Hale v. Henkel, 201 U.S. 43 (1906)

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43 (1906) :: Justia US Supreme Court Center
Hale v. Henkel, 201 U.S. 43 (1906)
Syllabus Case
U.S. Supreme Court

Hale v. Henkel, 201 U.S. 43 (1906)
Hale v. Henkel
No. 340
Argued January 4, 5, 1906
Decided March 12, 1906
201 U.S. 43
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK
Syllabus
Under the practice in this country, the examination of witnesses by a Federal grand jury
need not be preceded by a presentment or formal indictment, but the grand jury may
proceed, either upon their own knowledge or upon examination of witnesses, to inquire
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whether a crime cognizable by the court has been committed, and, if so, they may indict
upon such evidence. In summoning witnesses, it is 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 or laying a basis by a formal indictment.
The examination of a witness before a grand jury is a "proceeding" within the meaning of
the proviso to the general appropriation act of 1903 that no person shall be prosecuted on
account of anything which he may testify in any proceeding under the Antitrust Law. The
word should receive as wide a construction as is necessary to protect the witness in his
disclosures.
The interdiction of the Fifth Amendment operates only where a witness is asked to
incriminate himself, and does not apply if the criminality is taken away. A witness is not
excused from testifying before a grand jury under a statute which provides for immunity,
because he may not be able, if subsequently indicted, to procure the evidence necessary to
maintain his plea. The law takes no account of the practical difficulty which a party may
have in procuring his testimony.
A witness cannot refuse to testify before a Federal grand jury in face of a Federal statute
granting immunity from prosecution as to matters sworn to, because the immunity does
not extend to prosecutions in a State court. In granting immunity, the only danger to be
guarded against is one within the same jurisdiction and under the same sovereignty.
The benefits of the Fifth Amendment are exclusively for a witness compelled to testify
against himself in a criminal case, and he cannot set them up on behalf of any other person
or individual, or of a corporation of which he is an officer or employe.
Page 201 U. S. 44
A witness who cannot avail himself of the Fifth Amendment as to oral testimony, because
of a statute granting him immunity from prosecution, cannot set it up as against the
production of books and papers, as the same statute would equally grant him immunity in
respect to matters proved thereby.
The search and seizure clause of the Fourth Amendment was not intended to interfere with
the power of courts to compel the production upon a trial of documentary evidence through
a subpoena duces tecum.
While an individual may lawfully refuse to answer incriminating questions unless protected
by an immunity statute, a corporation is a creature of the State, and there is a reserved
right in the legislature to investigate its contracts and find out whether it has exceeded its
powers.
There is a clear distinction between an individual and a corporation, and the latter, being a
creature of the State, has not the constitutional right to refuse to submit its books and
papers for an examination at the suit of the State; and an officer of a corporation which is
charged with criminal violation of a statute cannot plead the criminality of the corporation
as a refusal to produce its books.
Franchises of a corporation chartered by a State are, so far as they involve questions of

interstate commerce, exercised in subordination to the power of Congress to regulate such
commerce; and while Congress may not have general visitatorial power over State
corporations, its powers in vindication of its own laws are the same as if the corporation
had been created by an act of Congress.
A corporation is but an association of individuals with a distinct name and legal entity, and,
in organizing itself as a collective body, it waives no appropriate constitutional immunities,
and, although it cannot refuse to produce its books and papers, it is entitled to immunity
under the Fourth Amendment against unreasonable searches and seizures, and, where an
examination of its books is not authorized by an act of Congress, a subpoena duces tecum
requiring the production of practically all of its books and papers is as indefensible as a
search warrant would be if couched in similar terms.
Although the subpoena duces tecum may be too broad in its requisition, where the witness
has refused to answer any question, or to produce any books or papers, this objection
would not go to the validity of the order committing him for contempt.
This was an appeal from a final order of the Circuit Court made June 18, 1905, dismissing a
writ of habeas corpus and remanding the petitioner Hale to the custody of the marshal.
The proceeding originated in a subpoena duces tecum, issued April 28, 1905, commanding
Hale to appear before the grand jury at a time and place named, to
"testify and give evidence
Page 201 U. S. 45
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 Company 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:"
y g y p p
1. All understandings, agreements, arrangements, or contracts, whether evidenced by

correspondence, memoranda, formal agreements, or other writings, between MacAndrews
& Forbes Company and six other firms and corporations named, from the date of the
organization of the said MacAndrews & Forbes Company.
2. All correspondence by letter or telegram between MacAndrews & Forbes Company and
six other firms and corporations.
3. All reports made or accounts rendered by these six companies or corporations to the
principal company.
4. Any agreements or contracts, or arrangements, however evidenced, between

