evidence before you, and from your own observations. Whilst you are inquiring as to one offense, another and a different offense may be proved, or witnesses before you may, in testifying, com¬ mit the crime of perjury.”

Similar language was used in United States v. Kimball, 117 Fed. 156-161; United States v. Reed, 2 Blatchf. 449, Fed. Cas. No. 16,134; United States v. Terry, 39 Fed.

U. S. 160, 39 L. ed. 657, 15 Sup. Ct. Rep. 586, it is said by Mr. Justice Brewer:

“But in this country it ... is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evi¬ dence is sufficient to justify putting the party suspected on trial, to direct the prep¬ aration of the formal charge or indictment.”

There are doubtless a few cases in the state courts which take a contrary view, but they are generally such as deal with the abuses of the system, as the indiscriminate summoning of witnesses with no definite ob¬ ject in view, and in a spirit of meddlesome inquiry. In the most pertinent of these cases {Re Lester, 77 Ga. 143), the mayor

of Savannah, who was also ex *officio the presiding judge of a court of record, was called upon to bring into the superior court the “Information Docket” of his court, to be used as evidence by the state in certain cases pending before the grand jury. It was held “that the powers of the body are inquisi¬ torial to a certain extent is undeniable; yet they have to be exercised within well-defined limits. . . . The grand jury can find no

bill nor make any presentment except upon the testimony of witnesses sworn in a par¬ ticular case, where the party is charged with a specified offense.”

This case is readily distinguishable from the one under consideration, in the fact that the subpoena ifi this case did specify the action as one between the United States and the American Tobacco Company and the MacAndrews-Forbes Company ; and that the Georgia Penal Code prescribed a form of oath for the grand jury, “that the evidence 201 U. S.

you shall give the grand jury on this bill of indictment (or presentment, as the case may be, here state the case) shall be the truth,” etc. This seems to confine the witness to a charge already laid before the jury.

In Lewis v. Walce County, 74 N. C. 194, the English practice, which requires a prelimi¬ nary investigation where the accused can confront the accuser and witnesses with tes¬ timony, was adopted as more consonant to principles of justice and personal liberty.

It was further said that none but witnesses have any business before the grand jury, and that the solicitor may not be present, even to examine them. The practice in this par¬ ticular in the Federal courts has been quite the contrary.

Other cases lay down the principle that it must be made to appear to the grand jury that there is reason to believe that a crime has been committed, and that they have not the power to institute or prosecute an inquiry on the chance that some crime may be discovered. Re Morse, 18 N. Y, Crirn. Rep. 312, 87 N. Y. Supp. 721 ; State v. Adams, 2 Lea, 647, an unimportant case, turning upon a local statute. In Pennsyl¬ vania, grand, juries are somewhat more re¬ stricted in their powers than is usual in other states (McCullough v. Com. 67 Pa.

30; *Rowand v. Com. 82 Pa. 405; Com. v.

Green, 126 Pa. 531, 12 Am. St. Rep. 894,

17 Atl. 878), and in Tennessee inquisitorial powers are granted in certain cases and withheld in others (State v. Adams, supra ; State v. Smith, Meigs, 99, 33 Am. Dec. 132).

We deem it entirely clear that under the practice in this country, at least, the ex¬ amination of witnesses need not be preceded by a presentment or indictment formally drawn up, but that the grand jury may pro¬ ceed, either upon their own knowledge or upon the examination of witnesses, to in¬ quire for themselves whether a crime cog¬ nizable by the court has been committed; that the result of their investigations may be subsequently embodied in an indictment, and that, in summoning witnesses, it is quite sufficient to apprise them of the names of the parties with respect to whom they will be called to testify, without indicating the nature of the charge against them. So valuable is this inquisitorial power of the grand jury that, in states where felonies may be prosecuted by information as well as indictment, the power is ordinarily re¬ served to courts of impaneling grand juries for the investigation of riots, frauds, and nuisances, and other cases where it is im¬ practicable to ascertain in advance the names of the persons implicated. It is im¬ possible to conceive that in such cases the examination of witnesses must be stopped

661

65-67

Supreme Court of tiie United States.

Oct. Term,

until a basis is laid by an indictment for¬ mally preferred, when the very object of the examination is to ascertain who shall be in¬ dicted. As criminal prosecutions are in¬ stituted by the state through an officer se¬ lected for that purpose, he is vested with a certain discretion with respect to the cases he will call to their attention, the number and character of the witnesses, the form in which the indictment shall be drawn, and other details of the proceedings. Doubtless abuses of this power may be imagined, as if the object of the inquiry were merely to pry into the details of domestic or business life. But were such abuses called to the at¬ tention of the court, it would doubtless be alert to repress them. While the grand jury may not indict upon current rumors or un¬ verified reports, they may act upon knowl¬ edge acquired either from their own ob-

servations *or upon the evidence of wit¬ nesses, given before them.

the 5th Amendment to the Constitution, which declares that no person “shall be com¬ pelled in any criminal case to be a witness against himself,” and in reply to various questions put to him he declined to answer, on the ground that he would thereby in¬ criminate himself.

The answer to this is found in a proviso to the general appropriation act of February 25, 1903 (32 Stat. at L. 854-904, chap. 755, U. S. Comp. Stat. Supp. 1905, p. 602), that “no person shall be prosecuted or be sub¬ jected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit, or prosecution under said acts,” of which the antitrust law is one, pro¬ viding, however, that “no person so testi¬ fying shall be exempt from prosecution or punishment for perjury committed in so testifying.”

