holding that, “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”
How later courts described this case
- holding that, “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”
- holding that while a grand jury subpoena for the production of books and papers may implicate the Fourth Amendment, when presented with a challenge to such a subpoena a court need only determine whether the request is “far too sweeping in its terms to be regarded as reasonable.”
- finding that the “extent of this immunity [required to satisfy the Fifth Amendment] was fully considered by this court in Counselman . . .,” leading to the passage of the immunity statute upheld in Brown v. Walker, supra
- explaining presentments — charges made by a Grand Jury from it’s own knowledge or observations without any accusation from the prosecutor — have largely fallen into disuse in this country
Written by the judges who cited it.
Later courts went against this
Reported overruled in part, on other grounds by Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964) — not on the Supreme Court's list
201 U.S. 43, 59-60, 65 (1906), overruled on other grounds by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52
Supreme Court of the United StatesJun 15, 196416 citing opinionsother groundsin partunconfirmed confidenceRead it
The opinion
Mr. Justice McKenna,
also 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 tele *80 grams 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 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 moré expressive to distinguish a subpoena from a search warrant. Can a sub- ' poena lose this essential distinction from a. search warrant by thé 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 thémselves — 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 excépt 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 *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 their 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 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 of a grand jury and yofi 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 pre- • ceded 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 com- ’ pany 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 tes *82 timony was not material or not shown to be material. Besides, after objection made to the laying of a foundation, qomplaint 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 thip 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 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’ con *83 demned 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 illiimination 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.