*1 v. UNITED STATES. WILSON 361 Syllabus. 221 U. S.
should be and there instituted, was no violation rights Federal Constitution in adjudging the of the plain tiffs Kentucky Union accordingly. Co. v. Kentucky, S., pp. 157; U. 156, Terry Anderson, v. U. S. 628. judgment Supreme Court Louisiana
affirmed.
Judgment affirmed. WILSON v. UNITED STATES.
SAME SAME.
SAME SAME. ERROR TO, AND APPEALS THE OF FROM, CIRCUIT COURT "THE UNITED FOR THE OF STATES DISTRICT SOUTHERN. (cid:127) YORK. NEW 759, 760, Argued 2, 3, April 15, Nos. 1911. Decided 1911. .March Henkel, Hale v. properly to effect a witness followed subpoenaed propounded questions by cannot refuse to answer grand jury ground specific charge on there is or no cause pending. validity
The ad sub- clause is essential to the of a not testificandum poena tecum, papers having duces and the one them may testimony. under his independently control be of his enforced subpoena ad Where duces tecum contains the usüal testificandum necessary clause it person producing papers is not to have the may proved by sworn as a papers witness. The be others. responding subpoena why of one to a ducestecum to show produce need not depend clause, does on the ad testificandum but is requirement produce. incidental Corporate implies amenability legal sub- powers, and a existence poena duces corporation. . tecum be to a directed duty
A records, papers under books'and possession they may properly when required in the adminis- justice. tration of ... TERM, 1910. 221 U S.
Syllabus. tecum responding duces from is not relieved A provisions reqüired reason of the producing documents from *2 Stat., or of the Sixth Amendment those 877 and of §§ 829/Rev. the Constitution. suitably specific properly limited tecum, duces is subpoena which A which, as documents scope, and for the in its calls party directed, is the against lawful to whom the writ their owner produced, not violate its is entitled to have does procuring issuance Amend- provisions seizure of the Fourth search and the .unreasonable testifying against privilege against the constitutional ment, and personal his benefit an officer of cannot be raised for himself having possession. in his corporation the documents corporation is in effect command to command to a A lawful may punished contempt for for of its officers; disobedience who terms. corporation protected by pro- of a the self-incrimination
An officer against compulsory production the Fifth Amendment of- visions papers, privilege private books and but this does not extend of his possession. corporation in his to books corporation produce cannot refuse to of a officer of a documents An' simply ground incriminate him corporation on would . signed them, himself or and this if indict- he wrote even because pending against him. ments
Physical custody incriminating documents does protect pf against compulsory custodian their production. private papers as to cannot be maintained. exists power State, authority of'Congress the visitatorial Under corporate subject Congress, over activities within the domain papers properly must its books submit whenever ground resist so to do and cannot on the of self-incrimina- Required prevent be to even if detect violations of tion, inquiry Henkel, 201 U. S. Hale v. law. withhold its save-it, of a books to if
An officer cannot law, protect implicated .himself, he its violation from dis- although may closures, decline to' utter on the witness stand self-incriminating word. grand juijy corporate cannot from
An officer withhold documents in against inquiry possession corpora- because the was directed tion itself.
Notwithstanding protection English as to extent of views corporations
self-incrimination duties officersthereof Are our laws. be determined' STATES, WILSON v. UNITED Argument for Plaintiff Appellant. in Error and The facts, which involve the validity of a subpoena duces tecum issued to a and the corporation, right of officer thereof refuse to the documents re- quired by such on ground they tended to incriminate are stated in him, opinion.
Mr. B. Stanchfield, John with whom Mr. Louis S. Levy and Mr. William M. Parke were on the for brief, plaintiff appellant: error and
The disclosure of the contents of the letter press copy book, produced by appellant before the grand jury, would tend to incriminate plaintiff error; contents of the letter book press copy would form a link in the chain of exposing evidence him to indictment and to conviction on the two indictments previously found him in the *3 same re Chapman, court. In 153 Fed. Rep. In 371; re 496; Fed. Hale, Rep. C., 139 aff’d 201 U. S. Fort 439; S. Buchanan, Rep. 113 Fed. 156. The of a witness against producing books and subpoena under a duces papers tecum the production when thereof would tend to incriminate is even him, more fully protected than his privilege to make refusing answer orally under an ordinary subpoena, his oral when answer tend to would incriminate him; because the former priv- is ilege protected by both the and Fifth Amend- Fourth while latter is ments, protected the Fifth by Amend- £the Boyd ment v. United only. States, 616; United Collins, States v. 146 Fed. United 555; States v. Rep. 142 Rep. Fed. Armour, 808.
An officer of a corporation, actually who holds the n physical possession, custody and. control of books or papers corporation of the which he required by sub- duces tecum poena entitled to same produce, pro- the contents thereof exposing tection which would tend to incriminate as if thé books and him, papers re 139 Hale, own. In Fed. S. absolutely Rep. 496; C., TERM, 1910. 364 Appellant. 221 TJ.S. in Error Plaintiff Argument for Rep. Fed. Chapman, Ex 153 parte 43; S. aff’d, U. 371. long upheld set forth have been above principles'
The and Fifth Amend Fourth England. the courts by guaranteed- which was right continued merely ments has always jéal law, common by the Dr. King claimed. See guarded properly when ously Granatelli, Green v. Purnell, Blackstone, 37; W. (N. S.), Trials State every person natural rights guaranteed by Fifth Amendments are. substantial,
Fourth and and cannot be technical, by formal and defeated merely n which the single fictional distinction indivi's- is deemed to act or to be proceeded natural person able. and not indi- capacity, representative capacity. vidual officer, of a corporation possession
An of a who is in book containing a record made under his .tending of his acts and statements and direction own criminal compelled pro- incriminate cannot be -in a him, permit himself to the in- ceeding against (either directly by being forced of such books spection to some other officer of the corpora- the book over to turn of a duces tecum addressed to tion) means directing the the book question. a possessory
A tecum is writ. It searches subpoena duces at possession all and papers books witness *4 eye and in subpoena the time of. the service subpoena and are specified the law seizes such Bank v. Hilliard, of-the witness. 5 then the possession v. United 201 S. States, Nelson U. (N. Y.), 153, 158; Cowen N. H. 134. Young, v. 37 115, 116; 92, Hall corpora- duces addressed subpoena tecum (cid:127) Henkel, and void. Hale v. 201 was only tion unauthorized Rep. Trust Fed. Co., Continental 15 43; U. Wertheim S. WILSON v. UNITED' STATES. 365 Argument 221-U. S. for the United States.