While there may be some doubt whether the examination of witnesses before a grand jury is a suit or prosecution, we have no doubt that it is a “proceeding” within the meaning of this proviso. The word should receive as wide a construction as is neces¬ sary to protect the witness in his disclosures, whenever such disclosures are made in pur¬ suance of a judicial inquiry, whether such inquiry be instituted by a grand jury, or upon the trial of an indictment found by them. The word “proceeding” is not a tech¬ nical one, and is aptly used by the courts to designate an inquiry before a grand jury. It has received this interpretation in a number of cases. Yates v. Queen, L. R. 14 Q. B. Div. 648; Hogan v. State, 30 Wis. 428, 11 Am. Rfep. 575.

The object of the amendment is to estab-

662

lish in express language and upon a firm basis the general principle of English and American jurisprudence, that no one shall be compelled to give testimony which may expose him to prosecution for crime. It is not declared that he may not be compelled to testify to facts which’ may impair his rep¬ utation for probity, or even tend to disgrace him; but the line is drawn at testimony that may expose *him to prosecution. If the

testimony relate to criminal acts long since past, and against the prosecution of which the statute of limitations has run, or for which he has already received a pardon or is guaranteed an immunity, the amendment does not apply.

The interdiction of the 5th Amendment operates only where a witness is asked to incriminate himself, — in other words, to give testimony which may possibly expose him to a criminal charge. But if the crim¬ inality has already been t^ken away, the amendment ceases to apply. The criminality provided against is a present, not a past, criminality, which lingers only.as a memory, and involves no present danger of prosecu¬ tion. To put an extreme case, a man in his boyhood or youth may have committed acts which the law pronounces criminal; but it would never be asserted that he would there¬ by be made a criminal for life. It is here that the law steps in and says that if the offense be outlawed or pardoned, or its crimi¬ nality has been removed by statute, the amendment ceases to apply. ' The extent of this immunity was fully considered by this court in Counselman v. Hitchcock, 142 U. S.

547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816,

12 Sup. Ct. Rep. 195, in which the 'immunity offered by Rev. Stat. § 860 (U. S. Comp.

Stat. 1901, p. 661), was declared to be in¬ sufficient. In consequence of this decision an act was passed applicable to testimony before the Interstate Commerce Commission in almost the exact language of the act of February 25, 1903, above quoted. This act was declared by this court in Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644, to afford absolute immunity against prose¬ cution for the offense to which the question related, and deprived the witness of his con¬ stitutional right to refuse to answer. In¬ deed, the act was passed apparently to meet the declaration in Counselman v. Hitchcock (586, L. ed. 1122, Inters. Com. Rep. 828,

Sup. Ct. Rep. 206), that “a statutory en¬ actment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.” If the constitutional amendment were unaf¬ fected by the immunity statute, it would put it within the power of the witness to be his own judge as to what would tend to incrimi-

201 U. S.

Hale v. Henkel.

67-70

nate him, and would justify him in refusing

to answer almost *any question in a criminal case, unless it clearly appears that the im¬ munity was not set up in good faith.

We need not restate the reasons given in Brown v. 'Walker, both in the opinion of the court, and in the dissenting opinion, wherein all the prior authorities were reviewed, and a conclusion reached by a majority of the court, which fully covers the case under con¬ sideration.

The suggestion that a person who has tes¬ tified compulsorily before a grand jury may not be able, if subsequently indicted for some matter concerning which he testified, to procure the evidence necessary to maintain liis plea, is more fanciful than real. He would have not only his own oath in support of his immunity, but the notes often, though not always, taken of the testimony before the grand jury, as well as the testimony of the prosecuting officer, and of every mem¬ ber of the jury present. It is scarcely pos¬ sible that all of them would have forgotten the general nature of his incriminating tes¬ timony or that any serious conflict would arise therefrom. In any event, it is a ques¬ tion relating to the weight of the testimony, which could scarcely be considered in deter¬ mining the effect of the immunity statute. The difficulty of maintaining a case upon the available evidence is a danger which the law does not recognize. In prosecuting a case, or in setting up a defense, the law takes no account of the practical difficulty which either party may have in procuring his tes¬ timony. It judges of the law by the facts which each party claims, and not by what he may ultimately establish.

The further suggestion that the statute offers no immunity from prosecution in the state courts was also fully considered in Brown v. Walker, and held to be no answer. The converse of this was also decided in Jack v. Kansas, 199 U. S. 372, ante, 234, 26 Sup. Ct. Rep. 73,— namely, that the fact that an immunity granted to a witness under a state statute would not prevent a prosecu¬ tion of such witness for a violation of a Federal statute did not invalidate such statute under the 14 th Amendment. It was held both by this court and by the

supreme court of Kansas that the pos sibility that information given by the witness might be used under the Federal act did not operate as a reason for permit¬ ting the witness to refuse to answer, and that a danger so unsubstantial and remote did not impair the legal immunity. . Indeed, if the argument were a sound one it might be carried still further and held to apply not onlv to state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws of other states to which the 201 U. S.

witness might have subjected himself. The question has been fully considered in Eng¬ land, and the conclusion reached that the only danger to be considered is one arising within the same jurisdiction and under the same sovereignty. Queen v. Boyes, 1 Best & S. 311; King of Sicilies v. Willcox,

7 St. Tr. N. S. 1049, 1068; State v. March, 46 N. C. (1 Jones, L.) 526; State v. Thomas, 98 N. C. 599, 2 Am. St. Rep.

351, 4 S. E. 518. The entire question of immunity is also exhaustively treated in Wigmore on Evidence, §§ 2255-2259.

