# Hale v. Henkel/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
201 U.S. 43
Hale v. Henkel
Argued: January 4, 5, 1906. --- Decided: March 12, 1906
Two issues are presented by the record in this case, which are so far distinct as to require separate consideration. They depend upon the applicability of different provisions of the Constitution, and, in determining 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 documents called for by the subpoena duces tecum.
1. The appellant justifies his action in refusing to answer the Messrs. De Lancey Nicoll, Junius Parker, and John D. Lindsay for appellant.
[Argument of Counsel from pages 47-51 intentionally omitted]
Messrs. Henry W. Taft, Felix H. Levy, and Attorney General Moody for appellee.
[Argument of Counsel from pages 51-58 intentionally omitted]
Mr. Justice Brown, after making the foregoing statement, delivered the opinion of the court.
Two issues are presented by the record in this case, which are so far distinct as to require separate consideration. They depend upon the applicability of different provisions of the Constitutiuon, and, in determining 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 documents called for by the subpoena duces tecum.
The appellant justifies his action in refusing 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 connection, 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 attorney, which is of no legal value in prosecutions 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 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 wholly unacquainted, and one which might involve a betrayal of the secrets of the grand jury room.
Under the ancient English system, criminal 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 testimony or was dictated by malice or personal ill will.
We are pointed to no case, however, holding that a grand jury cannot proceed without the formality of a written charge. Indeed, the oath administered to the foreman, which has come down to us from the most ancient times, and is found in Shaftesbury'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, articles, 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 remained substantially unchanged to the present day. There was a difference, too, in the nomenclature of the two cases of accusations by private persons and upon their own knowledge. In the former case their action was embodied in an indictment formally laid before them for their consideration; in the latter case, in the form of a presentment. Says Blackstone in his Commentaries, bk. 4, p. 301:
'A presentment, properly speaking, is the notice taken by a grand jury of any offense from their own knowledge or observation, without any bill of indictment laid before 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, before the party presented can be put to answer it.'
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, unnoticed, presentments on which the attorney does not think it proper to institute proceedings.
In a case arising in Tennessee the grand jury without the agency of the district attorney, had called witnesses before them, whom they interrogated as to their knowledge concerning the then late Cuban expedition. 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 witnesses 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 into 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 obtains. 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 practice, 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 conceptions are much too contracted; they present 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 government and people it is surely the concernment that, on one hand, all crimes, whether given or not given in charge, whether described 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 inquiries: Why, then, should it be circumscribed by more contracted boundaries? Shall diligent inquiry be enjoined? And shall the means and opportunities of inquiry be prohibited or restrained?'
Similar language was used by Judge Addison, 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 knowledge, 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 particular form, the facts and circumstances which constitute the offense. This is called a presentment.'
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 presented, the authorities in the state courts largely preponderate in favor of the theory that the grand jury may act upon information received by them from the examination of witnesses without a formal indictment, or other charge previously laid before them. An analysis of cases approving of this method 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 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 powers, and may lawfully themselves, and upon their own motion, originate charges against offenders, though no preliminary proceedings have been had before a magistrate, 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 knowledge:
'Not by rumors and reports, but by knowledge 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, commit 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. 355. And in Frisbie v. United States, 157 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 evidence is sufficient to justify putting the party suspected on trial, to direct the preparation 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 object 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 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 inquisitorial 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 particular 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 in 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 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. Wake County, 74 N. C. 194, the English practice, which requires a preliminary investigation where the accused can confront the accuser and witnesses with testimony, 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 particular 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. Crim. Rep. 312, 87 N. Y. Supp. 721; State v. Adams, 2 Lea, 647, an unimportant case, turning upon a local statute. In Pennsylvania, grand juries are somewhat more restricted 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 examination of witnesses need not be preceded by a presentment or indictment formally drawn up, but that the grand jury may proceed, either upon their own knowledge or upon the examination of witnesses, to inquire for themselves whether a crime cognizable 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 reserved to courts of impaneling grand juries for the investigation of riots, frauds, and nuisances, and other cases where it is impracticable to ascertain in advance the names of the persons implicated. It is impossible to conceive that in such cases the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted. As criminal prosecutions are instituted by the state through an officer selected 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 attention of the court, it would doubtless be alert to repress them. While the grand jury may not indict upon current rumors or unverified reports, they may act upon knowledge acquired either from their own observations or upon the evidence of witnesses, given before them.