716; Crowther v. L. Appleby, R. 9 C. P. 27; Nelson v. States, 92, United 115; Wigmore on Evidence, United States v. 17 2200; Ralston, Rep. Fed. 903; Re § Shaw, 172 Fed. Rep. The cases cited Govern ment do not sustain its contention.
A subpoena addressed to a corporation merely would be entirely subversive of the right guaranteed by the and the English Rights. Constitution Bill of Judge dietum of Lacombe in United Stales v. Am- erican Tobacco 146 Co., Fed. Rep. and the decision of re judge same In American Sugar Co., Rep. 178 Fed. 109, upholding the subpoena of a validity to a addressed corporation, and not to any thereof, officer are not accord with the spirit decisions, Federal the Constitu- tion of the States, rights United and the of an individual guaranteed English since the Bill Rights.
The Solicitor General, Henry with whom Mr. E. Colton, , Special Assistant General, was on. the Attorney brief, for the United States:
The grand jury engaged was gave in an inquiry it authority to summon witnesses, to call for the production of books and papers. Henkel, Hale S. 43. U.
The subpoena duces tecum was a valid process. United States v. Am. 557; Tobacco Co., Rep. In re Am. Fed. Sugar Co., Fed. Rep. 109; Consolidated Rendering Co. v. U. Vermont, 207 S. 541. objection
No to the- subpoena having been made at any prior stage of proceedings, objection such cannot be made for the first time in this court.
The search and seizure involved in the duces subpoena since, tecum were not unreasonable, was tp specific as the’peEson whom it directed .what produced thereunder, was. and was issued securing for lawful purpose material in an testimony *5 1910.
366 the Court. 221 U. S. Opinion^óf grand which the then investigation jury engaged. were . Henkel, 43; 201 S. McAlister Henkel, Hale v. U. v. 201 U. S 90; v. Rendering Vermont, Consolidated 207 U. S. Co. 541; v. Am. Tobacco Co., States Fed. Rep. United 146 required by was not the subpoena, Wilson nor “to proceedings thereon, be a witness him called for a self.” book which belonged Telegraph Company, the United Wireless which had custody into an officer of physical simply come recalled custody from such company, action of the' board of He formal directors. was not possession himself of his protecting own books nor refusing to be witness himself, but obstruct and its other than ing company representatives, him of an performance order of the court for self, of the company, of books Missouri, v. perform. Davis, 666; State 108 willing 203; Henwood, 10 Dak. v. Donovan, People v. N. 123 State State 317; Farnum, 165; v. 73 S. Car. v. Michigan, State R. Va.), 639; E. L. & N. R. Co. v. Rep. (W. 69 S. Davis, Rep. 21 McElree v. Commonwealth, 239; Law Ky. Darlin Pray Co., App. Pa. St. v. Blanchard 95 Div. 593; 187 gton, Coombs, 532; Y. Ex Y.) 423; parte v. 158 N. (N. People (Nev.) 737; Langdon People, Pac. v. 133 Hedden, Rep. 90 Paine, 382; Murphy, 612; Bradshaw v. 7 Car. & Illinois, P. Dowling’s Perry Gibson, 2 C. Moseley 364; Evans v. 1 Barrett, McMullan Ellis, 48; & Sherman Adolphus Co., United States v. Armour & Fed. Car.), 96; (S. Rep. 808. Hughes opinion delivered the court.
Mr. Justice question. involve the same first is three cases These a,'writ Court a judgment to review of error to the Circuit for contempt. error The sec- committing plaintiff .in an order the Circuit Court from dis- appeal ond missing out after of habeas sued such com- corpus a writ UNITED
WILSON STATES. of the Court. mitment. The third is an from an appeal dismissing order *6 a writ of habeas which a corpus by discharge sought from a later commitment for a similar contempt.
The contempt consisted in the refusal of the plaintiff in error appellant, Christopher Wilson, C. to permit and grand of inspection by'a jury letter press copy books in his possession: The books belonged to a of president which he was to be required produced and duces subpoena tecum. by
The circumstances were these: The em- grand jury pannelled Circuit Court time for some had been into inquiring alleged violations of of and 5480 §§ States United Statutes Wilson by Revised others. and Wilson was the of president Wireless Telegraph United Company, organized under the laws of the of Maine. August 3, 1910, State On the grand jury found two indictments him officers, and certain directors of this corporation, and stockholders the one charging use of the mails fraudulent and other a conspiracy for such use. The grand jury its investigations continued 7, on October 1910, and duces tecum was issued (set forth the margin1), which was directed 1The President of the United States of America to United Wireless
Telegraph Company, Y., 42 Broadway, York, Greeting: N. New
[seal] you, command That being We all business and excuses laid aside you appear Inquest Body People before the Grand of of-the United States of America for the Southern of York, District New at a Circuit Court be held in the United States Court House and Post Building, Borough Manhattan, City York, Office of of New on the day 10th October, you- at o’clock in the forenoon, and that produce place aforesaid, at the following: time and press copy
Letter Telegraph books of United Wireless Company containing copies telegrams signed purporting of letters and or to be signed by company during May the President of said the months of June, 1909; regard alleged to an violation of the statutes of by United States C. C. Wilson. you a failure to
And for the aforesaid documents will be TERM, 1910. the Court. ap- its Telegraph Company, requiring Wireless United production by and the pearance grand jury before the “containing press copy company letter book^ telegrams signed purporting letters copies.of during the company President signed the. by said alleged to ah 1909;. regard May June, month of States C. C. violation of the statutes the United Wilson.” (cid:127) upon service upon the company Service was' made Wilson, secretary two as president, Oil before day appeared directors. the return Wilson grand when not jury, response questions, and in under he answered the call Wire- oath, United stated answer further Telegraph Company less and declined *7 sworn, been sworn; having was and questions until he and produced or the company whether being asked a written state- for, letter books he press copy called filed he describing after which, subpoena, ment in said: the months of press copy “III. Said letter books for in June, 1909, subpoena during May and said mentioned June, 1909, kept regularly May months of and were said corporation, office as of my President said and if not entirely, me for most regularly part, used and of only, copies other my personal me contained and and of copies' correspondence as well as correspondence, affairs of relating corporation. the business said and For the of the time since greater part during May and and during all the time the last June, 1909, month and and guilty contempt Court, penalties of and liable deemed to the of. (cid:127) law. Witness, Harlan, John M. Honorable Senior Associate Justice States, Borough Manhattan, City of- the United at of New day October, York, the 7th Shields, John A. Henby Wise, Clerk. . . Attorney. S.U. WILSON UNITED STATES. Opinion of S. U. Court. have been
more, copy letter books still are press said and control, and as my custody against any possession, and or employé corporation, any other officer or other said I person, possession, custody to such have entitled I have not at control. not secure time any did letter possession press copy anticipa- books held said any that for their subpoena. tion be would me upon or or for the corporation, purpose served said evading subpoena legal process other might be me or corporation.” served said alleged He that he the "C. C. Wilson” mentioned as the one against whom the inquiry was directed, and described pending indictments. He that press stated letter books were essential copy preparation defense he was them using for that that he purpose; that the believed matters therein contained him; would tend incriminate that he compelled, not be directly "should or indirectly, furnish .to or produce said letter press copy books for by called subpoena,” testify nor said regard contents, their' permit nor them to him. He used added books with him, but that he declined deliver them grand jury, insisting that his refusal was in entire good faith.
