with whom the Chibe Justice concurred, dissenting.
With what is said in the opinion of the court of the necessity of a “ charge, ” with the proposition that the immunity granted by the Federal statute is sufficient protection against both the Nation and the several States, with the hblding that the protection accorded by the Fifth Amendment to the Constitution is personal to the individual and does not extend to an agent of an individual or justify such agent in refusing to give testimony incriminating his principal, and also that the subpoena duces tecum cannot be sustained, I fully agree.
Further, I desire to emphasize certain truths which in this and other cases decided to-day seem to be ignored or depreciated. The immunities and protection of articles 4, 5 and 14 *84of the Amendments to the Federal Constitution are available to a corporation so far as in the nature of things they are applicable. Its property may not be taken for public use without just compensation. It cannot be subjected to unreasonable searches and seizures. It cannot be deprived of life or property without due process of law.
It may be well to compare the words of description in articles 4 and 5 with those in article 14:
"Article 4. The right of the people to be secure in their persons, hoúses, papers, 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.”
"Article 5. No person . . . shall be compelled in any criminal case to be a witness against himself, nor to be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation'. ”
"Article 14. . . Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”
In Santa Clara County v. Southern Pacific Railroad, 118 U. S. 394, 396, Mr. Chief Justice Waite said:
"The court does not wish-to hear argument on the question whether the provision in- the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does. ”
See also Pembina Mining Company v. Pennsylvania, 125 U. S. 181; Missouri Pacific Railway Company v. Mackey, 127 U. S. 205; Minneapolis & St. Louis Railway Company v. Beckwith, 129 U. S. 26; Charlotte &c. Railroad v. Gibbes, 142 U. S. 386; Monongahela Navigation Company v. United States, 148 U. S. 312; Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U. S. 150, 154, *85and cases cited; Chicago, Burlington & Quincy Railroad Company v. Chicago, 166 U. S. 226.
These decisions were under the Fourteenth Amendment, but if the word ‘1 person ” in that Amendment includes corporations, it also includes corporations when-used in the Fourth and Fifth Amendments.
By the Fourth Amendment the “ people ” are guaranteed protection against unreasonable searches and seizures. “ Citizens ” is a descriptive word; no broader, tp say the least, than “people. ”
As repeatedly held, a corporation is a citizen of a State for purposes of jurisdiction of Federal courts, and,-as a citizen, it may locate mining claims under the laws of the United States, McKinley v. Wheeler, 130 U. S. 630, and is entitled to the benefit of the Indian Depredation Acts. United States v. Northwestern Express Company, 164 U. S. 686. Indeed, it is essentially but an association of individuals, to which is given certain rights and privileges, and in which is vested the legal title. The beneficial ownership is in the individuals, the corporation being, simply an instrumentality by which the powers granted to these associated individuals • may be exercised. As said by Chief Justice Marshall in Providence Bank v. Billings, 4 Pet. 514, 562: “The great object of an incorporation is to bestow the character and properties of. individuality on a collective and changing body of men.”
United States v. Amedy, 11 Wheat. 392, was the case of an indictment under an act of Congress for destroying a vessel with intent to prejudice the underwriters. The act of Congress declared that “if any person shall . . . willfully and cor-ruptly cast away . . : any ship or vessel . . . with intent or design to prejudice any person or persons that hath ■underwritten, or shall underwrite, any policy,” etc. The indictment charged an intent to defraud an incorporated insurance company, and the court held that a corporation is a person within the meaning of the act, saying (p. 412):
“The mischief intended to be reached by the statute is the *86same, whether it respects private or corporate persons. That corporations are, in law, for civil purposes, deemed persons, is unquestionable. And the citation from 2 Inst. 736, establishes that they are so deemed within the purview of penal statutes. Lord Coke, there, in commenting on the statute of 31 Eliz. c. 7, respecting the erection of cottages, where the word used is, ‘no person shall,' etc., says, ‘ this extends as well to persons politic and incorporate, as to natural persons whatsoever. ’ ”
Neither does the fact that a corporation is engaged in interstate commerce in any manner abridge the protection and applicable immunities accorded by the Amendments. The corporation of which the petitioner was an officer was chartered by a State, and over it the General Government has no more control than over an individual citizen of that State. Its power to regulate commerce does not carry with it a right to dispense with the Fourth and.Fifth Amendments, to unreasonably search or' seize the papers of an individual or corporation engaged in such commerce, or deprive him or it of any immunity or protection secured by either Amendment.