2. Appellant also invokes the protection of the 5th Amendment to the Constitution, which declares that no person 'shall be compelled 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 incriminate 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.C.omp. Stat. Supp. 1905, p. 602), that 'no person shall be prosecuted or be subjected 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, providing, however, that 'no person so testifying 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 necessary to protect the witness in his disclosures, whenever such disclosures are made in pursuance 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 technical one, and is aptly used by the courts to designate an inquiry before a grant 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. Rep. 575.
The object of the amendment is to establish 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 reputation 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 criminality has already been taken 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 prosecution. 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 thereby 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 criminality 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.C.omp. Stat. 1901, p. 661), was declared to be insufficient. 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, 131 U.S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup.Ct.Rep. 644, to afford absolute immunity against prosecution for the offense to which the question related, and deprived the witness of his constitutional right to refuse to answer. Indeed, the act was passed apparently to meet the declaration in Counselman v. Hitchcook (586, L. ed. 1122, Inters. Com. Rep. 828, Sup.Ct.Rep. 206), that 'a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.' If the constitutional amendment were unaffected by the immunity statute, it would put if within the power of the witness to be his own judge as to what would tend to incriminate him, and would justify him in refusing to answer almost any question in a criminal case, unless it clearly appears that the immunity 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 consideration.
The suggestion that a person who has testified 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 his 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 member of the jury present. It is scarcely possible that all of them would have forgotten the general nature of his incriminating testimony or that any serious conflict would arise therefrom. In any event, it is a question relating to the weight of the testimony, which could scarcely be considered in determining 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 testimony. 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, 73, 26 Sup. Ct. Rep. 73,-namely, that the fact that an immunity granted to a witness under a state statute would not prevent a prosecution of such witness for a violation of a Federal statute did not invalidate such statute under the 14th Amendment. It was held both by this court and by the supreme court of Kansas that the possibility that information given by the witness might be used under the Federal act did not operate as a reason for permitting 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 only to state prosecutions within the same jurisdiction, but to prosecutions under the criminal laws of other states to whcih the witness mignt have subjected himself. The question has been fully considered in England, 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 7 St. Tr. N. S. 1049, 1068; State v. 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 Virginia 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 penalties. It is sufficient to say that the prosecution 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 another jurisdiction.
But it is further insisted that, while the immunity statute may protect individual witnesses, it would not protect the corporation 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 incriminated 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 individual 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 corporation is called upon to answer a bill of discovery, since it can only be heard by oral evidence in the person of some one of its agents or employees. The amendment is limited to a person who shall be compelled in any criminal case to be a witness against himself; and if he cannot set up the privilege 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 of parties thereto, in the person of their agents 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 unlawful 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 personal 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.
3. The second branch of the case relates to 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 exactness, 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 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.'
The construction of this amendment was exhaustively considered in the case of Boyd v. United States, 116 U.S. 616, 29 L. ed. 746, 6 Sup.Ct.Rep. 524, which was an information 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.C.omp. Stat. 1901, p. 2018], directed a notice to be given to the claimants, requiring them to produce the invoice of these cases under penalty 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 property, is within the scope of the 4th Amendment to the Constitution, in all cases in which a search and seizure would be,' and that the order in question was an unreasonable search and seizure within that amendment.
The history of this provision of the Constitution and its connection with the former practice of general warrants, or writs of assistance, 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 different 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 Commission, 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 testimony of witnesses, and the production of books, papers, tariffs, contracts, agreements, and documents relating to any matter legally committed to that body for investigation. We do not understand that any of these propositions are disputed in this case.'
The case of Adams v. New 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 paraphernalia, was treated as involving the construction of the 4th and 5th Amendments to the Federal Constitution. It was held, in substance, 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 objection to their admissibility; that the admission as evidence in a criminal trial or 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 evidence, defendant was not compelled to incriminate himself. The substance of the opinion is contained in the following paragraph. It was contended that: 'If a search warrant is issued for stolen property, and 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 compulsory 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 connection with the still later case of Interstate Commerce Commission v. Baird, 194 U.S. 25, 48 L. ed. 860, 24 Sup.Ct.Rep. 563, which arose upon the petition of the Commission for orders requiring the testimony of witnesses and the production of certain books, papers, and documents. The case grew out of a complaint against certain railway companies that they charged unreasonable and unjust rates for the transportation of anthracite coal. Objection was made to the production of certain contracts between these companies upon the ground that it would compel the witnesses to furnish evidence against themselves, in violation of the 5th Amendment, and would also subject the parties to unreasonable searches and seizures. It was held that the circuit court erred in holding the contracts to be irrelevant, and in refusing to order their production as evidence by the witnesses who were 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 result in his punishment for crime or the forfeiture 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 follows 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 seizure 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 v. 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 upon this question: Amey v. Long, 9 East, 473; Bull v. Loveland, 10 Pick. 9; United 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 corporation, upon the ground that they would incriminate the corporation itself, it would result in the failure of a large number of cases where the illegal combination was determinable only upon the examination of such papers. Conceding that the witness was an officer of the corporation under investigation, and that he was entitled to assert the rights of corporation with respect 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 private 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 investigation, so far as it may tend to criminate him. He owes no such duty to the state, since he receives nothing therefrom, beyond the protection of his life and property. 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 law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing 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 authorized 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 investigate 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 certain 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 purpose. 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 corporation 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 privileges and franchises, may refuse to show its hand when charged with an abuse of such privileges.
