Kirk's Law Corner

Kirk's Law Corner


A vehicle named government. One day the people of a community got together and we were talking and they decided that they needed a vehicle so that they could do business in other communities and barter for their community to buy and sell and trade for their families and community so that their community would prosper and grow. So after a long discussion, they decided to get together and build a vehicle, that everyone in their community could use to enhance their lives, and each one of their family members and neighbors all had different pieces to contribute to building this vehicle, some had money some had materials some had tools, each neighbor contributed to building this vehicle, and they would all have an equal opportunity to use this vehicle to make their lives easier. So during the building of the vehicle, one of the mechanics said we should put a governor on the engine since we are going to have multiple drivers from time to time and not all drivers are competent drivers or as mechanics so to protect the vehicle from abuse we need to put a governor on the engine so that the engine will not accelerate and blow itself up. So the governor that they design and put on the engine should have limit authorities and powers (these restrictions of authorities and power are called the Constitution this governs the governor) only to have control of the engine to restrict the engine from blowing itself up, no other controls would be needed since the drivers of the vehicle will have those powers and control, through the accelerator and braking controls,(the Declaration of Independence and the Bill of Rights). So all the neighbors agree to attach restrictions on the engine in which the engine could not achieve self powers that would destroy itself, by getting out of control, or becoming self-excited and could not control itself. also in the process, everyone agreed that it should have an accelerator and breaking controls( the accelerator also known as liberty and freedom, and the breaking controls known as justice ) given to the driver of the vehicle so that the driver could maintain full control at all times. (the Declaration of Independence and the Bill of Rights) so that the driver could control this vehicle when they use it to do their business and travel around the community, so when they finished building this vehicle someone suggested they give it a name, so they call the vehicle government because each one of them contributed to making this vehicle and helped to create and build their community and government, they all had equal rights to use the vehicle. We noticed that responsible drivers who use the vehicle, could operate it responsibly in all different types of conditions, regardless of the political climate, but others seem to have issues all the time, some had a problem keeping the vehicle on the road, and some did not take care of it properly, so occasionally we the people who build the vehicle had to restrict those individuals from using the vehicle government. The vehicle worked perfectly for quite some time, but we started to notice when we would go up a hill the vehicle would start to lose power, it was not designed to lose power when difficulties arose, that’s why we inserted in an accelerator pedal so that the drivers, the people, could acquire more power from the vehicle, from time to time when they needed it, especially in difficult situations, we wanted all the powers available to the driver or to the driver on demand. And sometimes going downhill the vehicle would start to slow down on its own, and all the mechanics who built the vehicle were wondering why all of a sudden the vehicle seems to have a mind of its own and was trying to control the drivers. So after a full diagnostics, the people and the mechanics realize that the governor on the vehicle started to function on its own, taking control of the vehicle’s engine powers, that it was not designed to control. So the people and the creators and builders of the vehicle decided to remove the governor and replace it with a new governor, that could only control the RPMs on the motor to keep the motor from blowing up, but again after a short period of time, the same problems occurred again, so again the mechanics replaced the governor, this continued to happen periodically over time and eventually the mechanics and the people just got tired of replacing the governor and got used to the vehicle having more control, and the drivers having less power. But one day there was an emergency it was a matter of life and death and they were trying to get help and the vehicle would not let anybody use it, the vehicle refused to move, the people did not know what to do, you see they forgot how to replace the governor,( the use of the Constitution ) they forgot how to bypass the governor so that the governor could not interfere in their lives and the use of the vehicle. You see the governor actually started interfering with the use of the vehicle and had caused a serious emergency, and because the people got complacent with the governor always try to take more control than it was designed to do, that they the people got tired of replacing the governor all the time, and eventually, it almost led to a catastrophe, that almost cost the lives of the people and the builders of the vehicle! thank God there were one or two old mechanics who, still had all the books and notes on how they created the vehicle and how to repair and maintain it, those who remembered who help to create and build this vehicle, who knew how to bypass the governor, until a new governor could be installed to resume normal operations as designed by the people, the creators of the vehicle. So the mechanics who made the repair on this vehicle named government, designed into it when the governor had been in place for a period of time it was to be removed and replaced with a new one before it started to fail, they also designed into it a fail-safe, if the governor started to fail prematurely, it could be easily bypassed by the driver. This process would allow the drivers to bypass the governor, to keep control of the vehicle, no matter what the emergency was! there was always a bypass protocol built into the vehicle so that the drivers could never be restricted in their use of the vehicle call government because, after all the vehicle was created by the people for their use and convenience, not for the vehicles use and convenience, and not to control the people, but for the people to always have control the vehicle. Bill Sharpe Ellendale Delaware all rights reserved5/12/2020.
Greetings to my Christian constitutionalist patriots, three presenters and tea party freedom fighter's. What are we here in America fighting for? well The fight that we are in started 2000 years ago, when Jesus informed us of the Spirit of God. When the Spirit of God is in you there are only 10 Commandments that guide your life, you're introduced to liberty, because with God the Spirit is liberty, so that is what we're fighting for the spirit to keep God within us, to live in liberty and that freedom, provides liberty and justice. Most everybody has heard of the New World order, it is not a New World order, it is the old world order where there were no free people, there were no nation's that were not under the rule of the King! Until America was created. America was the first nation of a free people, who created their own form of government, their own laws based upon the Christian doctrine the holy Bible, as the most moral spiritual document known to man, that is why it is called the good book. Everybody has heard of the United Kingdom, or the United Arab, states or nations. These United kingdoms have all joined in compact or contract, to destroy the spirit that lives within America, they want no nation were common people, are free, they can have no nation of common people that are free, because everywhere freedom lives it's a threat to slavery everywhere! This is why we American's fight! The spirit of freedom and liberty was born and lives here in the United States of America, when the people in Hong Kong stood up fighting for their liberties and freedoms what flag were they flying? They were flying the flag of the United States of America, why would they hold up any other flag, for all other nations are umbrella nation of Kings. Just like a corporation that owns many small companies and corporations under it, the United kingdom, wish to overthrow every other corporation that they can get their hands on, and just like any other corporation or business, they are working to dissolve and destroy freedoms around the world, so that they do not have employees, only servants and slaves, property just like cattle or poultry, with no rights and no liberties. You see my friends the fight to be free here in America, starting with Christians, Jews, Spartan's and any other people who have organized, educated themselves with the knowledge the free, and with that knowledge comes the dream and wish to be free. But one must edify themselves to learn how to be free, to discover that spirit, and how to grow that spirit and embrace that spirit. We wish to be free because we know GOD, and the spirit of God is in all men who wish to be free and all men who are free. The war that America is in, is against our GOD and the Spirit that he gave us that lives within us, that gives us our liberties, we are in the biggest spiritual war of our lives, and probably the entire history of this world! The forces of evil have all come together to work against us,here in America today. it is just not the Democratic Party,or the mainstream media, it is the corporations, that control our food, our energy, our healthcare, and almost every aspect of our lives, we the people need to shed evil from our lives, and embrace the spirit of the Lord! Almighty GOD the creator of all things, the one with the knowledge of all things, is the one true and only GOD,GOD gave us this Spirit to live in his faith with our liberties and freedom, to worship him and to love him, as he has love us. We will fight to protect our liberties and freedom as Americans, not out of vengeance, not for revenge, not out of hate, but for the right to protect our spirit that GOD has instilled in us to know these things, fear not for where the spirit of the Lord is so is liberty. Amen GOD bless America, and GOD bless all of us who are in your spirit. AMEN!