It is true that there is a power of supervision and inspection of the inside workings of a corporation, but that belongs to the creator of the corporation. If a State has chartered it, the power is lodged in the State. If the Nation, then in the Nation, and it cannot be exercised by any other authority. It is in the nature of the power of visitation.
In Angelí & Ames on Corporations, 9th ed. c. 19, §§ 684, 685, the authors say:
“To render the charters or constitutions, ordinances and bylaws of corporations of perfect obligation, and generally to maintain their peace and good government, these bodies are • subject to visitation; or, in other words, to' the inspection and control of tribunals recognized by the laws of the land. Civil corporations are visited by the Government itself, through the medium of the courts of justice; but the internal affairs of ecclesiastical and eleemosynary corporations are, in general,' inspected and controlled by a private visitor.
*87“In this country, where there is no individual founder or donor, the legislature are the visitors of all corporations founded by them for public purposes, and may direct judicial proceedings against them for abuse or neglects which at common1 law would cause a forfeiture of their charters.”
The matter is discussed in Blackstone’s Commentaries, in .par. 3, chap. 18, Book I, and he says:
“I proceed, therefore, next to inquire how these corporations may be visited. For corporations, being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. And for that reason the. law has provided proper persons to visit, inquire into, and correct .'all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil or eleemosynary. ”
And in respect to civil corporations he adds, same paragraph and chapter (*782):
“The law having by immemorial usage appointed them to be visited and inspected by the King,' their founder, in His Majesty’s Court of King’s Bench, according to the rules of the common law, they ought not to be visited elsewhere,-or by any other authority. ”
In 2 Kent, *300, the author says: “The visitation of civil corporations is by the Government itself, through the medium of the courts of justice. ”
In Amherst Academy v. Cowls, 6 Pick. 427, 433, it was held that:
“Without doubt the legislature are the visitors of all corporations founded by them for public purposes, where there is no individual founder or donor, and may direct judicial process against them for abuses or neglects which by common law would cause a forfeiture of their charters. ”
The right of visitation is for the purpose of control and to see that the corporation keeps within the limits of its powers. It ' would be strange if a corporation doing business in a dozen States was subject to the visitation of each of those States, and *88compelled to regulate its actions according to the judgments— perhaps the conflicting judgments — of the several legislatures. The fact that a state corporation may engage in business which is within the general regulating power of the National Governr ment does not give to Congress any right of visitatioq or any power to dispense with the immunities and protection of the Fourth and Fifth Amendments. The National Government has- jurisdiction over crimes committed within its special territorial limits. Can it dispense in such cases with these immunities and protections? No more can it do so in respect to the acts, and conduct of individuals coming within its regulating power-. It has the same control over commerce with foreign nations as over that between the States. Boyd v. United States, 116 U. S. 616, arose under the Revenue Acts, and the applicability of the Fourth and Fifth Amendments was sustained. In that case is an elaborate opinion by Mr. Justice Bradley, speaking for the court, in which the origin of the Fourth and Fifth Amendments is discussed, their- relationship to each other shown, and the necessity of a constant adherence to the underlying thought of protection expressed in them strenuously insisted upon. I quote his words (p. 635):
“It may be that it (the proceeding in question) is the obnoxious thing in -its mildest and least repulsive form; but illegitimate. and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sotmd than in substance. It is the duty of courts to be watchful for the.constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.”
Finally, as the subpoena duces tecum was the initiatory step in the proceedings before the grand jury against this petitioner, *89as that is the major fact in those proceedings, and as it is agreed that it is not sustainable, it seems to me that the order adjudicating him in contempt should be set aside, and this notwithstanding that subsequently he improperly refused to answer certain questions.
The case is not parallel to that of an indictment in two counts upon which a general judgment is entered, and one of which counts is held good and the other bad, for a writ of habeas corpus is not a writ of error, and the order to be entered thereon is for a discharge or a remand to custody. If a discharge is ordered no punishment can be inflicted under the judgment as. rendered, and if a new prosecution is instituted containing the good count a plea of former conviction will be a full defense. But in the case at bar an order for a discharge will have no such result. The habeas corpus statute, Rev. Stat., § 761, provides that “ the . court, or justice, or judge shall proceed in a summary way . . . to dispose of the party as law and justice require. ” Justice requires that he should not be subjected to the costs of this habeas corpus proceeding, or be punished for contempt when he was fully justified in disregarding the principal demand made upon him.
The order of the Circuit Court should be reversed and the case remanded with instructions to discharge the petitioner, leaving to the grand jury the right to initiate new proceedings not subject to the objections to this.
I am authorized to say that the Chief Justice concurs in these views.
McAlister v. Henkel, post, p. 90.