It is true that the corporation in this case 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 interstate 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 lawful manner, with a due regard to its own laws. Being subject to this dual sovereignty, the general government possesses the same right to see that its own laws are respected 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 vindication 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 the state corporations.
4. Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse 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 association of individuals under an assumed name and with a distinct legal entity. In organizing 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 proceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful discrimination. Gulf, C. & 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.
We are also of opinion that an order for the production of books and papers may constitute 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 forcible dispossession of the owner, still, as was held in the Boyd Case, the substance of the offense is the compulsory production of private 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 production of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understandings, contracts, or correspondence between the MacAndrews & 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 organization of the MacAndrews & Forbes Company, as well as all letters received by that company since its organization from more than a dozen different companies, situated 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 completely put a stop to the business of that company. 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 examination of the witnesses orally, or from the known transactions of these companies with the other companies implicated, or some evidence of their materiality produced, to justify 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 similar terms. Ex parte Broun, 72 Mo. 83, 37 Am. Rep. 426; Shaftsbury v. Arrowsmith, 4 Ves. Jr. 66; Lee v. Angas, L. R. 2 Eq. 59.
Of course, in view of the power of Congress over interstate commerce, to which we have adverted, we do not wish to be understood as holding that an esamination of the books of a corporation, if duly authorized by act of Congress, would constitute an unreasonable search and seizure within the 4th Amendment.
But this objection to the subpoena does not go to the validity of the order remanding the petitioner, which is, therefore, affirmed.
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 affirmance 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 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 inclined to think, as a matter of procedure and practice, that the srbpoena duces tecum was too broad and indefinite. But the action 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 authorize the witness-whose personal rights, let it be observed, were in nowise involved in the pending inquiry-to refuse compliance 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 corporation and the government in the investigation before the grand jury. In my opinion, a corporation-'an artificial being, invisible, intangible, and existing only in contemplation 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 corporation of its own creation, to ascertain 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 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 rely upon that Amendment to protect it even against a statute authorizing or directing the examination by the agents of the government creating it, of its papers, documents, and records, unless they specify the particular papers, documents, and records to be examined? If the order of the court below is to be deemed invalid as an unreasonable search and seizure of the papers, books, and records of the corporation, could it be deemed valid if made under the express authority of an act of Congress? Congress could not, any more than a court, authorize an unreasonable seizure or search in violation of the 4th Amendment. In my judgment when a grand jury, seeking, in the discharge 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 corporation, 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.
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.C.omp. Stat. 1901, p. 3200.] The documents and papers sought were the understandings and agreements of the accused companies. That the documents commanded were many or evidenced transactions 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 evidenced by formal agreements, but it might also be evidenced or its transactions alluded to in telegrams and letters sent during the time the combination operated. Each telegram, 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 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 mentioned are important or necessary to the argument. A more serious matter is the application of the 4th Amendment of the Constitution 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; nothing more expressive to distinguish a subpoena from a search warrant. Can a subpoena lose this essential distinction from a search warrant by the generality or speciality of its terms? I think not. The distinction 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, intrusive, 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 administration of justice. Of course, it constrains 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 materiality produced, to justify an order for the production.' This intimates a different 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 constrained to dissent from it. The materiality of his testimony is not open to a witness to dertermine, and the order of proof is for the court. Besides, if a grand jury may investigate without specific charge, may investigate upon the suggestion of one of its members, must it demonstrate the materiality of every piece of testimony it calls for before it can require the testimony? So limit the power to a grand jury and you may make it impotent in cases where it needs power most and in which its function 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 answer 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 company he represented sold its products throughout the United States. The ground of refusal was that there was no legal warrant or authority for his examination, not that the documents or testimony was not material, or not shown to be material. Besides, 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 examination did not exclusively refer to the want of power in the grand jury.