The grand jury presented the matter to the court and Wilson was adjudged to be in contempt was com- *8 to the custody mitted of the marshal "until he shall cease to obstruct the impede, and Wireless United Telegraph Company from complying with the subpoena duces tecum to attached the above- presentment, mentioned or other- purge wise from himself this contempt.” is the This judgment which is the subject review in the first case (No. 759).
Wilson petitioned then for a writ' of habeas corpus al- that leging illegal the commitment was for the reasons that (1) jurisdiction the court was without to entertain
vol. ccXxi—24 221 U. of the Court. S. “cause” (2) that there was no or contempt,
the charge in the court the States pending “action” between United in in which the any subpoena, the party mentioned and give evidence, petitioner required testify could in exercise of its was not the (3) grand jury that the investigation set the authority prosecuting legitimate to the powers being presentment, limited out in particular per- specific charges against investigation illegal, was sons, (4) subpoena that unauthorized and it not with 877 of comply because and void § d.id required Statutes in that States Revised United attend, not to and did not appear and person addressed generally” testify addressed “to require- person it was not States; because issued behalf United and to the cor- court, addressed pursuant to an order was officer, individual or mention without poration in the prosecution apprise the not defendant and would witness who precise of the name of might follow him. have might appeared reiterating It substance' what urged, further was should grand jury, petitioner said contempt subpoena was directed not be held generally the corporation; and him, merely but rights in violation of his under proceedings Constitution of Amendments and Fifth Fourth States. United being return made writ issued on and petitioner remanded, was dismissed commitment this court appeal from this was taken order (No. 760). another duces
Later, 28, 1910, on October addressed to the form, issued in the tecum was same calling for the" Telegraph Company, Wireless United Wilson It was on the appellant same books. served the company. five secretary on the directors also grand jury, before the day, they appeared return On-the *9 v. UNITED WILSON STATES. of the Court. U. S. having possession
the then a appellant Wilson subpoena described, letter book which the but press copy produced made it was not before the upon being demand The foreman grand inspection. for their jurors then the books on the production following the day, directed Wilson still persons again appeared, when the same hav- the the demand and re-' ing mentioned, book above and ' fusal were repeated. Thereupon grand through the the District At- jury an oral the torney presentment court, pres- made ence of Wilson and the been served others who had with subpoena, its officers and and in contempt, respect directors were and with specifically that he from “preventing Wilson with the On behalf of the directors complying process.” made before the court it was stated that efforts had production grand jury, to obtain the books for before the declined to surrender them. They but Wilson had presented meeting minutes of of the board di- rectors held on that at which these day directors, con- stituting majority board, passed had a resolution demanding press Wilson the the letter possession copy books for by subpoena “for the called same before the Grand court Federal Jury.” again adjudged contempt Wilson to be ordered his and “until he delivers to the United Wireless commitment called for Telegraph Company books said said subpoena, impede process ceases to obstruct himself Court, of this of this con- purge or otherwise was then tempt.” corpus A-writ of habeas issued petition subpoena alleging objections the same petition forth in the for set commitment which writ was dismissed the former writ. On return the 788). petitioner appealed (No. objections validity We first consider then privilege. claim 191,0. Opinion of the Court. *10 jurisdiction ground to the on the objections
The charge” “specific no “cause” or be- pending there was and answered in Hale v. grand jury made fore no 43, require further examina- Henkel, 201 U. S. tion. ' whether the presented subpoena is also question But the it void, hence because was not unauthorized, was to a It individual, corporation. to an but directed unwarranted, form unusual in that urged that its was to attend testify, did not one and to but require it corporation, give directed a could not oral simply books. testimony, to,produce duces subpoena ordinarily a' tecum contains the While clause, this as essen regarded ad cannot be testificandum power compel production to its validity; tial is, of not limited to those cases where course, of documents testimony it sought merely supplement aid production person required produce them. it independently testimony, be enforced of his duces tecum long subpoena was since that the writ of held for this As was Lord Ellen- adquate purpose. was said borough Amey East, v. 9 “The re Long, competent compel production sort to means written, oral, testimony as well as seems essential of a commoi very \&aw, existence and Court of constitution which receives and acts both evi descriptions dence, possibly proceed and could not due effect with subpoena without duces tecum con them.” Where tains the usual ad still clause, is not testificandum necessary party requiring for the to have person producing documents sworn as witness. , They may proved Wigmore others. 3 on Evidence 1894, 2200; Dale, Davis v. M. & M. v. 514; Summers §§ 2 & 1 Moseley, 477; Smith, Cr. M. Rush v. C. M. & 94; R. 1 Perry Gibson, 48; v. & E. Martin Williams, A. 18 Alabama, 190; Moore, Car.), 550; 3 (S. Brev. Treasurer
WILSON v. UNITED STATES. of the Court. (S. Sherman v. Barrett, McMull. Car.), 163; Aiken v. Martin, Paige, 499; Note, Rep. Fed.
