HUMPHREY, District Judge
(orally). A number of acts of Con-, gress are involved in the case, and have been discussed upon the arguments on the motion and cross-motion to direct a verdict — the Cullom act, the original interstate commerce act of February 4, 1887 (24 Stat. 379, c. 104), and amendments of March 2, 1889 (25 Stat. 855, c. 382), and February 10,1891 (26 Stat. 743, c. 128, [U. S. Comp. St. 1901, p. 3154]); the act with regard to testimony of February 11, 1893 (27 Stat. 443, c. 83 [U. S. Comp. 1901, p. 3173]), being supplemental to the Cullom act; the act establishing the Department of [817] Commerce and Labor of 1903 (Act Feb. 14, 1903, c. 552, 32 Stat. 825 [U. S. Comp. St. Supp. 1905, p. 63]), and by its terms adopting certain portions of the two first-named acts; the Sherman act (the anti-trust law of 1890); and Appropriation Act Feb. 25, 1903, c. 755, 32 Stat. 904 [U. S. Comp. St. Supp. 1905, p. 602]. The defendants are indicted under the Sherman act (the anti-trust act), charged with a conspiracy in restraint of trade. They have pleaded that as to them that act is suspended and inoperative and does not exist, because they were compelled to furnish evidence of and concerning the matters contained in the indictment, and that under the law such furnishing of evidence gives them immunity. The question of guilt or innocence is not involved.
As to the corporations, the artificial persons named as defendants, the pleas cannot avail. I regard that contention as having been met and overruled by the late decision of the Supreme Court in the case of Edwin F. Hale v. William Henkel, United States Marshal, 26 Sup. Ct. 370, 50 L. Ed.-, decided March 12, 1906, and not yet officially reported. In the typewritten decision of that case forwarded to the Attorney General and by him presented to the court I find the following language:
“But it is further insisted that, while the immunity statute may protect individual witnesses, it would not protect the corporation of which appellant was the agent and representative. This is true, but the answer is that it was not designed to do so. 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. A privilege so extensive might be used to put a stop to the examination of every witness who was called upon to testify before the grand jury with regard to the doings or business of his principal, whether such principal were an individual or a corporation. The question whether a corporation is a “person” within the meaning of this amendment really does not arise, except, perhaps, where a corporation is called upon to answer a bill of discovery, since it can only be heard by oral evidence in the person of some one of its agents or employés. The amendment is limited to a person who shall be compelled in any criminal case to be a witness against himself, and, if he cannot set up the privilege of a third person, he certainly cannot set up the privilege of a corporation. 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 employés, 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 upon the subject? * * *
“If, whenever an officer or employé 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. But, conceding that the witness was an officer of the corporation under investigation and that he was entitled to assert the rights of the 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 [818] 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 and 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 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. 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 franchises 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 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 state corporations.”
I regard this as clearly distinguishing between the corporation and the individual who is an officer of the corporation. I cannot understand the opinion in any other way except as holding that there can be no immunity for the corporation, but that the officer or agent of the corporation, if the facts bring him within the purview of t„e law, may plead such immunity. This disposes of the corporations.
Now, as to the individual defendants: There is a provision in the commerce and labor act providing for immunity, and it refers for the immunity to the Cullom act and the act supplemental thereto. The commerce and labor act reads:
“All the requirements, obligations, liabilities, and immunities imposed or conferred by said ‘Act to regulate commerce,’ and by ‘An act in relation to testimony before the Interstate Commerce Commission,’ and so forth, approved February eleventh, eighteen hundred and ninety-three, supplemental to said ‘Act to regulate commerce,’ shall also apply to all persons who may be subpoenaed to testify as witnesses or to produce documentary evidence in pursuance of the authority conferred by this section.” Act Feb. 14, 1903, c. 552, § 6, 32 Stat. 827 [U. S. Comp.' St. Supp. 1905, p. 68].
[819] The act supplementary to the Cullom act has an immunity clause in the following words:
“But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding.” Act Feb. 11, 1893, c. 83, 27 Stat. 443 [U. S. Comp. St. 1901, p. -3173].