The case of United States v. Saline Bank,

1 Pet. 100, 7 L. ed. 69, is not in conflict with this. That was a bill for discovery, filed by the United States against the cashier of the Saline Bank, in the district court of the Vir¬ ginia district, who pleaded that the emission of certain unlawful bills took place within the state of Virginia, by the law whereof penalties were inflicted for such emissions.

It was held that defendants were not bound to answer and subject them to those penal¬ ties. It is sufficient to say that the prosecu¬ tion was under a state law which imposed the penalty, and that the Federal court was simply administering the state law, and no question arose as to a prosecution under an¬ other jurisdiction.

But it is further insisted that, while the immunity statute may protect individual witnesses, it would not protect the corpora¬ tion of which, appellant was the agent and representative. This is true, but the answer is that it was not designed to do so. The right of a person under the 5th Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be in¬ criminated by his testimony, even ‘though he

were the agent of such person. A privilege so extensive might be used to put a stop to the examination of every witness who was called upon to testify before the grand jury with regard to the doings or business of his principal, whether such principal were an in¬ dividual or a corporation. The question whether a corporation is a “person” within the meaning of this amendment really does not arise, except, perhaps, where a corpora¬ tion is called upon to answer a bill of dis¬ covery, since it can only be heard by oral evidence in the person of some one of its a- gents or employees. The amendment is lim¬ ited to a person who shall be compelled in any criminal case to be a witness against himself ; and if he cannot set up the privi¬ lege of a third person, he certainly cannot set up the privilege of a corporation. As the combination or conspiracies provided against by the Sherman antitrust act can ordinarily be proved only by the testimony

663

70-72

Supreme Court of the United States.

Oct. Term

of parties thereto, in the person of their a- gents or employees, the privilege claimed would practically nullify the whole act of Congress. Of what use would it be for the legislature to declare these combinations un¬ lawful if the judicial power may close the door of access to every available source of information upon the subject? Indeed, so strict is the rule that the privilege is a per¬ sonal one that it has been held in some cases that counsel will not be allowed to make the objection. We hold that the questions should have been answered.

the nonproduction by the witness of the books and papers called for by the subpoena duces tecum. The witness put his refusal on the ground, first, that it was impossible for him to collect them within the time allowed ; second, because he was advised by counsel that, under the circumstances, he was under no obligation to produce them; and finally, because they might tend to incriminate him.

Had the witness relied solely upon the first ground, doubtless the court would have given him the necessary time. The last ground we have already held untenable. While the second ground does not set forth

with technical accuracy the real reason *for declining to produce them, the witness could not be expected to speak with legal exact¬ ness, and we think is entitled to assert that the subpoena was an infringement upon the 4th Amendment to the Constitution, which declares that “the right of the peo¬ ple to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon prob¬ able cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The construction of this amendment was exhaustively considered in the case of Boycl v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, which was an in¬ formation in rem against certain cases of plate glass, alleged to have been imported in fraud of the revenue acts. On the trial it became important to show the quantity and value of the glass contained in a number of cases previously imported ; and the district judge, under § 5 of the act of June 22, 1874, [18 Stat. at L. 187, chap. 391, U. S. Comp. Stat. 1901, p. 2018], directed a notice to be given to the claimants, requiring them to produce the invoice of these cases under pen¬ alty that the allegations respecting their contents should be taken as confessed. We held (page 622, L. ed. p. 748, Sup. Ct. Rep. p. 528) “that a compulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his proper- 664

ty, is within the scope of the 4th Amend¬ ment to the Constitution, in all cases in which a search and seizure would be,” and that the order in question was an unrea¬ sonable search and seizure within that amendment.

The history of this provision of the Consti¬ tution and its connection with the former practice of general warrants, or writs of as¬ sistance, was given at great length, and the conclusion reached that the compulsory extortion of a man’s own testimony, or of his private papers, to connect him with a crime of a forfeiture of his goods, is illegal ( p. 634, L. ed. p. 752, Sup. Ct. Rep. p. 534),

“is compelling a man to be a witness against himself, within the meaning of the 5th Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the 4th Amendment.

■"Subsequent cases treat the 4th and 5th

Amendments as quite distinct, having dif¬ ferent histories, and performing separate functions. Thus, in the case of Interstate Commerce Commission v. Brimson. 154 U. S.

447, '38 L. ed. 1047, 4 Inters. Com. Rep. 545,

14 Sup. Ct. Rep. 1125, the constitutionality of the interstate commerce act, so far as it authorized the circuit courts to use their processes in aid of inquiries before the Com¬ mission, was sustained, the court observing in that connection:

“It was clearly competent for Congress, to that end, to invest the Commission with authority to require the attendance and tes¬ timony of witnesses, and the production of books, papers, tariff's, contracts, agreements, and documents relating to any matter le¬ gally committed to that body for investi¬ gation. We do not understand that any of these propositions are disputed in this case.”

The case of Adams v. Neic York, 192 U. S.

585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372, which was a writ of error to the supreme court of the state of New York, involving the seizure of certain gambling parapher¬ nalia, was treated as involving the construc¬ tion of the 4th and 5th Amendments to the Federal Constitution. It was held, in sub¬ stance, that the fact that papers pertinent to the issue may have been illegally taken from the possession of the party against Whom they are offered was not a valid ob¬ jection to their admissibility; that the ad¬ mission as evidence in a criminal trial of papers found in the execution of a valid search warrant prior to the indictment was not an infringement of the 5th Amendment, and that, by the introduction of such evi¬ dence, defendant was not compelled to in¬ criminate himself. The substance of the opinion is contained in the following para¬ graph. It was contended that: “If a search

201 TJ. S,

Hale v. Henkel.