“I always thought;” J., said Parke, Perry v. Gibson, duces supra, “that tecum had two distinct and that objects, might one be enforced without In Summers v. Moseley, supra, other.” the function of carefully was considered and judgment the writ was rendered after consultation with the judges of the other argued It courts. was that “the duces part tecum .only compulsory writ is ad ancillary testificandum part.” But the reasoning the court negatived the con- and it'was ruled that tention; person subpoenaed *11 produce to “compellable the in possession document his being sworn, calling upon without the him to pro- party having duce it not occasion to ask him any question.” B., origin said: “The duces Bayley, subpoena tecum- distinctly It has appear. part does not been said on the it of defendant that was not introduced or the known in feign till of Charles the practice Second, and it may the in its duces present subpoena be that tecum form or period; not known made use of until that but no doubt can be entertained that there must have been some subpoena similar to the duces tecum to process compel the of production documents, only time, not before that but statute of the 5th of even before the Elizabeth. Prior statute, power to that there must have been a utterly it have been (for impossible carry crown would to of justice power) on the administration without such to justice in courts of of persons the attendance require and the of capable giving evidence, of docu- to cause, though possession ments material purpose for- that not be stranger. process might I but call tecum,, may subpcena called a duces it a subpoena upon pursuance called such produce; party to simply produce, but to would do process witness, not as a I can doubt that not, or if he did entertain no not, so Court., U. S. party to the for whom open been he was have would ensuing the court application called to make contempt him for in not producing punish term to subpoena. to such he in obedience Whether document ad to be not true testificandum, could sworn but require questions to such as the court should answer to make him touching possession custody demand of question. Perhaps might; now the document, clearly ©pinion right but we that hé has no to re- inte) party bringing that a him court for the mere quire should him purpose producing document have sworn way such a to make him a in the cause, witness .as may happen when it often that he is a mere depository, nothing and knows the documents of he has the custody.”
Treating requirement produce separable from testify requirement .generally what one knows in cause, it follows that the latter may be omitted from invalidating without the former. This impair course does not any right either of the opposing party person or of the responding the°subpoena. The latter still have the opportunity which he has (Aiken Martin, supra), held entitled of showing why under oath the reasons he should not compelled Fpr this the document: does not depend clause, ad but is incident testificandum0 *12 requirement produce.
Where the documents of a corporation sought the ar§ practice.has been to subpoena the officer who has them in his custody. But there would seem to why no reason be the subpoena duces«tecum should not be directed to the corporation itself. Corporate implies existence amen- ability legal process. The corporation may be sued; it may compelled by mandamus, be restrained in- junction, directed to it. Possessing privileges of a legal' (cid:127) entity, having records, books and papers, it'is’under v. UNITED STATES.
WILSON 375 of Court. them duty when be re- they may properly of justice. administration quired There is no in the appellant's merit contention with of respect of application the United States § Revised Statutes. of provision the section that required on part witnesses of the United States shall subpoenaed testify be “to attend on generally their behalf, depart not'<to court without leave thereof, is in attorney,” or of the district of the interest convenient i administration economical and has no bearing upon questions here involved. It said that, under the of form writ used in this case, the defendant in prose- cution an might indictment grand follow apprised would not jury be the name the precise might appeared against witness-who have him, and 829§ Revised Statutes the Sixth Amendment of the Constitution are Federal invoked. The contention ignores fact the writ calls for books and for oral and, aside from testimony; this, neither the constitutional nor provision the statute accords the to be apprised of the names of the witnesses appeared who before the. grand jury. Even cases and other capital treason offenses, 1033 of the under Revised re- Statutes, § quired list of is only witnesses those who are produced Logan on trial. v. United U. States, 144 S. thp 263, 304; United States v. Curtis, Mason, 232; Balliet Rep. v. United 129 Fed. States, the process
Nor was invalid under the Fourth Amend- Boyd ment. The rulé laid down the case of v. United U. States, 616, applicable S. is not In here. that case, goods information for the forfeiture of under the Cus- toms Act c. 22, 1874, 187, of June 18 Stat. it was held that “of enforced the private books and papers” sought owner of the goods be for- feited, act, of 5 provisions under the was “com- § him to pelling be witness himself within the
Opinion of the Court. of the Fifth Amendment” and meaning was also “the of a search seizure —and an equivalent unreasonable and seizure—within the meaning search of the Fourth But no Amendment.” there is unreasonable search and seizure, writ, suitably specific when a and properly limited scope, in its calls for the of documents which, their lawful to whom the owner writ is directed, procuring its party issuance entitled to pro- have the present case, duced. In process was definite in its requirements, and reasonable was not to the open it made in Hale v. objection Henkel, supra (pp. Ad- 76, 77). to the corporation, designed dressed to enforce its no ground appears upon which the duty, corporation could resisted the writ. And corporation have made no ob- jection any appellant sort. did not attempt to as- part; on its sert conduct was in antagonism far corporation, so as its attitude is A shown. ma- jority directors, including the appellant, ap- before the court and peared urged their solicitude to com- They with the writ. ply presented their formal action, n a meeting taken at of the board, in which they demanded appellant delivery of the books for production grand jury. before the
Concluding, then, was valid and imposed that its service the duty of there can be obedience, no doubt that appellant was £he likewise bound unless, with- respect the books described, he could claim a personal A privilege. com- mand to the is in effect a command to those officially who responsible for the conduct of its affairs. If they, apprised the writ directed to the corporation, prevent compliance or fail to appropriate take action within their power for the performance of corporate no duty, they, less than the corporation itself, are guilty be punished maw for contempt. disobedience principle applicable was thus stated by Chief' Justice WILSON, v. UNITED STATES. U.S. the Court. *14 624, U. S. Sellew, v. 99
Waite
Commissioners
mandamus
directed
peremptory
against
where
only
board: “As the
can
act
municipal
through
agents,
operate upon
agents through
the courts will
the
the
of the writ
has
corporation.
copy
When a
the clerk of the
it will
board,
ordered
served
be
equivalent
served on the
be
com-
corporation,
mand that
who
be members of the
persons
the
board
If
shah do what is
the members fail to
required.
obey,
guilty
may,
those
disobedience
if
necessary,
pun-
Although
ished for the
is in
contempt.
command
form
it
be enforced
those
board, may
through
it
obeyed.
whom alone
can be
.