Appropriation Act Feb. 25, 1903, c. 755, § 1, 32 Stat. 904' [U. S. Comp. St. Supp. 1905, p. 602], for the enforcement of the Cullom act, the Sherman act, and the Wilson act, exempts from prosecution persons giving testimony in the following language:
“Provided, that no person shall be prosecuted or be subjected to any penalty or forfeiture for, or on account of any transaction, matter or thing concerning which he may testify, or produce evidence documentary or otherwise, in any proceeding, suit or prosecution under said act”
It is necessary to look into the purposes of Congress in passing the commerce and labor act in order that the court may determine what construction will best carry out the legislative intent. It is the duty of the court in construing an act to give it such construction as will carry out the legislative purpose expressed in the act itself. It is clear to my mind that the primary purpose of the commerce and labor act was to enable Congress, by information secured through the work of officers charged with the execution of that law, to pass such remedial legislation as might be found necessary. I regard this as the primary purpose, the chief purpose, a legislative purpose. It is clear from the act itself that, if there be a secondary purpose, the primary purpose, the legislative purpose, was vastly more important in the mind of Congress than any other. Congress. wanted to know how the laws ■ with regard to corporations were operating, how they were being evaded, how to strengthen them, in case they needed strengthening. In my judgment, the purpose of every one of these laws, the high aim of Congress in passing them, was a determined purpose that the corporation, the creature of the law, should not be allowed to grow beyond the law. The commerce and labor act is the repeated attempt of Congress to bring to its aid such information as would enable Congress to do whatever might be necessary for the control of corporations. Perhaps a secondary purpose was the punishment of offenders. It is perfectly clear to my mind that this was not the main purpose, because there were abundant laws already on the statute books for that, and a great department skilled in the work of punishing offenders. And still I am not able to say but that a secondary purpose of the commerce and labor act might have been the punishment of offenders. And I say this because it is not inconsistent with the act, or with the declared primary purpose, that this should be done so far as the corporation itself is concerned. This is made pretty clear by the late decision in the Hale Case. If the statute is to be so construed as to carry out the legislative purpose, viz., secure information for the use of Congress, how can that best be done?
The statute itself surrounds the Commissioner with no forms, puts no legislative limits upon his methods, gives him unusual latitude as [820] to methods. It does not require public hearings. I am of opinion that the act contemplated that he should proceed by private hearings, because it provides in express terms that the President shall decide how much of his investigation shall become public. If the Commissioner should have public hearings, the President would have no chance to perform that portion of the work which the act assigns to him. I therefore conclude that the legislative mind intended that the Commissioner should proceed by private hearings. The powers of the Commissioner of Corporations are defined in section 6 of the act of February 14, 1903 (32 Stat. 827, c. 552 [U. S. Comp. St. Supp. 1905, p. 68]), and are as follows:
“The said Commissioner shall have power and authority to make, under the direction and control of the Secretary of Commerce and Labor, diligent investigation into the organization, conduct, and management of the business of any corporation, joint stock company or corporate combination engaged in commerce among the several States and with foreign nations excepting common carriers subject to ‘An act to regulate commerce,’ approved February fourth, eighteen hundred and eighty-seven, and to gather such information and data as will enable the President of the United States to make recommendations to Congress for legislation for the regulation of such commerce, and to report such data to the President from time to time as he shall require; and the information so obtained or as much thereof as the President may direct shall be made public.
“In order to accomplish the purposes declared in the foregoing part of this section, the said Commissioner shall have and exercise the same power and authority in respect to corporations, joint stock companies and combinations subject to the provisions hereof, as is conferred on the Interstate Commerce Commission in said ‘Act to regulate commerce’ and the amendments thereto in respect to common carriers so far as the same may be applicable, including the right to subpoena and compel the attendance and testimony of witnesses and the production of documentary evidence and to administer oaths. All the requirements, obligations, liabilities, and immunities imposed or conferred by said ‘Act to regulate commerce’ and by ‘An act in relation to testimony before the Interstate Commerce Commission,’ and so forth, approved February eleventh, eighteen hundred and ninety-three, supplemental to said ‘Act to regulate commerce,’ shall also apply to all persons who may be subpoenaed to testify as witnesses or to produce documentary evidence in pursuance of the authority conferred by this section.