72-75

warrant is issued for stolen property, and 1 burglars’ tools be discovered and seized, | they are to be excluded from testimony by force of these amendments. We think they were never intended to have that effect, but are rather designed to protect against com- | pulsory testimony from a defendant against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen or the unwarranted seizure of his papers and

property, and to *render invalid legislation or judicial procedure having such effect.”

The Boyd Case must also be read in con¬ nection with the still later case of Interstate Commerce Commission v. Baird , 194 U. S. 25, 4S L. ed. 860, 24 Sup. Ct. Rep. 563, which arose upon the petition of the Commission for orders requiring the testimony of wit¬ nesses and the production of certain books, papers, and documents. The case grew out of a complaint against certain railway com- p"nies that they charged unreasonable and unjust rates for the transportation of an¬ thracite coal. Objection was made to the production of certain contracts between these companies upon the ground that it would compel the witnesses to furnish evi¬ dence against themselves in violation of the 5th Amendment, and would also subject the parties to unreasonable searches and seiz¬ ures. It was held that the circuit, court erred in holding the contracts to be irrele¬ vant, and in refusing to order their pro¬ duction as evidence by the witnesses who wrere parties to the appeal. In delivering the opinion of the court the Boyd Case was again considered in connection with the 4th and 5th Amendments, and the remark made by Mr. Justice Day that the immunity statute of 1893 “protects the witness from such use of the testimony given as will re¬ sult in his punishment for crime or the for¬ feiture of his estate.”

Having already held that, by reason of the immunity act of 1903, the witness could not avail himself of the 5th Amendment it fol¬ lows that he cannot set up that amendment as against the production of the books and papers, since, in respect to these, he would also be protected by the immunity act. We think it quite clear that the search and sei¬ zure clause of the 4th Amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence. As remarked in Summers j. Moseley, 2 Cromp. & M. 477, it would be “utterly impossible to carry on the administration of justice” without this writ. The following authorities are conclusive ur»on this question: Amey v. Long, 9 East,

473; Bull v. Loveland, 10 'Pick. 9; United 201 U- S' U. S., Book 50.

States Exp. Co. v. Henderson, 69 Iowa, 40,

28 N. W. 426 ; Greenl. Ev. 469a.

If, whenever an officer or employee of a corporation were summoned before a grand jury as a witness he could refuse to produce the books and documents of such corpora¬ tion, upon the ground that they would in¬ criminate the corporation itself, it would result in the failure of a large number of cases where the illegal combination was de¬ terminable only upon the examination of such papers. Conceding that the witness was an officer of the corporation under in¬ vestigation, and that he was entitled to as¬ sert the rights of the corporation with. re¬ spect to the production of its books and papers, we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his pri¬ vate business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an in¬ vestigation, so far as it may tend to crimi¬ nate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and prop¬ erty. His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of lq,w, and in accordance with the Constitution. Among his rights are a refusal to incriminate him¬ self, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes ifothing to the public so long as he does not trespass upon their rights.

Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can maKe no contract not author¬ ized by its charter. Its rights to *act as a

corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to in¬ vestigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a state, having chartered a corporation to make use of cer¬ tain franchises, could not, in the exercise of its sovereignty, inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that pur- » 665

75-77

Supreme Court or the United States.

Oct. Teri*,

pose. The defense amounts to this: That an officer of a corporation which is charged with a criminal violation of the statute, may plead the criminality of such corpora¬ tion as a refusal to produce its books. To state this proposition is to answer it. While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privi¬ leges and franchises, may refuse to show its hand when charged with an abuse of such privileges.

It is true that the corporation in this ease was chartered under the laws of New Jersey, and that it receives its franchise from the legislature of that state ; but such franchises, so far as they involve questions of inter¬ state commerce, must also be exercised in subordination to the power of Congress to regulate such commerce, and in respect to this the general government may also assert a sovereign authority to ascertain whether such franchises have been exercised in a law¬ ful manner, with a due regard to its own laws. Being subject to this dual sovereign¬ ty, the general government possesses the same right to see that its own laws are re¬ spected as the state would have with respect to the special franchises vested in it by the laws of the state. The powers of the general government in this particular in the vindi¬ cation of its own laws are the same as if the corporation had been created by an act of Congress. It is not intended to intimate, however, that it has a general visitatorial power over state corporations.

{76] we are of the *opinion that an officer of a corporation which is charged with a viola¬ tion of a statute of the state of its creation, or of an act of Congress passed in the exer¬ cise of its constitutional powers, cannot re¬ fuse to produce the books and papers of such corporation, we do not wish to be understood as holding that a corporation is not entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but an associa¬ tion of individuals under an assumed name and with a distinct legal entity. In organ¬ izing itself as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be pro¬ ceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful discrimination. Gulf, 0. & S. F. R. Co. v. Ellis, 165 U. S. 150, 154, 41 L. ed. 666, 667, 17 Sup. Ct. Rep. 255, and cases cited. Corporations are a necessary feature of modern business activity, and their aggregated capital has become the source of nearly all great enterprises.

666

We are also of opinion that an order for the production of books and papers may con¬ stitute an unreasonable search and seizure within the 4th Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forci¬ ble dispossession of the owner, still, as was held in the Boyd Case, the substance of the offense is the compulsory production of pri¬ vate papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection. Applying the test of reasonableness to the present case, we think the subpoena duces tecum is far too sweeping in its terms to be regarded as reasonable. It does not require the produc¬ tion of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understand¬ ings, contracts, or correspondence between the Mac Andrews & Forbes Company, and no less than six different companies, as well as all reports made and accounts rendered by such companies from the date of the or¬ ganization of the MacAndrews & Forbes Company, *as well as all letters received by

that company since its organization from more than a dozen different companies, sit¬ uated in seven different states in the Union.