.
. While the board
in its
proceeded against
corporate capacity,
the indi-
vidual members are
in their natural
punished
capacities
requires
for failure to do what the law
of them as
rep-
also
corporation.”
resentatives of the
See
Leavenworth
642; People
Sturtevant,
v.
For no question there can be of the character of the books here for. They called sub- were described poena as the books of the it was the corporation, and books he which, admitting possession, so with- defined of letters written copies president held. in the course of its transactions as
much a to its part documentary property, subject of its control to its when duty lawfully required judicial as its and minute proceedings, ledgers books. It was appellant’s grand statement before the said copies books contained of.his jury “personal U. S. Court. copies other as of the corre- correspondence well relating to the affairs” the cor-
spondence business 9f not personal demanded; But his letters were poration. reach; as to these these the not seek did is presented. Plainly no of violation of question his private personal not make these books could letters in them. Had by keeping copies personal books merely sought protect personal cor- appellant from respondence examination, would have been provided, supervision to have difficult under for the withdrawal of such letters from court, scrutiny. hearing Indeed, presentment, on second *15 their from the books. the suggested court removal But protection against was not content the appellant with private of his he the production letters; privilege claimed the and the corporate to books withhold documents to with corporate respect which matters related and in his the capacity which he as executive officer had acted that is the here corporation. right of the And asserted. at once apparent It is that the mere fact that the ap- wrote, himself or the official pellant signed, letters copied books, into the neither nor enlarged his conditioned privilege. private Where one’s documents would tend him, to incriminate the privilege although exists they actually by person. were written another where an And a corporation possession corporate officer of has records oft which his there crime, ground upon is no which it disclose produce can be will be forced to them said if the by entries another, were but them if made withhold the made entries were himself. books are no more his books in the latter case' private than in the if have been former; pursuant held authority corporation, of the authority subject to termina- In both tion. cases tends to and criminate; requiring produce compels if him to him to be a witness in the one himself case it so against equally does in the v. UNITED STATES. WILSON Court. There facts which serve sharpen are other other. Thus, but not determinative. privilege,
claim against two pending appellant, there indictments grand jury before the was also directed inquiry aiid If, however, him. with re- the'privilege existed hands, to these books in would have spect prior there been no available indictments likewise had investigation the immediate violations concerned although others. holds law person required yet. not pursuit of the has incriminating it is begun; tendency disclosure pendency prosecution against not the the wit- which the Counselman v. upon depends. ness Hitchcock, U. S. appel-
We come then to the broader contention argument of his counsel: "An lant, stated —thus corporation holds, who actually physical officer of control possession, custody papers of books required by which he is duces produce, to the same protection tecum entitled tend, exposing the contents thereof would papers as if books were ab- him, to incriminate is, power his own.” That of the courts solutely production depends their their character require duty books corporate *16 examination, the particular them to but submit they be If are in the they may in which custody found. they of an officer criminal custody whose actual conduct argument his disclose, as this have then, would would it/ inviolable, and, maintaining must deemed possession alone will insure protection absolute control which the being against him in a criminal proceed- from their used authority may the whose defy he ing, against the visitatorial fiduciary or he assert officer and authority the the Government power State, of impassable barrier. enforcing laws, in 1010.
Opinion of the Court. of physical incriminating the documents custody But not of the protect itself custodian their does production. question still remains with compulsory respect the nature of the documents capacity in which are It may yet appear they that held. them, subjects a character which to the scrutiny de- that the custodian has voluntarily manded and assumed privilege. overrides claim This duty was clearly Boyd Case where the fact that implied were the papers private papers involved claimant emphasized. Thus, was in constantly public case of documents, records official made or kept in the ad- fact ministration of actual public office, possession/ custody justify of lawful would not officer resist- ing inspection, though even was made by record him- supply self and would of his criminal evidence derelic- n tion. If has public moneys embezzled and falsified the public accounts he cannot seal his official records and withhold them the prosecuting from plea authorities on of constitutional self-crimination. principle applies only to public documents in public offices, but also to required by law to be kept records that there order be suitable information of transac- tions which subjects are the appropriate governmental regulation enforcement validly restrictions qxists There the privilege, which private established. papers, cannot be maintained. n There are abundant illustrations the decisions. Thus Murphy, C. & Bradshaw P. 612, it was that a held vestry clerk who as a called witness not on could ground might that it incriminate himself object to the production of vestry books kept statute, under George III, chapter 69, In State 73 Car. Farnum, S. § 165, it appeared legislative committee appointed to investigate the affairs of the Dispens State ary, it was provided have should access
WILSON v. UNITED 381 STATES. Opinion of the Court. 221 S.U. or of officer or any employé institution
all books dispenser the state anticipation In removed thereof. defending his action on the files, books from certain matter which the com private plea they contained inspect. The court that it mittee no ruled duty keep books, officer to was the “obvious of his relating to the business letters other documents manner in which he has discharged office and public where the place duties to discharge_its failed charged which he is conducted, subject business with of the committees by any appointed examination Assembly, application for General manda him to this obvious compel perform public duty, mus to it is essential for court to ascertain the facts in whether there has been an actual removal form itself or other public property and refusal public documents them for examination.” In State v. Donovan, to restore druggist Dak. was a who 10 defendant N. all keep statute record of sales of intoxi
required by him, made liquors subject should cating at reasonable It was times. that' inspection held public self-crimination was not available to kept law, to the books under the for respect him with documents, which the was re “public defendant private uses, not for his but for the benefit keep, quired for similar public inspection.” On public, Davis, v. 108 the court Missouri, 666, State grounds requiring druggists a statute to preserve sustained the. them they compounded prescriptions S. E. Davis, Rep. when See also State v. 69 required. court 532; Y. L. & (W. Va.) 639; People Coombs, v. 158 N. N. Commonwealth, Rep. (Ky.) 167; R. Co. v. 51 S. W. R. Iowa, 580; Iowa, State v. Smith, Cummins, State v. 74 76 133; People Henwood, Michigan, 317; Langdon People, Illinois, 382. ground this class fundamental decision