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Hale v. Henkel, 201 US 43 - Supreme Court 1906 - Google Scholar

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. 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 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 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


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 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, 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 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 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.

Additional info,

How this document has been cited
A corporation, over the dissent of the first Mr. Justice Harlan, was held entitled to protection against unreasonable searches and seizures by reason of the Fourth Amendment.
- in Bell v. Maryland, 1964 and 72 similar citations
"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 though he were the agent of such person."
- in United States v. Willis, 1955 and 105 similar citations
The privilege against self-incrimination afforded by the Fifth Amendment is personal to the witness.
- in Goldstein v. United States, 1942 and 72 similar citations
—a witness had refused in the trial court to produce certain books and papers called for by a subpoena duces tecum on three grounds, one of which was that it was impossible to collect the records within the time allowed.
- in United States v. Bryan, 1950 and 65 similar citations
—a subpoena duces tecum ordering'the production of books and papers (before a grand jury) may constitute an unreasonable search and seizure within the 4th Amendment,'and on the particular facts of the case, it concluded that the subpoena was' far too sweeping in its terms to be regarded as reasonable.
- in United States v. Mara, 1973 and 64 similar citations
The only other time that Du Bo appeared in the Mojica-Baez opinion was as a source for the venerable and off-quoted language that "at common law, the most valuable function of the grand jury was... to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony..."
- in US v. DE CASTRO-FONT, 2008 and 52 similar citations
A corporate officer may not withhold testimony or documents on the ground that his corporation would be incriminated.
- in Sippit Cups, Inc. v. Michael's Creations, Inc., 1960 and 36 similar citations
—while general visitorial power over state corporations was not asserted to be within the power of Congress, it was nevertheless declared as to interstate commerce that the general government had, in the vindication of its own laws, the same power it would possess if the corporation had been created by act of Congress.
- in ICC v. Goodrich Transit Co., 1912 and 38 similar citations
The company refused to produce the books (with the exceptions stated), and, even if the notice had been too broad, the objection cannot be urged as to the validity of the order adjudging the company guilty of contempt.
- in Consolidated Rendering Co. v. Vermont, 1908 and 32 similar citations
Against this criticism, the Supreme Court has steadfastly insisted that the grand jury remains as a shield against unfounded prosecutions.
- in US v. Navarro-Vargas, 2005 and 32 similar citations

Related documents
Wilson v. United States
221 US 361 - Supreme Court 1911
United States v. White
322 US 694 - Supreme Court 1944
Boyd v. United States
116 US 616 - Supreme Court 1886
Brown v. Walker
161 US 591 - Supreme Court 1896
Counselman v. Hitchcock
142 US 547 - Supreme Court 1892

There is so many more cases cited within Hale v Henkel. It's a great case to go through and find all the good little trinkets 47*47 Mr. De Lancey Nicoll, with whom Mr. Junius Parker and Mr. John D. Lindsay were on the brief, for appellant in this case and in No. 341 argued simultaneously herewith.[1]

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