“It shall also be the province and duty of said bureau, under the direction of the Secretary of Commerce and Labor, to gather, compile, publish, and supply useful information concerning corporations doing business within the limits of the United States as shall engage in interstate commerce or in commerce between the United States and any foreign country, including corporations engaged in insurance, and to attend to such other duties as may be hereafter provided by law.”
It will be observed that this section by reference gives to the Commissioner of Corporations the same powers with respect to other interstate corporations as the Cullom act and its amendments give to the Interstate Commerce Commission over common carriers so far as the same shall be applicable. These additional powers are contained in section 12 of the amended Cullom act (Act Feb. 4, 1887, c. 104, 24 Stat. 383 [U. S. Comp. St. 1901, p. 3162]), and are as follows:
“ Sec. 12. (As amended March 2, 1889 [25 Stat. S58, c. 382, § 3], and February 10, 1891 [26 Stat. 743, e. 128]). That the Commission hereby created shall have authority to inquire into the management of the business of all common carriers subject to the provisions of this Act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right [821] to obtain from such common carriers full and complete information necessary to enable the Commission to perform the duties and carry out the objects for which it was created; and the Commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General of the United States all necessary proceedings for the enforcement of the provisions of this act and for the punishment of all violations thereof, and the costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of the United States; and for the purposes of this act the Commission shall have power to require, by subpoena, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation.
“Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpcena the Commission, or any party to a proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section.
“And any of the Circuit Courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding.”
Section 6 of the commerce and labor act also by its terms provides that persons testifying or producing evidence before the Commissioner shall be entitled to the immunities conferred by the act in relation to testimony before the Interstate Commerce Commission, of February 11, 1893, called the “Supplemental Act.” This act contains the following provision:
“But no person shall be prosecuted or subjected to any penalty or forfeiture for, or on account of, any transaction, matter or thing concerning which he may testify, or produce evidence documentary or otherwise before said Commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding.”
All of these immunity acts are relied upon by the individual defendants, and, while expressed in slightly varying languáge, they all mean the same thing, and each of them is a substitute for the privilege contained in that clause of the fifth amendment to the Constitution, reading:
“Nor shall any person be compelled in any criminal case to be a witness: against himself.”
This fifth amendment deals with one of the most cherished rights of the American citizen, and has been construed by the courts to mean that the witness shall have the right to remain silent when questioned upon any subject where the answer would tend to incriminate him. Congress by the immunity laws in question, and by each of them, has taken away the privilege contained in the amendment, and it is [822] conceded in argument that this cannot be done without giving to the citizen by way of immunity something as broad and valuable as the privilege thus destroyed. We are not without authority on this question. By a previous act, Congress undertook to take away the constitutional privilege by giving the citizen an equivalent, and the Supreme Court held in the case of Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110, that the substitute so given was not an equivalent. Then, at various times, the immunity acts in question were passed by Congress with full knowledge that in furnishing a substitute for this great right of the citizen, it must give something as broad as the privilege taken away. It might be broader, but it could not be narrower.
Now, in my judgment, the immunity law is broader than the privilege given by the fifth amendment, which the act was intended to substitute. The privilege of the amendment permits a refusal to answer. The act wipes out the offense about which the witness might have refused to answer. The privilege permits a refusal only as to incriminating evidence. The act gives immunity for evidence of or concerning the matter covered by the indictment, and the evidence need not bé self-incriminating. The privilege must be personally claimed by the witness at the time. The immunity flows to the witness by action of law and without any claim on his part. Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale v. Henkel (recently decided) 26 Sup. Ct. 370, 50 L. Ed. -; State v. Quarles, 13 Ark. 307, quoted in 142 U. S. 567, 12 Sup. Ct. 199 (35 L. Ed. 1110) ; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; Brown v. Walker, approved in Lamson v. Boyden, 160 Ill. 613, 620, 621, 43 N. E. 781; People v. Butler, St. Foundry, 201 Ill. 236, 248, 66 N. E. 349.