Opinion of the Court. cases, where, by is that virtue their of character the and law the applicable them, rules of to books papers and are subject the demanding held to examination authority, the no to privilege custodian has refuse production al- their to In though contents criminate him. assuming tend their he has custody accepted the obligation incident to permit inspection. (cid:127) is What then the status of the a papers books and of corporation, which has not a been as mere in- created strumentality of has government, pur- but been formed agreement voluntary suant to hence is called corporation? They private public are in the records public that relate transactions, sense to in or, particular of requirements,' open general absence to inspection or must be kept special or filed manner. have to They reference business for the transacted bene- group fit of the of whose association has the individuals advantage corporate organization. corporate of But the form of business with its activity, privileges, chartered raises authority government a distinction when the ex-, demands examination of books. demand, That pressed lawful process, confining requirements within the limits imposes which reason in the circum- case, stances has no to It refuse. cannot resist production upon ground Although object self-crimination. inquiry may be to detect the abuses it has committed, to discover its of law violations and-to inflict punishment forfeiture otherwise, of franchises or it must submit its books and papers duly authority constituted when demand is suitably This the reservation of made. involved State, power visitatorial authority of the National Government where the corporate ac- a e subject tivities in the powers domain Congres-. view, it, which support
This reasons have so
WILSON v. UNITED STATES. of the Court. U. S. Hale by this court case of recently stated unnecessary do more than to that Henkel, supra, 75): (pp. 74, there refer to what was said was an that the officer of the cor- “Conceding witness that he investigation, and poration was. under entitled with rights respect assert opinion its books we are of the papers, particular a clear in this between there is distinction the latter has corporation, and individual and no refuse to submit its books for an papers examination at the suit of the State. individúa! *19 as rights his constitutional a citizen. He is upon
stand his business his private way. to on own carry entitled contract, duty He no to power His to is unlimited. owes neighbors divulge business, the to his or to State or to his an far it investigation, may to so as' open his tend doors him. He no such duty State, to criminate owes therefrom, beyond receives the nothing protec- since he rights tion his life His are such as ex- property. of and antecedent long organ- the law the by isted land the be taken him State, only by ization of can and from law, due of with the process and accordance Constitu- in. rights tion. his are a refusal incriminate him- Ambng and himself self, immunity property and of from warrant except law. He arrest.or seizure under.a long owes so as does not nothing trespass to the public rights. their corporation other is. creature “Upon hand, presumed It to be for the incorporated State. certain benefit of the It receives public. privileges special subject them franchises, and laws holds State its' charter. Its are powers the limitations of no law. It can make contract not by limited aúthorized ¿ fights corporation only its charter. Its to act as obeys the of its creation. preserved long to it so as it laws legislature investigate" There is a reserved
Opinion of the Court. its it has out whether exceeded find its contracts and anomaly to hold strange be a It would powers. make use of corporation State, having chartered of its sover- in the exercise franchises, could certain employed, been how these franchises had eignty inquire abused, pro- been and demand whether had pur- for that papers books corporate duction That an officer of a amounts to this: pose. defense a criminal violation charged which is with corporation, criminality such statute, plead proposition To state this its books. a refusal to (cid:127) may lawfully an refuse While individual answer it. an incriminating protected by unless questions to answer that a statute, corporation, not follow immunity does franchises, may refuse privileges- special with vested charged of such priv- when with abuse its to show hand ileges. Being subject sovereignty, to this
“. . . dual. right to the same see possesses General.Government have with respected as the State laws are would own in it the laws of special franchises respect to vested Government powers of the General the State. ' laws, its own are the particular vindication this by an act of as, if created same .the’ *20 intimate, however, to It is not Congress. intended corporations state power visitatorial over a general it has Rendering Vermont, Co. v. also Consolidated See tions.” Packing Arkansas, Co. v. 541; 207 U. S. Hammond 348, 349. pp. S. 322, U. subject books to the corporate the appellant
The held of mis- guilty If duty. corporation corporate books to save it; he not conduct, could withhold-its he law, of implicated in the violations could if he were . from the effect the books himself protect to not withhold of visitation power The their reserved of disclosures. if embarrassed, wholly be not seriously defeated would v. UNITED WILSON STATES. of Court. if officers in- exercise, guilty
its effective could refuse the, corporation. spection papérs of records and privilege they requires No entitléd personal to. recognition, not be a but an such a It conclusion. would rights enjoy. unjustifiable extension, personal of upon the witness They may to stand decline utter: They may single self-criminating word. demand individually them established any accusation compulsory or the testimony their oral without the aid But papers. private them of their corpora- respect visitatorial which exists with power re- books without corporate tion reaches the ofnecessity of the custodian. gard the conduct that in the case say present is it an answer to
Nor directed was not inquiry grand jury before the (cid:127) greater no appellant corporation itself. had fact that right the. reason th.e withhold books th^ That, abuses. criminal charged not with corporation was he charged, have so would corporation been if. despite inspection, compelled to submit the books shows the absence sufficiently consequences himself, personal his part basis for a claim on whether question them; depend as to not could was only, question another or not was accused. law- books were as against whether When justice. fully required in the administration became appellant president of its for the transaction its books
such held and used at all times charge, was to his business committed continuously re- the books subject direction, to its his place took If another its control. mained under personal assert no He custody yield. could would demand against any to retain the books corporate recog- bound government corporation- which the nize. English early decisions
We have overlooked *21 CCXXI—25 VOL. dissenting. 221 U.