MacAndrews & Forbes Company and the Amsterdam Supply Company or the American
Tobacco Company or the Continental Company or the Consolidated Tobacco Company.
5. All letters received by the MacAndrews & Forbes Company since the date of its
organization from thirteen other companies named, located in different parts of the United
States, and also copies of all correspondence with such companies.
Petitioner appeared before the grand jury in obedience to the subpoena, and, before being
sworn, asked to be advised of the nature 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 indictment upon which they were acting; that he had been
informed that there was no action pending in the circuit court, as stated in the subpoena,
and that the grand jury was investigating no specific charge against
Page 201 U. S. 46
anyone, 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 declined to answer all other questions in regard to the
business of the company, its officers, the location of its office, or its agreement or
arrangements with other companies. He was thereupon advised by the assistant district
attorney that this was a proceeding under the Sherman act to protect 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 penalty or forfeiture on account
thereof, no person could be prosecuted or subjected to any penalty 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
immunity from punishment. The witness still persisted in his refusal to answer all
questions. He also declined to produce the papers and documents called for in the
subpoena:
First. Because it would have been a physical impossibility to have gotten them together
within the time allowed.
Second. Because he was advised by counsel that he was under no legal obligations to
produce anything called for by the subpoena.
Third. Because they might tend to incriminate 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. Thereupon all the
parties appeared before the circuit judge, who directed the witness to answer the questions
and produce the papers. Appellant still persisting in his refusal, 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.
Page 201 U. S. 58
MR. JUSTICE BROWN 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
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
Page 201 U. S. 59
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
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
Page 201 U. S. 60
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 Rex
v. Shaftsbury, 8 Howell's State Trials 759, 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
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, Book IV, 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, 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
Page 201 U. S. 61
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. II, 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
Page 201 U. S. 62
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; State v. Terry, 30 Mo.
368; Ex
Page 201 U. S. 63
parte Brown, 72 Mo. 83; Commonwealth v. Smyth, 11 Cush. 473; State v. Wolcott, 21
Connecticut 272-280; State v. Magrath, 44 N.J.L. 227; Thompson & Merriam on Juries, §§
615-617. In Blaney v. Maryland, 74 Maryland 153, 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), 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.Rep. 156-161; United States
v. Reed, 2 Blatchf. 44; United States v. Terry, 39 Fed.Rep. 355. And in Frisbie v. United
States, 157 U. S. 160, 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
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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, In re Lester, 77 Georgia 143, the mayor of Savannah, who
was also ex
Page 201 U. S. 64
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 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. Board of Commissioners, 74 N.Car. 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. In Matter of Morse, 18 N.Y.Criminal Rep. 312; State v. Adams, 70 Tennessee
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.
Commonwealth, 67 Pa.St.
Page 201 U. S. 65
30; Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa.St. 531, and,
in Tennessee, inquisitorial powers are granted in certain cases and withheld in others.
State v. Adams, supra; State v. Smith, Meigs, 99.
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
Page 201 U. S. 66
or upon the evidence of witnesses, given before them.
2. Appellant also invokes the protection of the Fifth 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. 854-904, 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. The Queen, 14 Q.B.D. 648; Hogan v. State, 30 Wisconsin
428.
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
Page 201 U. S. 67
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 Fifth 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, in which the immunity offered by Rev.Stat. section 860 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,
161 U. S. 591, 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. Hitchcock,
p. 142 U. S. 586, 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
Page 201 U. S. 68
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, 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 Fourteenth Amendment. It was held both by this court and by the
Supreme Court of Kansas that
Page 201 U. S. 69
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 which the witness might 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 B. & S. 311; King of the Two Sicilies v. Willcox, 7 State Trials (N.S.) 1049,
1068; State v. March, 1 Jones (N.Car.) 526; State v. Thomas, 98 N.Car. 599.
The case of United States v. Saline Bank, 1 Pet. 100, 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 Fifth 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
Page 201 U. S. 70
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
Page 201 U. S. 71
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 Fourth Amendment to the Constitution, which declares that
"[t]he 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.
y y
United States, 116 U. S. 616, 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, 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 (p. 116 U. S. 622)
"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 Fourth 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. 116 U. S. 634)
"is compelling a man to be a witness against himself, within the meaning of the Fifth
Amendment to the Constitution, and is the equivalent of a search and seizure -- and an
unreasonable search and seizure -- within the meaning of the Fourth Amendment. "
Page 201 U. S. 72
Subsequent cases treat the Fourth and Fifth 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, 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, 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 Fourth and Fifth 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 Fifth 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:
"[i]f 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
Page 201 U. S. 73
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, 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 Fifth 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 Fourth and Fifth 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 Fifth 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
protected by the immunity act. We think it quite clear that the search and seizure clause of
the Fourth 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 Cr. & 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,
Page 201 U. S. 74
10 Pick. 9; United States Express Co. v. Henderson, 69 Iowa 40; Greenleaf on Evidence
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
Page 201 U. S. 75
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
Page 201 U. S. 76
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
Fourth 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 Fourteenth Amendment, against
unlawful discrimination. Gulf &c. Railroad Company v. Ellis, 165 U. S. 150, 165 U. S. 154,
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 Fourth 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,
Page 201 U. S. 77
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 Brown, 72 Missouri 83; Shaftsbury v. Arrowsmith, 4
Ves. 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 examination of the books of a
adverted, we do not wish to be understood as holding that an examination of the books of a