If the writ had required the production of all the books, papers, and documents found in the office of the MacAndrews & Forbes Company, it would scarcely be more universal in its operation or more complete¬ ly put a stop to the business of that com¬ pany. Indeed, it is difficult to say how its business could be carried on after it had been denuded of this mass of material, which is not shown to be necessary in the prosecution of this case, and is clearly in violation of the general principle of law with regard to the particularity required in the description of documents necessary to a search warrant or subpoena. Doubtless many, if not all, of these documents may ultimately be required, but some necessity should be shown, either from an examina¬ tion of the witnesses orally, or from the known transactions of these companies with the other companies implicated, or some evi¬ dence of their materiality produced, to jus¬ tify an order for the production of such a mass of papers. A general subpoena of this description is equally indefensible as a search warrant would be if couched in sim¬ ilar terms. Ex parte Brown, 72 Mo. 83,

37 Am. Rep. 426; Shaftsbury v. Arrowsmith,

4 Ves. Jr. 66; Lee v. Angas, L. R. 2 Eq.

Of course, in view of the power of Con¬ gress over. interstate commerce, to which wo have adverted, we do not wish to be under-

201 TJ. S.

Hale v. Henkel.

77-80

stood as holding that an examination of the books of a corporation, if duly authorized by act of Congress, would constitute an un¬ reasonable search and seizure within the 4th Amendment.

But this objection to the subpoena does not go to the validity of the order remand¬ ing the petitioner, which is, therefore, af¬ firmed.

Mr. Justice Harlan, concurring:

I concur entirely in what is said in the

opinion of the court *in reference to the powers and functions of the grand jury and as to the scope of the 5th Amendment of the Constitution: I concur also in the affirm¬ ance of the judgment; but must withhold my assent to some of the views expressed in the opinion. It seems to me that the witness was not entitled to assert, as a reason for not obeying the order of the court, that the subpoena duces tecum was an infringement of the 4th Amendment, which declares that “the right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It may be, I am in¬ clined to think, as a matter of procedure and practice, that the subpoena duces tecum was too broad and indefinite. But the ac¬ tion of the court in that regard was, at the utmost, only error, and that error did not affect its jurisdiction to make the order, nor authorise the witness — whose personal rights, let it be observed, were in nowise in¬ volved in the pending inquiry — to refuse com¬ pliance with the subpoena, upon the ground that it involved an unreasonable search and seizure of the books, papers, and records of the corporation whose conduct, so far as it related to the Sherman antitrust act, was the subject of the examination. It was not his privilege to stand between the corpora¬ tion and the government in the investigation before the grand jury. In my opinion, a corporation — “an artificial being, invisible, intangible, and existing only in contempla¬ tion of law” — cannot claim the immunity given by the 4th Amendment ; for it is not a part of the “people,” within the meaning of that Amendment. Nor is it embraced by the word “persons” in the Amendment. If a contrary view obtains, the power of the government, by its representatives, to look into the books, records, and papers of a cor¬ poration, of its own creation, to ascei tain whether that corporation has obeyed or is defying the law, will be greatly curtailed, if not destroyed. If a corporation, when its affairs are under examination by a grand

SOI u. s.

jury *proceeding in its work under the orders

of the court, can plead the immunity given by the 4th Amendment against unreasonable searches and seizures, may it not equally re¬ ly upon that Amendment to protect it even against a statute authorizing or directing the examination by the agents of the gov¬ ernment creating it, of its papers, docu¬ ments, and records, unless they specify the particular papers, documents, and records to be examined? If the order of the court be¬ low is to be deemed invalid as an unreason¬ able search and seizure of the papers, books, deemed valid if made’under the express au- and records of the corporation, could it be thority of an act of Congress? Congress could not, any more than a court, authorize an unreasonable seizure or search in viola¬ tion of the 4th Amendment. In my judg¬ ment when a grand jury, seeking, in the dis¬ charge of its public duties, to ascertain whether a corporation has violated the law in any particular, requires the production of the books, papers, and records of such cor¬ poration, no officer of that corporation can rightfully refuse, when ordered to do so by the court, to produce such books, papers, and records in his official custody, upon the ground simply that the order was, as to the corporation, an unreasonable search and seizure within the meaning of the 4th Amendment.

Mr. Justice McKenna, concurring:

I concur in the judgment, but not in all the propositions declared by the court. I think the subpoena is sufficiently definite.

The charge pending was a violation of the antitrust act of 1890. [26 Stat. at L. 209, chap. 647. U. S. Comp. Stat, 1901, p. 3200.]

The documents and papers sought were the understandings and agreements of the ac¬ cused companies. That the documents com¬ manded were many or evidenced transac¬ tions occurring through a period of time are not circumstances fatal to the validity of the subpoena. If there was a violation of the antitrust act, that is, combinations in restraint of trade, it would be probably evi¬ denced by formal agreements, but it might also be evidenced or its transactions alluded to in telegrams *a’nd letters sent during the

time the combination operated. Each tele¬ gram, each letter, would contribute proof, and therefore material testimony. Why, then, should they not be produced? What answer is given? It is said the subpoena is tantamount to requiring all the books, papers, and documents found in the office of the MacAndrews & Forbes Company, and an embarrassment is conjectured as a result to its business. These, then, I assume, are the detrimental consequences that will be produced by obedience to the subpoena. If

667

80-82

Oct. Teem,

Supreme Coubt of the United States.

such consequences could be granted, they are not fatal to the subpoena. But they may be denied. There can be, at most, but a temporary use of the books, and this can be accommodated to the convenience of parties. It is matter for the court, and we cannot assume that the court will fail of consideration for the interest of parties, or subject them to more inconvenience than the demands of justice may require.