McKenna, J., S. (Rex Purnell, our has been called W. attention 979; Tr. N. see Granatelli, Rex v. 7 State S. also 37; Bl. these Cornelius, 1210), Stra. but cannot deemed Rex the relation of the corporate duty, The controlling. officer of the discharge, as the appellant more Nothing our laws. is to be are determined the appellant perform than should demanded custody should his obligations pertaining capacity in his official books which ac- holds requirements subpoena. None cordance with subject inspection are personal papers his under the of refusing permit action, examination writ and demanded, fully books warranted his corporate of contempt. for commitment n of the Circuit Court judgment orders
Affirmed. dissenting* McKenna Me. Justice my if brethren, I am unable to concur.with a constitutional provision, of consti- application indeed purpose protection whose of provision tutional I might were not not even personal liberty, sig- involved of the Constitution opposition. application nify it States, especially personal affect may the’ United duty the most serious of the court. It is privileges, justi- consequence beyond instance, to have sure a member views the court may fies expression have about it. opinion,
The facts are are not stated but all significance, indeed unless equal confuse distin- therefore, I to one guished. put side, all consideration letter-press brought which the books were process They grand jury. into court or before the were taken there, course, submission, may be better deference-^—in say expressed of the law command sub- —to *22 v. UNITED WILSON STATES. J., dissenting. McKenna,
221 U. S. by Resistance to that was not pcena. Wilson, offered nor necessary. Boyd States, was it v. United 116 U. S. 616. right His constitutional was asserted With afterwards. Wilson then the books in his we possession and have to in rights situation, he such deal and had and let us that it his keep guilt was the law that mind under was investigation sought the books were under and for purpose of Three exposing. indictments had already against been him. Crime, therefore, found been had - formally charged, further crime being and was investi-. gated by by crime crime corporation, him, but —not (cid:127) proof, it was in the books. supposed, lay They and sought for no other reason. They were demanded of him to convict him. To the he demand that answered the Constitution of his him from country protected pro- ducing against himself. he was certainly evidence And to such evidence. The books were asked in an assertion of possession right against over them every- In the transactions body. they partici- recorded he was a pant, and, be, the It is only something doer. made of in the opinion that the willing have the books surrendered. The more unmistakable, there- was the claim fore, of personal privilege. Wilson let And it be kept privilege it was his own mind claimed, I pass not that corporation; by and as irrelevant a of what have consideration disclosures could been required it, even if it had been crime accused there pending inquiry against it. what
Upon ground was the privilege denied? Upon ground that the books were not his property but that of the corporation, in the opinion assimilated public documents, I pass present. consideration for the far, affecting How privilege, the rule of the title to property Every to be rule may carried? be tested can it. what be a privilege done under Whenever books, or, claimed course other J., dissenting.
McKenna, an issue as to property, may be title raised the court the right be decision deter- or shall the mined, only applied rule when such issue is not made? of partnership what property, prop- And erty otherwise in: common? Does the degree owned interest affect the rule? -In the case at bar Wilson asserted the books hold corporation. How- ever, minor such are, my considerations view, im- I portance; instance them only show what uncer- tainties we may go when we leave the clear' simple *23 directness privilege of the against As self-mcrimmatiom a is guaranty, personal'liberty it.should not be a qualified..by construction and distinction based on ownership of the books demanded as evidence not, immaterial. Such has been regarded distinction ex- cept in the public records, case of as will be exhibited a review of the authorities..
In Granatelli, Reports Rex. Trials, v. New State Series, 979, 986, Prince Granatelli prosecuted was for breach Foreign of the Enlistment Act in fitting out certain vessels to be in hostilities against King of the used Two A Sicilies. subpoenaed witness'was produce to agreement whereby agreed Granatelli buy the vessels of a certain navigation company which the witness was the secretary. The witness to produce it, on the refused ground might that it contain matter that might criminate himself or partiés other for whom he was It interested. was that he ruled not be could compelled agreement.
In Rex v. 2 Cornelius, Strange, 1210, an information granted against was the defendants, who were justices for .peace, taking money for granting licenses to alehouse A keepers. rule was applied for to inspect the books corporation. It was refused, ground on the oblige in effect a would for indicted defendant misdemeanor against himself. furnish evidence v. UNITED STATES. WILSON McKenna, J., dissenting. 37, Bl. an information was Purnell, Rex W. In was defendant, who the Vice against exhibited his neglect duty for Oxford, Chancellor of. spoken who had treasonable
punishing persons certain Attorney The General words in the streets Oxford. officers of the proper a for rule moved directed archives to be in- their books university permit the defendant. to furnish spected evidence suggestion “on a supported attempted motion was had a university, visitor King, being that the It thought proper.” whenever inspect théir books man a magistrate, that “when argued was besides having the office custody, in his as such has books Vice Chan- which another those shall not secrete books refused, The rule cellor produced.” must have this no instance know saying: court “We court wherein prosecu- in a criminal books inspect has a rule to granted in those eases corporations tion nakedly considered.” on by Wigmore as observed private, were considered Rex reason, in For the same notes to 2259. Evidence, § of custom- Worsenham, Raym. Ld. the. custom-house offi- books in an information house compelled. were not bond forging cers for custom-house *24 books of the Raym. 927, 2Mead, Ld. Regina in v. And incorporated as others, were eight with who, defendant a private nature, considered being surveyors, highway corporations Such produced. to be required were public, as as ob- to-day regarded be doubt, no would, in which certain cases he cites by Wigmore, served a follows: In a libel suit as public, records deemed regis- kept; statute to be required vestry book parish in a required .by law; filed reports pharmacist’s tered a charges, unlawful railroad for prosecution criminal a record sales druggist’s posted; .of publicly tariff sheet charge illegál liquor him with a statute kept under Massachusetts, paper “no official in a selling. statute By TERM, 1910. n J., dissenting. 221 U. S.
McKenna, legislative hearing at by witness produced or record” self-crimination. privilege against is to be within deduction, the rule is- I have cited from the cases As a “Where to be: Wigmore on Evidence laid down the claimant’s mis- also misconduct involves corporation’s reality personal is or where document conduct, nomiiially corpo- that claimant, though act to that own, virtually are ration, disclosures them.” producing him from protects privilege extent his to review cases opinion this unduly It would extend but ás Wigmore’s deduction, to oppose which said Henkel, Hale opinion 43, S. cited U. v. briefly. refer to it I will court, corporation an of a that officer could there
It was
held
that
ground
they
on the
its books
not refuse
n
an
What
corporation.
criminate
would
the books
producing
from
officer of
had
him was not
criminate
they might
that
ground
on the
was
prosecution
from
decide,
immunity
as'
necessary
which he should
for
matter
as to
any
given by statute
is a natural
inference
may
It
be contended
testify.
he
immunity
granted
that but for
the decision
from
See also Nelson
privilege.
such
have claimed
could
States,
in a
Judge Gilbert,
United
of a court criminate. And one whom would privi- principle. spirit on the cases seem any way to his shall not be used is that a witness lege the effect of anv evidence crimination. When *25 WILSON v. UNITED STATES.