corporation, if duly authorized by act of Congress, would constitute an unreasonable search
and seizure within the Fourth Amendment.
But this objection to the subpoena does not go to the validity of the order remanding the
petitioner, which is, therefore
Affirmed.
MR. JUSTICE HARLAN, concurring:
I concur entirely in what is said in the opinion of the court
Page 201 U. S. 78
in reference to the powers and functions of the grand jury and as to the scope of the Fifth
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 Fourth Amendment, which declares
that
"[t]he 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 subpoena
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 Anti-Trust 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 Fourth 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
p , , , p p p
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
Page 201 U. S. 79
proceeding in its work under the orders of the court, can plead the immunity given by the
Fourth 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 Fourth 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
Fourth 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 Anti-Trust Act
of 1890. 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 Anti-Trust 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
Page 201 U. S. 80
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
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 Fourth 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
Page 201 U. S. 81
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
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, instead 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 determine, 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
Page 201 U. S. 82
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 Fourth 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
Fourth 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 Fourth 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 Fourth 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 Fifth Amendment they cannot plead the
corporations cannot plead the immunity of the Fifth Amendment, they cannot plead the
immunity of the Fourth 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, Constitutional Lim., 6th ed.
364), and in Boyd v. United States, 116 U. S. 616, a relation between the Fourth
Amendment and the Fifth Amendment was declared. It was said the amendments throw
great light on each other,
"for the 'unreasonable searches and seizures' condemned
Page 201 U. S. 83
in the Fourth 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 Fifth
Amendment; and compelling a man 'in a criminal case to be a witness against himself,'
which is condemned in the Fifth Amendment, throws light on the question as to what is an
'unreasonable search and seizure' within the meaning of the Fourth 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 Fourth Amendment receives illumination from the Fifth, 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 Fourth
Amendment than they can of the Fifth.
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 protection
against both the nation and the several States, with the holding that the protection
accorded by the Fifth 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 today,
seem to be ignored or depreciated The immunities and protection of articles 4 5 and 14
seem to be ignored or depreciated. The immunities and protection of articles 4, 5, and 14
Page 201 U. S. 84
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 Pacific Railroad, 118 U. S. 394, 118 U. S. 396, Mr. Chief
Justice Waite said:
"The court does not wish to hear argument on the question whether the provision in the
Fourteenth 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 Mining Company v. Pennsylvania, 125 U. S. 181; Missouri Pacific
Railway Company v. Mackey, 127 U. S. 205; Minneapolis & St. Louis Railway Company
v. Beckwith, 129 U. S. 26; Charlotte &c. Railroad v. Gibbes, 142 U. S. 386; Monongahela
Navigation Company v. United States, 148 U. S. 312; Gulf, Colorado & Santa Fe Ry. v.
Ellis, 165 U. S. 150, 165 U. S. 154
Page 201 U. S. 85
and cases cited; Chicago, Burlington & Quincy Railroad Company v. Chicago, 166 U. S.
; g , g Q y p y g ,
226.
These decisions were under the Fourteenth Amendment; but if the word "person" in that
amendment includes corporations, it also includes corporations when used in the Fourth
and Fifth Amendments.
By the Fourth 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. Wheeler, 130 U. S. 630, and is entitled to the benefit of the Indian
depredation acts. United States v. Northwestern Express Co., 164 U. S. 686. 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, 29 U. S. 562:
"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, 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. 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. 24 U.
S. 412):
"The mischief intended to be reached by the statute is the
Page 201 U. S. 86
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
p p , p q 73
establishes that they are so deemed within the purview of penal statutes. Lord Coke, there,
in commenting on the statute of 31 Eliz. c. 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 Fourth
and Fifth 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 bylaws 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. "
Page 201 U. S. 87
"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, Book I, 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."
In 2 Kent *300, the author says: "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, it was held that:
"Without doubt, the legislature are the 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
Page 201 U. S. 88
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 Fourth and Fifth 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, arose under the Revenue Acts, and the applicability of the Fourth and Fifth
Amendments was sustained. In that case is an elaborate opinion by Mr. Justice Bradley,
speaking for the Court, in which the origin of the Fourth and Fifth 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
adherence to the underlying thought of protection expressed in them strenuously insisted