I cannot think that the consequences men¬ tioned are important or necessary to the ar¬ gument. A more serious matter is the ap¬ plication of the 4th Amendment of the Con¬ stitution of the United States.

It is said “a search implies a quest by an officer of the law; a seizure contemplates a forcible dispossession of the owner.” Nothing can be more direct and plain ; noth¬ ing more expressive to distinguish a sub¬ poena from a search warrant. Can a sub¬ poena lose this essential distinction from a search warrant by the generality or special¬ ity of its terms? I think not. The dis¬ tinction is based upon what is authorized or directed to be done, — not upon the form of words by which the authority or command is given. “The quest of an officer” acts upon the things themselves, — may be secret, in¬ trusive, accompanied by force. The service of a subpoena is but the delivery of a paper to a party, — is open and aboveboard. There is no element of trespass or force in it. It does not disturb the possession of property. It cannot be finally enforced except after challenge, and a judgment of the court upon the challenge. This is a safeguard against abuse the same as it is of other processes of

the *law; and it is all that can be allowed without serious embarrassment to the ad¬ ministration of justice. Of course, it con¬ strains the will of parties, subjects their property to the uses of proof. But we are surely not prepared to say that such uses are unreasonable, or are sacrifices which the law may not demand.

However, I may apprehend consequences that the opinion does not intend. It seems to be admitted that many, if not all, of the documents may ultimately be required, but it is said, “some necessity should be shown, either from an examination of the witnesses orally, or from the known transactions of these companies with the other companies implicated, or some evidence of their mate¬ riality produced, to justify an order for the production.” This intimates a differ¬ ent objection to the order of the court than the generality of the subpoena, and, if good at all, would be good even though few in¬ stead of many documents had been required or described ever so specifically. I am con¬ strained to dissent from it. The material - 668

ity of his testimony is not open to a witness to determine, and the order of proof is for the court. Besides, if a grand jury may investigate without specific charge, may in¬ vestigate upon the suggestion of one of its members, must it demonstrate the material¬ ity of every piece of testimony it calls for before it can require the testimony ? So limit the power of a grand jury and you may make it impotent in cases where it needs power most and in which its func¬ tion can best be exercised.

But what does the record show ? It shows that Hale refused to give the testimony that, this court says, should have preceded the order under review. He refused to an¬ swer what the business of the MacAndrew & Forbes Company was, or where its office was, or whether there was an agreement with the company and the American Tobacco Company in regard to the products of their respective businesses, or whether the com¬ pany he represented solcl its products throughout the United States. The ground of refusal was that there was no legal war¬ rant or authority for his examination, — not that the documents or testimony *was not material, or not shown to be material. Be¬ sides, after objection made to the laying of a foundation, complaint cannot be made that no foundation was laid. And it seems to be an afterthought in the proceedings on habeas corpus that the ground objection to exam¬ ination did not exclusively refer to the want of power in the grand jury.

By virtue of its dominion over inter¬ state commerce Congress has power, the opinion of the court asserts, over corpora¬ tions engaged in that commerce. And the power is the same as if the corporations had been created by Congress. Afid yet it is said to be a power subject to the limitation of the 4th Amendment. To this I am not prepared to assent. I have already pointed out the essential distinction between a subpoena duces tecum and a search warrant, and, it may be, the case at bar demands from me no expression of opinion of the 4th Amendment. And I am mindful, too, of the reservation in the opinion of the court of the power of Congress to require by direct leg¬ islation the fullest disclosures of their af¬ fairs from corporations engaged in inter¬ state commerce. While recognizing this may be true, and, that until such power is exercised, there may be reasons for holding that corporations are entitled to the protec¬ tion of the 4th Amendment, there are rea¬ sons against the contention, and I wish to guard against any action which would pre¬ clude against their consideration * in cases where the 4th Amendment may be a more determining factor than it is in the case at bar. There are certainly strong rea-

201 U. S,

TTat.k y. Henkel.

82-85

sons for the contention that, if corpo¬ rations cannot plead the immunity of the 5th Amendment, they cannot plead the immunity of the 4th Amendment. The protection of both amendments, it can be contended, is against the compulsory pro¬ duction of evidence to he used in criminal trials. Such warrants are used in aid of public prosecutions (Cooley, Const. Lim., 6th ed. 364), and in Boyd V. United Staten, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, a relation between the 4th Amend¬ ment and the 5th Amendment was declared. It was said the amendments throw great light on each other, “for the ‘unreasonable

searches and seizures’ condemned *in the 4th Amendment are almost always made for the purpose of compelling a man to give evi¬ dence against himself, which, in criminal cases, is condemned in the 5th Amendment; and compelling a man ‘in a criminal case to be a witness against himself,’ which is con¬ demned in the 5tli Amendment, throws light on the question as to what is an ‘un¬ reasonable search and seizure’ within the meaning of the 4th Amendment. And we have been unable to perceive that the sei¬ zure of a man’s private books and papers, to be used in evidence against him, is substan¬ tially different from compelling him to be a witness against himself.” Boyd v. United States is still recognized, and if its reason¬ ing remains unimpaired, and the purpose and effect of the 4th Amendment receives illumination from the 5th, or, to express the idea differently, if the amendments are the complements of each other, directed against the different ways by which a man’s immunity from giving evidence against him¬ self may be violated, it would seem a stropg, if not an inevitable, conclusion, that, if cor¬ porations have not such immunity, they can no more claim the protection of the 4th Amendment than they can of the 5th.