(cid:127) McKenna, J., 221 S.U. dissenting. or him, may be it oral
required documentary, resist. He of at all to cannot be secure made use evidence. This must be extent of the Rex necessarily privilege. Purnell, supra, specially point. The Solicitor General crown, replying .for the that no one was .objection to furnish himself, said, “Agreed, bound evidence a man is a may mag- but distinction be made. When a istrate, as such books in custody, having and has his the office shall not secrete those books, another produced. Vice Chancellor must have Besides, stat- are not in custody utes the Vice Chancellor’s only, but also of the hands Custos Archivorum.” protection the constitutional And is not measured v effect, great small, prosecution. on It may be even though prosecution may be invoked- defeated. of the contemplation provision It is Constitu- that such result tion be the that it less evil than in his crime. person to conviction of requiring aid plausible arguments Neither therefore nor considerations expediency prevail against or limit principle should important enough to be deemed made constitutional. a principle firmly. Sueh be adhered It is said should Boyd States, 635, v. United 116 U. that “con- S. provisions prop- stitutional for security person and be erty should A close literal liberally construed. them deprives efficacy, construction of half their gradual if it depreciation right, leads consisted duty more than in It sound is the courts substance^ to be watchful rights citizen, for constitutional Their any stealthy encroachments thereon. .and motto obsta principiis.” should
a In case of property seizure forfeiture of certain invoicing, laws for under customs-revenue fraudulent Boyd the trial property. entered claim for Before know the value of important quantity became In to an the court the property. obedience order issued *26 TERM, 1910. n J., 221 ü. S. dissenting. McKenna, States, Boyd produced a statute the United under objected but on property, inspection, invoice in for forfeiture no can that a suit evidence ground also that the claimants, statute, from the and coiñpélled be compelled production the evidence to be far as it so him, was unconstitutional It was and void. used and statute violated order of court that the held Fifth of the Constitu- and Amendments Fourth both notwithstanding that the States, tion of the United statute passed to one purpose back trace could District Circuit and been sustained decisions had notwithstanding also it. sustained Courts, had and it criticised, The case has been but by such decisions. of other has become foundation has endured and be Indeed, legal names eminent cited decisions. ridicule, policy expressed by criticism, if Amendment, is, policy protection Fifth logical have It is no relation self-crimination. declared it, pre- that are sustain to the abuses said and hardship, far on is an “old tense for as based called it, so a “lawyer’s reason,”) reason,” (also woman’s sentimentality.” treble So “double distilled refined it fox unfairness is “the hunter’s far on called as based that a criminal a fox have being must reason,” its basis subsequent pursuit being made escape, chance to supposing interesting. asked, thereby more And “a in a robbery, for prosecution witness stand it, of which were he the effect answer question put, to another respect him to conviction might subject be to (such high give offenses with robbery, attended murder ground public utility on the argument), emphasis the collateral why there reason common sense is be advantage proffered by justice thus fortune should Evidence, 5, page vol. Bentham on foregone?” Judicial if government 229 et difficult seq. reply A would'be of crime. punishment than the other concern no WILSON UNITED STATES. McKenna, J., U. S. . dissenting.
If the Government had no other concern, short-cuts to conviction would and. justified commendable in proportion their shortness. The general warrants which John Wilkes resisted such a cut; so were writs of assistance issued in Colonial times. Their inducement was the detection of crime, yet popular rights were vindicated the resistance tó the first, and the “child ” Independence was born resistance to the second.
I pause to will vindicate the privilege of the uot Fifth *27 Amendment considerations of nor expediency inquire it whether is well-reasoned one principle, logic- ally from following abuses, properly adapted to the facts of life when was or if so adopted, then, not now. It has passed polemics from and has secured the sanction óf con- stitutional change law. Courts cannot or add .it, to it or ’’ take from it to suit the “condition of modern ‘civilization, as in a suggested it was case submitted with this. is as It as vital now when ordained and is not uncertain. It is plain and direct as to the source criminating of evidence. The person accused cannot be made the source. What Lord denominated “an argument of utility” C.amden prevail should not now as it did not in Westminster Hall when he pronounced great against general judgment I English courts, warrants. Indeed shown, have have never nor constrained by wavered the demands of felt criminal from justice depart in qualify way the any or strength privilege; possible Is it that a written is adaptations more flexible than an constitution one, spirit unwritten that of English liberty is that of firmer or more consistent than American liberty, or of clearly danger relaxing discerns more the strict- guarantees personal of of of any rights? ness tfie A of limitation construction the constitutional to be personal liberty deprecated. people securities for A at may through careless overlook cost grow what even the least of acquired what travail their they liberties.
. S. Syllabus. U. may It even be simple. of deterioration process intelligent advancement, and that self- to be conceived occasion, adapt itself can be trusted government It rule. come predetermined the fetters needing the cradle of in a constitution is considered to be boldly advance grown up may nation fancy, and that power security against abuses confident But what of the moré than reason. sway will not passion when the history ignored, the lessons are end when gathered experience from erected by barriers wisdom And destroyed weakened or destroyed? weakened desire interest and feel their restraint. may be when What And history repeat will itself? this is end; then of cry warning of alarm. “Obsta principiis” not a Mr, Bradley Boyd United States against Justice Government break attempt down con by attempting of the citizen exact stitutional of fraud customs I from him evidence laws. . présent is another repeat warning attempt case kind and should be the same way. of the same treated *28 DREIER UNITED STATES. HENKEL,
DREIER STATES MARSHAL. UNITED TO AND APPEAL PROM THE OP ERROR CIRCUIT COURT THE THE STATES POR DISTRICT OP UNITED SOUTHERN NEW YORK. Argued 2, 3, May 15, 359. March 1911. Decided
Nos. ante, p. 361, States, v. United effect followed to that an Wilson officer produce papers, refuse to of a cannot books and response ground to a duces tecum on the personally.' would tend incriminate him the contents thereof if to refuse to whether documents Quaere cor-