upon. I quote his words (p. 116 U. S. 635):
"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,
Page 201 U. S. 89
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, 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.
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3/5/2021 Hale v. Henkel :: 201 U.S.

43 (1906) :: Justia US Supreme Court Center

Hale v. Henkel, 201 U.S. 43 (1906)

U.S. Supreme Court

Argued January 4, 5, 1906

Decided March 12, 1906

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF NEW YORK

Franchises of a corporation chartered by a State are, so far as they involve questions of

"testify and give evidence

1. All understandings, agreements, arrangements, or contracts, whether evidenced by

4. Any agreements or contracts, or arrangements, however evidenced, between

thereof, no person could be prosecuted or subjected to any penalty or forfeiture on account

Third. Because they might tend to incriminate him.

MR. JUSTICE BROWN delivered the opinion of the court:

1. The appellant justifies his action in refusing to answer the

tend to criminate him.

We are pointed to no case, however, holding that a grand jury

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

His charge contains a thorough discussion of the whole subject.

by accusers, marshaled in legal array, should, on full investigation, be secure in that

or upon the evidence of witnesses, given before them.

"no person shall be prosecuted or be subjected to any penalty or forfeiture for or on

"that a compulsory production of a man's private papers to establish a criminal charge

render invalid legislation or judicial procedure having such effect."

4. Although, for the reasons above stated, we are of the

adverted, we do not wish to be understood as holding that an examination of the books of a

MR. JUSTICE HARLAN, concurring:

I concur entirely in what is said in the opinion of the court

MR. JUSTICE McKENNA, concurring:

"for the 'unreasonable searches and seizures' condemned

MR. JUSTICE BREWER, dissenting:

seem to be ignored or depreciated. The immunities and protection of articles 4, 5, and 14

"Article 5. No person . . . shall be compelled in any criminal case to be a witness against

As repeatedly held, a corporation is a citizen of a State for purposes of jurisdiction of

"The great object of an incorporation is to bestow the character and properties of

"The mischief intended to be reached by the statute is the

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

adherence to the underlying thought of protection expressed in them strenuously insisted

I am authorized to say that the CHIEF JUSTICE concurs in these views.

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