Mr. Justice Brewer, dissenting:

With what is said in the opinion of the court of the necessity of a “charge,” with the proposition that the immunity granted by the Federal statute is sufficient protec¬ tion against both the nation and the several states, with the holding that the protection accorded by the 5th Amendment to the Con¬ stitution is personal to the individual, and does not extend to an agent of an individual, or justify such agent in refusing to give testimony incriminating his principal, and also that the subpoena duces tecum cannot be

sustained, I fully agree.

Further, I desire to emphasize certain truths which in this and other cases decided to-day seem to be ignored or depreciated. The immunities and protection of articles 4, [gAis. and 14 *of the Amendments of tha Federal

i.Ol u. s.

Constitution are available to a corporation so far as, in the nature of things, they are applicable. Its property may not be taken for public use without just compensation.

It cannot be subjected to unreasonable searches and seizures. It cannot be de¬ prived of life or property without due pro¬ cess of law.

It may he well to compare the words of description in articles 4 and 5 with those in article 14:

“Article 4. The right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, and no war¬ rants shall issue but upon probable cause, supported by oath or affirmation, and par¬ ticularly describing the place to be searched, and the persons or things to be seized.

“Article 5. No person . . . shall be

compelled in any criminal case to be a wit¬ ness against himself, nor to be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”

“Article 14. Nor shall any state deprive any person of life, liberty, or property with¬ out due process of law; nor deny to any person within its jurisdiction the equal pro¬ tection of the laws.”

In Santa Clara County v. Southern P. R.

Co. 118 U. S. 394, 396, 30 L. ed. 118, 6 Sup.

Ct. Rep. 1132, Mr. Chief Justice Waite said:

“The court does not wish to hear argu¬ ment on the question whether the provision in the 14th Amendment to the Constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations.

We are all of opinion that it does.”

See also Pembina Consol. Silver Min. t£

Mill. Co. v. Pennsylvania, 125 U. S. 181, 31 L. ed. 650, 2 Inters. Com. Rep. 24, 8 Sup.

Ct. Rep. 737 ; Missouri P. R. Co. v. Mackey,

127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep.

1161; Minneapolis & St. L. R. Co. v. Beck¬ with, 129 U. S. 26, 32 L. ed. 585, 9 Sup.

Ct. Rep. 207; Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. Rep. 255; Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed.

463, 13 Sup. Ct. Rep. 622; Gulf, C. & S. F.

R. Co. v. Ellis, 165 U. S. 150, 154, 41 L. ed.

066, 667, 17 Sup. Ct. Rep. 255, *and cases

cited; Chicago, B. & Q. R. Co. v. Chicago,

166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct.

Rep. 581.

These decisions were under the 14th Amendment; but if the word “person” in that amendment includes corporations, it also includes corporations when used in the 4th and 5th Amenuments.

By the 4th Amendment the “people” are guaranteed protection against. *tnreasonable

85-87

Supreme Court of the United States.

Oct. Term,

searches and seizures. “Citizens,” is a de¬ scriptive word; no broader, to say the least, than “people.”

As repeatedly held, a corporation is a citi¬ zen of a state for purposes of jurisdiction of Federal courts, and, as a citizen, it may locate mining claims under the laws of the United States (McKinley v. Wheeler, 130 U. S. 630, 32 L. ed. 1048, 9 Sup. Ct. Rep. 638) and is entitled to the benefit of the Indian depredation acts ( United States v. Northwestern Express Stage, & Transp. Co. 164 U. S. 686, 41 L. ed. 599, 17 Sup. Ct. Rep. 206). Indeed, it is essentially but an as¬ sociation of individuals, to which is given certain rights and privileges, and in which is vested the legal title. The beneficial ownership is in the individuals, the corpora¬ tion being simply an instrumentality by which the powers granted to these associated individuals may be exercised. As said by Chief Justice Marshall in Providence Bank v. Billings, 4 Pet. 514, 562, 7 L. ed. 939, 956: “The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men.”

United States v. Amedy, 11 Wheat. 392, 6 L. ed. 502, was the case of an indictment under an act of Congress for destroying a vessel with intent to prejudice the under¬ writers. The act of Congress declared that “if any person shall . . . wilfully and corruptly cast away . . . any ship or vessel . . . with intent or design to pre¬

judice any person or persons that hath un¬ derwritten or shall underwrite any policy/’ etc. [2 Stat. at L. 290, chap. 40, § 2, U. S. Comp. Stat. 1901, p. 3641.] The indictment charged an intent to defraud an incorporated insurance company, and the court held that a corporation is a person within the meaning of the act, saying (p. 412, L. ed. p. 507) :

“The mischief intended to be reached by

the statute is the 'same, whether it respects private or corporate persons. That corpo¬ rations are, in law, for civil purposes, deemed persons, is unquestionable. And the cita¬ tion from 2 Inst. 736, establishes that they are so deemed within the purview of penal statutes. Lord Coke, there, in commenting on the statute of 31 Eliz. chap. 7, respecting the erection of cottages, where the word used is, ‘no person shall/ etc., says : ‘This extends as well to persons politic and incorporate, as to natural persons whatsoever.’ ”

Neither does the fact that a corporation is engaged in the interstate commerce in any manner abridge the protection and applica¬ ble immunities accorded by the amendments. The corporation of which the petitioner was an officer was chartered by a state,, and over it the general government has no more con¬ trol than over an individual citizen of that 670

state. Its power to regulate commerce ioes not carry with it a right to dispense with the 4th and 5th Amendments, to unrea¬ sonably search or seize the papers of an in¬ dividual or corporation fengaged in such commerce, or deprive him or it of any im¬ munity or protection, secured by either amendment.

