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IMMUNITY

EXAMINATION BEFORE GRAND JURY.

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of the Fourteenth Amendment. He claimed further that the Kansas statute was void on that ground. The Supreme Court held that the contention was without merit. The court observed that while it was true that the law of Congress was supreme, and that judges and courts in every State were bound thereby, and that a Federal statute granting immunity would properly operate in the State as well as in the Federal courts, and while there might be a bare possibility that a witness might be subjected to the criminal laws of some other sovereignty, yet it was not a real and probable danger, but so improbable that it need not be considered. The legal immunity secured by the Kansas statute operated in regard to a prosecution in the same jurisdiction, and was, therefore, sufficient. (Jack v. Kansas, 199 U. S. 372.)

§ 10. Immunity - Examination Before Grand Jury.The examination of a witness before a Federal grand jury is a "proceeding” within the act of February 25, 1903. The court held that the word "proceeding” is not technical, and is aptly used by courts to designate an inquiry before a grand jury. It has received this interpretation in a number of cases.

The case in which this decision was rendered, known as “the Tobacco Trust case,” arose in a proceeding instituted under a subpæna duces tecum commanding Hale, the plaintiff in error, to appear before the grand jury at a time and place named, to testify and give evidence in a certain action pending in the Circuit Court of the United States for the southern district of New York, between the United States of America and the American Tobacco Company, and the MacAndrews & Forbes Company, on the part of the United States, and to bring and produce certain papers, books, and documents referred to in the subpæna. The witness declined to answer on three grounds: First, because it was physically impossible for the witness to get together the books and documents within the time specified in the subpæna; second, because he was under no legal obligation to produce anything called for by the subpæna, and third, because the answer might tend to incriminate him. The grand jury reported the matter to the court and made a presentment that the witness was in contempt. The parties appeared before the circuit judge, who directed the witness to answer the questions and produce the papers. The witness persisted in his refusal, and the judge held him in contempt and committed him to the custody of the marshal, until he should answer the questions and produce the papers. The witness sued out a writ of habeas corpus which was dismissed and the prisoner remanded. An appeal was taken to the Supreme Court of the United States where the order of the court below was affirmed. It was urged on appeal, that the witness was subpænaed before the grand jury, which was conducting an ex parte investigation, and although the language of the subpæna required the witness to testify and give evidence in a certain action now pending, that as a matter of fact no action was pending. It was contended, therefore, that there can be no prosecution in a criminal proceeding until after a formal indictment had been made showing that a criminal offense had been committed. That an investigation by a grand jury is not a "case" or

controversy” within the meaning of the Constitution, and that the investigation conducted by the grand jury was not a “proceeding, suit, or prosecution” under the act of February 25, 1903.

That the act referred to was unconstitutional because it deprived the States of their right to prosecute persons concerned in transactions in violation of State laws. That the subpæna duces tecum was void under the Fourth Amendment, as an unlawful search and seizure of papers, and that the order deprived the witness of his liberty without due process of law. These objections were held untenable, and the dismissal of the writ of habeas corpus was affirmed. (Hale v. Henkel, 201 U. S. 43.)

§ 11. Immunity — Testimony Before Grand Jury:Originally the grand jury seems to have been devised as a convenient method to assist itinerant justices in England to detect and punish crime, and a specific charge against a particular person is not necessary to give the grand jury jurisdiction. It acts on the information of the district at

TESTIMONY BEFORE GRAND JURY.

