Charles Evans Hughes

“ Where the documents of a corporation are sought, the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself. Corporate existence implies amenability to legal process. The corporation may be sued; it may be compelled by mandamus, and restrained by injunction, directed to it. Possessing the privileges of a legal entity, and having records, books, and papers, it is under a duty to produce them when they may properly be required in the administration of justice. ”

“ Upon the ground that the books were not his property, but that of the corporation, and they are assimilated in the opinion to public documents,-a consideration I pass for the present. How far, as affecting the privilege, is the rule of the title to property to be carried? Every rule may be tested by what can be done under it. Whenever a privilege is claimed against the protection of books, or, of course, other property, may an issue be raised as to title, and upon its decision by the court, the right to the privilege be determined, or shall the rule only be applied when such issue is not made? ”

“ It is at once apparent that the mere fact that the appellant himself wrote, or signed, the official letters copied into the books, neither conditioned nor enlarged his privilege. Where one's private documents would tend to incriminate him, the privilege exists although they were actually written by another person. And where an officer of a corporation has possession of corporate records which disclose his crime, there is no ground upon which it can be said that he will be forced to produce them if the entries were made by another, but may withhold them if the entries were made by himself. ”

“ In the case at bar, Wilson asserted the right to hold the books against the corporation. However, such considerations are, in my view, of minor importance, and I instance them only to show to what uncertainties we may go when we leave the clear and simple directness of the privilege against selfincrimination. As the privilege is a guaranty of personal liberty, it should not be qualified by construction, and a distinction based on the ownership of the books demanded as evidence is immaterial. ”

“ If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt. ”

“ The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our laws. Nothing more is demanded than that the appellant should perform the obligations pertaining to his custody, and should produce the books which he holds in his official capacity in accordance with the requirements of the subpoena. None of his personal papers are subject to inspection under the writ, and his action in refusing to permit the examination of the corporate books demanded fully warranted his commitment for contempt. ”

“ The books are no more his private books in the latter case than in the former; if they have been held pursuant to the authority of the corporation, that authority is subject to termination. In both cases production tends to criminate; and if requiring him to produce compels him to be a witness against himself in the one case, it does so equally in the other. There are other facts which serve to sharpen the claim of privilege, but are not determinative. Thus, there were two indictments pending against the appellant, and the inquiry before the grand jury was also directed against him. ”

“ That demand, expressed in lawful process, confining its requirements within the limits which reason imposes in the circumstances of the case, the corporation has no privilege to refuse. It cannot resist production upon the ground of self-crimination. Although the object of the inquiry may be to detect the abuses it has committed, to discover its violations of law, and to inflict punishment by forfeiture of franchises or otherwise, it must submit its books and papers to duly constituted authority when demand is suitably made. ”

“ No personal privilege to which they are entitled requires such a conclusion. It would not be a recognition, but an unjustifiable extension, of the personal rights they enjoy. They may decline to utter upon the witness stand a single self-criminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers. But the visitatorial power which exists with respect to the corporation of necessity reaches the corporate books, without regard to the conduct of the custodian. ”

“ But what of the end when the lessons of history are ignored, when the barriers erected by wisdom gathered from experience are weakened or destroyed? And weakened or destroyed they may be when interest and desire feel their restraint. ”

“ It may come to be considered that a constitution is the cradle of infancy, that a nation grown up may boldly advance in confident security against the abuses of power, and that passion will not sway more than reason. ”

“ If, however, the privilege existed with respect to these books in his hands, it would have been likewise available had there been no prior indictments, and had the immediate investigation concerned violations of law by others. The privilege holds although the pursuit of the person required to produce has not yet begun; it is the incriminating tendency of the disclosure, and not the pendency of the prosecution against the witness, upon which the right depends. ”

“ Long, 9 East, p. 484: 'The right to resort to means competent to compel the production of written, as well as oral, testimony, seems essential to the very existence and constitution of a court of common law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them.' Where the subpoena duces tecum contains the usual ad testificandum clause, still it is not necessary for the party requiring the production to have the person producing the documents sworn as a witness. They may be proved by others. 3 Wigmore, Ev. ”

“ He cannot be made use of at all to secure the evidence. This must necessarily be the extent of the privilege. Rex v. Punnell, supra, is specially in point. The solicitor general for the Crown, replying to the objection that no one was bound to furnish evidence against himself, said: 'Agreed but a distinction may be made. When a man is a magistrate, and as such has books in his custody, his having the office shall not secrete those books, which another vice chancellor must have produced. ”

“ 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. ”

“ 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. ”

“ A limitation by construction of any of the constitutional securities for personal liberty is to be deprecated. A people may grow careless and overlook at what cost and through what travail they acquired even the least of their liberties. ”

“ The process of deterioration is simple. It may even be conceived to be advancement, and that intelligent self-government can be trusted to adapt itself to occasion, not needing the fetters of a predetermined rule. ”

“ As a deduction from the cases I have cited, the rule is laid down in Wigmore on Evidence to be: 'Where the corporate misconduct involves also the claimant's misconduct, or where the document is in reality the personal act of the claimant, though nominally that of the corporation, its disclosures are virtually his own, and to that extent his privilege protects him from producing them.' [§ 2259.]
It would unduly extend this opinion to peview the cases which are said to oppose Wigmore's deduction, but as Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. ”

“ The writ was issued, and on return being made of the commitment, was dismissed and the petitioner remanded, and from this order an appeal was taken to this court (No. 760) .
Later, on October 28th, 1910, another subpoena duces tecum was issued in the same form, addressed to the United Wireless Telegraph Company, and calling for the same books. It was served on the appellant Wilson and also on the secretary and five directors of the company. ”

“ The accused person cannot be made the source. What Lord Camden denominated 'an argument of utility' should not prevail now, as it did not in Westminster Hall when he pronounced his great judgment against general warrants. ”