By virtue of its dominion over interstate commerce Congress has power, the opinion of the court asserts, over corporations engaged in that commerce. And the power is the same as if the corporations had been created by Congress. And 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 legislation the fullest disclosures of their affairs from corporations engaged in interstate 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 protection of the 4th Amendment, there are reasons against the contention, and I wish to guard against any action which would preclude 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 reasons for the contention that, if corporations 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 production of evidence to be used in criminal trials. Such warrants are used in aid of public prosecutions (Cooley, Const. Lim., 6th ed. 364), and in Boyd v. United States, 116 U.S. 616, 29 L. ed. 746, 6 Sup.Ct.Rep. 524, a relation between the 4th Amendment 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 evidence 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 condemned in the 5th Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the 4th Amendment. And we have been unable to perceive that the seizure of a man's private books and papers, to be used in evidence against him, is substantially different from compelling him to be a witness against himself.' Boyd v. United States is still recognized, and if its reasoning 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 himself may be violated, it would seem a strong, if not an inevitable, conclusion, that, if corporations have not such immunity, they can no more claim the protection of the 4th Amendment than they can of the 5th.
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 protection against both the nation and the several states, with the holding that the protection accorded by the 5th Amendment to the Constitution 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, 5, and 14 of the amendments to the Federal 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 deprived of life or property without due process of law.
It may be 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 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.
'Article 5. No person . . . shall be compelled in any criminal case to be a witness 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 without due process of law; nor deny to any person within its jurisdiction the equal protection 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 argument 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. & 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. Beckwith, 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. 666, 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 work 'person' in that amendment includes corporations, it also includes corporations when used in the 4th and 5th Amendments.
By the 4th Amendment the 'people' are guaranteed protection against unreasonable searches and seizures. 'Citizens,' is a descriptive word; no broader, to say the least, than 'people.'
As repeatedly held, a corporation is a citizen 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. Sheeler, 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 association 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 corporation 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 underwriters. The act of Congress declared that 'if any person shall . . . wilfully and corruptly cast away . . . any ship or vessel . . . with intent or design to prejudice any person or persons that hath underwritten or shall underwrite any policy,' etc. [2 Stat. at L. 290, chap. 40, § 2, U.S.C.omp. Stat. 1901, p. 364.] 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 corporations are, in law, for civil purposes, deemed persons, is unquestionable. And the citation 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 applicable 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 control than over an individual citizen of that state. Its power to regulate commerce does not carry with it a right to dispense with the 4th and 5th Amendments, to unreasonably search or seize the papers of an individual or corporation engaged in such commerce, or deprive him or it of any immunity or protection secured by either amendment.
It is true that there is a power of supervision and inspection of the inside workings 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 authority. 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 maintain 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 government itself, through the medium of the courts of justice; but the internal affairs of ecclesiastical and eleemosynary corporations are, in general, inspected and controlled by a private visitor. . . .
'In this country, where there is no individual founder or donor, the legislature are the visitors of all corporations founded by them for public purposes, and may direct 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 corporations 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 reason the law has provided proper persons to visit, inquire into, and correct all irregularities that arise in such corporations, either sole or aggregate and whether ecclesiastical, civil, or eleemosynary.'
And in respect to civil corporations he adds, same paragraph and chapter (*782):
'The law having by immemorial usage appointed them to be visited 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 authority.'
'The visitation of civil corporations is by 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 them visitors of all corporations founded by them for public purposes, where there is no individual founder or donor, and may direct judicial 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 business in a dozen states was subject to the visitation of each of those states, and compelled 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 regulating power of the national government does not give to Congress any right of visitation for of any power to dispense with the immunities and protection of the 4th and 5th Amendments. The national government has jurisdiction over crimes committed within its special territorial limits. Can it dispense in such cases with these immunities and protections? No more can it do so in respect to the acts and conduct of individuals 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, 116 U.S. 616, 29 L. ed. 746, 6 Sup.Ct.Rep. 524, arose under the revenue acts, and the applicability 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 relationship 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 mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments 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 questions.
The case is not parallel to that of an indictment 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 error, 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 containing 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 corpus statute (Rev. Stat. § 761, U.S.C.omp. Stat. 1901, p. 594) provides that 'the court or justice or judge shall proceed in a summary way . . . to dispose of the party as law and justice require.' Justice requires 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 demand made upon him.
The order of the circuit court should be reversed and the case remanded with instructions to discharge the petitioner, leaving 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.

## Notes

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