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torney, or upon its own knowledge or information otherwise obtained. The scope of the powers of a grand jury is limited by the jurisdiction of the court of which it is an appendage. Under the ancient system in England, criminal prosecutions were instituted at the suit of private prosecutors, to which the King lent his name in the interest of public peace. The usual practice was to prepare the proposed indictment, and lay it before the grand jury for their consideration, because that body was supposed to stand between the prosecutor and the accused, and to determine whether the charge was founded upon creditable testimony or was dictated by malice. There is no authority, however, for the proposition that a grand jury cannot proceed without the formality of a written charge. Their oath requires them to make diligent inquiry as to things given into their charge, and also all other matters and things which shall come to their knowledge. If the grand jury, of their own knowledge, or of the knowledge of witnesses examined before them, know of the commission of an offense for which no indictment is preferred, they must inform the public prosecutor and request an indictment, or give information to the court respecting the offense. This latter proceeding is called a presentment. In this country, the examination of witnesses before a grand jury need not be preceded by a presentment or indictment. Inquiry instituted by a grand jury is a proper and legal proceeding, therefore, whether an indictment has been framed or not, within the meaning of the act of February 25, 1903, and the witness before it was properly directed to answer the inquiry put to him. (Hale v. Henkel, 201 U. S. 43; MCAlister v. Henkel, 201 U. S. 90.)

The fact that the statute was inoperative in that it did not extend immunity to the corporation of which the witness was the agent or representative was wholly untenable for the reason that the immunity extended by the Fifth Amendment was personal to the witness. It is a privilege which the witness alone can invoke, and it is wholly immaterial that some third person might be incriminated as

son.

the result of the testimony given by the witness even although the witness might be the agent of such third per

In other words, a witness to whom immunity is extended by the statute will be compelled to testify and cannot plead that some other person, even the principal for whom the witness acts, might be subject to criminal prosecution. The amendment is limited to a person who shall be compelled to be a witness against himself. If, therefore, the witness cannot set up the privilege of a third person, he cannot set up the privilege of a corporation of which he may be an officer. (Hale v. Henkel, 201 U. S. 43; McAlister v. Henkel, 201 U. S. 90.)

§ 12. Immunity Does Not Extend to Corporation.The question whether a corporation is a “person” within the meaning of the Fifth Amendment to the Constitution which excuses a person in any criminal case from being a witness against himself is material only in a case where a corporation is called upon to answer a bill of discovery. The inquiry is not pertinent, when the privilege is claimed by a witness who is an officer or agent of the corporation. The corporation itself can only be heard by oral evidence in the person of some one of its agents or employees. A body corporate is an artificial inanimate entity. The corporation, as such, cannot be called as a witness. In this connection the court observed: “As the combination or conspiracies provided against by the Sherman Anti-Trust Act can ordinarily be proved only by the testimony of parties thereto, in the person of their agents or employees, the privilege claimed would practically nullify the whole act of Congress. Of what use would it be for the Legislature to declare these combinations unlawful if the judicial power may close the door of access to every available source of information on the subject? Indeed, so strict is the rule that the privilege is a personal one, that it has been held in some cases that counsel will not be allowed to make the objection.” (Hale v. Henkel, 201 U. S. 43; McAlister v. Henkel, 201 U. S. 90.)

IMMUNITY

SEARCH AND SEIZURE.

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$ 13. Immunity from Search and Seizure Extends to Corporation.- A corporation cannot be examined as a witness. It cannot, therefore, claim immunity under the Fifth Amendment of the Constitution for the reason that it cannot testify against itself. Nevertheless, a corporation is entitled to immunity under the Fourth Amendment against unreasonable searches and seizures. 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 discriminations. (Gulf, etc., R. R. Co. v. Ellis, 165 U. S. 150.) Corporations are an important feature of modern business activity, and their aggregate capital has become the source of nearly all great enterprises. An order for the production of books and papers may, therefore, constitute a reasonable or unreasonable search and seizure within provisions of the Fourth Amendment. But a corporation has no right to refuse to submit its books and papers for an examination at the suit of the State. An individual stands upon a different plane, in this regard, than a corporation. power of the individual to contract," says Justice BROWN, “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 incriminate him. He owes no such duty to the State, since he received nothing therefrom beyond the protection of his life and property. He owes nothing to the public so long as he does not trespass upon their rights.

“The corporation, however, is a creature of the State. It is presumed to be incorporated for the benefit of the public. It received certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it, so long as it obeys the laws of its creation. There is a reserved right in the Legislature to investigate its contracts and to find out whether it has exceeded its powers. It should be a strange anomaly to hold that a State,

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