It is true that there is a power of super¬ vision and inspection of the inside work¬ ings of a corporation, but that belongs to the creator of the corporation. If a state has chartered it, the power is lodged in the state. If the nation, then in the nation; and it cannot be exercised by any other au¬ thority. It is in the nature of the power of visitation.

In Angell & Ames on Corporations, 9th ed., chap. 19, §§ 684, 685, the authors say:

“To render the charters or constitutions, ordinances and by-laws of corporations of perfect obligation, and generally to main¬ tain their peace and good government, these bodies are subject to visitation; or, in other words, to the inspection and control of tribunals recognized by the laws of the land.

Civil corporations are visited by the govern¬ ment itself, through the medium of the courts of justice; but the internal affairs of ecclesiastical and eleemosynary corpora¬ tions are, in general, inspected and con¬ trolled by a private visitor. . . .

*“In this country, where there is no in-

dividual founder or donor, the legislature are the visitors of all corporations founded by them for public purposes, and may di¬ rect judicial proceedings against them for abuse or neglects which, at common law, would cause a forfeiture of their charters.”

The matter is discussed in Blackstone’s Commentaries, in par. 3, chap. 18, bk. 1, and he says:

“I proceed, therefore, next to inquire, how these corporations may be visited. For cor¬ porations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. And for that rea¬ son the law has provided proper persons to visit, inquire into, and correct all irregu¬ larities that arise in such corporations, either sole or aggregate and whether ec¬ clesiastical, civil, or eleemosynary.”

And in respect to civil corporations he adds, same paragraph and chapter (*782) :

“The law having by immemorial usage ap¬ pointed them to be wisited and inspected by the King, their founder, in His Majesty’s Court of King’s Bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other au¬ thority.”

In 2 Kent, Com. *300, the author says:

“The visitation of civil corporations is by

201 TJ. S.

McAlister v. Henkel.

87-90

the government itself, through the medium of the courts of justice.”

In Amherst Academy v. Cowls, 6 Pick. 427, 433, 17 Am. Dec. 387, it was held that:

“Without doubt the legislature are the visitors of all corporations founded by them for public purposes, where there is no indi¬ vidual founder or donor, and may direct ju¬ dicial process against them for abuses or neglects which by common law would cause a forfeiture of their charters.”

The right of visitation is for the purpose of control and to see that the corporation keeps within the limits of its powers. It would be strange if a corporation doing busi¬ ness in a dozen states was subject to the

visitation of each of those states, and •com¬ pelled to regulate its actions according to the judgments— perhaps the conflicting judgments — of the several legislatures. The fact that a state corporation may engage in business which is within the general reg¬ ulating power of the national government does not give to Congress any right of vis¬ itation or of any power to dispense with the immunities and protection of the 4tli and 5th Amendments. The national government has jurisdiction over crimes committed within its special territorial limits. Can it dispense in such cases with these immuni¬ ties and protections? No more can it do .so in respect to the acts and conduct of indi¬ viduals coming within its regulating power. It has the same control over commerce with foreign nations as over that between the states. Boyd v. United States, 1 1 G U. S. GIG, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, arose under the revenue acts, and the appli¬ cability of the 4th and 5th Amendments was sustained. In that case is an elaborate opinion by Mr. Justice Bradley, speaking for the court, in which the origin of the 4th and 5th Amendments is discussed, their re¬ lationship to each other shown, and the necessity of a constant adherence to the underlying thought of protection expressed in them strenuously insisted upon. I quote his words (p. 635, L. ed. p. 752, Sup. Ct. Rep. p. 535) :

“It may be that it [the proceeding in question] is the obnoxious thing in its mild¬ est and least repulsive form; but illegiti¬ mate 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 construc¬ tion 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 201 U. S.

watchful for the constitutional rights of the citizens, and against any stealthy encroach¬ ments thereon. Their motto should be obsta principiis.”

Finally, as the subpoena duces tecum was the initiatory step in the proceedings before, the grand jury against this petitioner, *as

that is the major fact in those proceedings, and as it is agreed that it is not sustainable, it seems to me that the order adjudicating him in contempt should be set aside, and this notwithstanding that subsequently he improperly refused to answer certain ques¬ tions.

The case is not parallel to that of an in¬ dictment in two counts upon which a general judgment is entered, and one of which counts is held good and the other bad, for a writ of habeas corpus is not a writ of er¬ ror, and the order to be entered thereon is for a discharge or a remand to custody. If a discharge is ordered, no punishment can be inflicted under the judgment as rendered; and if a new prosecution is instituted con¬ taining the good count, a plea of former conviction will be a full defense. But in the case at bar an order for a discharge will have no such result. The habeas cor¬ pus statute (Rev. Stat. § 761, U. S. Comp. Stat. 1901, p. 594) provides that “the court or justice or judge shall proceed in a sum¬ mary way ... to dispose of the party as law and justice require.” Justice re¬ quires that he should not be subjected to the costs of this habeas corpus proceeding, or be punished for contempt, when he was fully justified in disregarding the principal de¬ mand made upon him.

The order of the circuit court should be reversed and the case remanded with in¬ structions to discharge the petitioner, leav¬ ing to the grand jury the right to initiate new proceedings not subject to the objections to this.

I am authorized to say that the Chief Justice concurs in these views.