I am further of opinion that the immunity given by the act must be as broad as the liabilities imposed by the act. The act calls upon the citizen to answer any “lawful requirement” of the Commissioner. “Require” means to ask of right and by authority. Webster’s Dictionary. Tenn. Coal Co. v. Waller (C. C.) 37 Fed. 545, 547. Anything is a requirement by a public officer which brings home to the person called upon that the officer is there officially and desires compliance. “Demand” and “require” are synonyms. Miller v. Davis, 88 Me. 454, 34 Atl. 265. The citizen may be punished for refusal to answer such lawful requirement. I am of opinion that when the Commissioner of Corporations, who has power to compel, makes his demand, it is the duty of the witness to obey.
The contention has been made that in order to get immunity the citizen shall wait until the compulsion becomes irresistible. That is the effect of the government contention. I am not able to bring my mind to accept that doctrine. If I am right in saying that immunity' flows from the law, without any claim on the part of the defendant —and at different times that has been conceded here in argument— then no act of any kind on his part which amounts to a claim of immunity, which amounts to setting'up a claim of immunity, is demanded by the law. The law never puts a premium on contumacy. A person does not become a favored citizen by resistance tó a lawful [823] requirement. On the contrary, the policy of the law favors the willing giving of evidence whenever an officer entitled to make a demand makes it upon a citizen who has no right to refuse. And it would be absurd and un-American to favor the citizen who resists and places obstacles in the way of the government as against the citizen who, with a full knowledge of the law, obeys without resistance the demand of an officer who has the legal right to make the demand for something which the citizen has no legal right to refuse. This, then, is the proposition to which we are led: When an officer, who has a legal right to make a demand, makes such demand upon a citizen, who has no legal right to refuse, and that citizen answers under such conditions, he answers under compulsion of the law.
Is that the situation here? Was there compulsion in this case, or were the defendants volunteers? There is so little dispute here about the facts that perhaps it is not necessary to discuss them at all. I am of opinion that the conference between Mr. Garfield, Mr. Krauthoff, Mr. McRoberts, and Mr. Dawes is the important matter, the important event, which fixes the character of condition under which this evidence was given. There is some little dispute. It may be said that Mr. Garfield is an interested witness, as a representative of the government. It may be said that Mr. McRoberts and Mr. Krauthoff, they being at the time in the employ of the Armour Company, and one of them being now a defendant, are interested witnesses. But there is little, if any, dispute, perhaps only on one subject, between Garfield and Dawes, only as to the oath, as to the fact that the oath was discussed. They agree in substance on every other proposition. Garfield says there was no discussion of the oath. Mr. Dawes agrees with Krauthoff and McRoberts that there was. I am not able to look at the evidence which was furnished in this case as being the voluntary production of these defendants. The character of such parts of it as I deemed the most important is such that it absolutely dispels any thought of that kind from my mind. Reasoning naturally, reasoning upon the natural course which men in like condition would have taken, I am led to the conclusion that the defendants would have withheld that information if they could.
It is contended that they were volunteers because they higgled with Garfield at times, debated, resisted, gave less than he first asked, withheld some. The record does show this, but the fact remains that every approach was made by the government. In no instance did the defendants go to Garfield offering anything. Garfield made his demands, made them explicit, made them definite, and it does not to my mind destroy the character of compulsion under which they acted that the defendants, after having considered the law, and after having made up their minds that they had no legal right to resist, still debated with the Commissioner in the hope of inducing him to minimize his demands and take something less than he had originally demanded. This in some instances was done. Garfield came to them. They did not go to him. He demanded in writing, and through his accredited representatives; and I would not regard it as proper to hold him for any actions of his representatives, the result of which did not flow straight [824] to him, through them, from the defendants. But, so far as such results did flow straight to him in answer to his demands, they were negotiations between him and the defendants on his legal demands, which they had no right to dispute, or refuse to answer. He came to the defendants and presented them with the law. He held up before them his power as Commissioner. The defendants knew the law. They had been fully advised. They took further time after his first interview, and were advised further. They saw that the Martin resolution, under the eighth section of the law, made Garfield’s duty imperative. After the passage of that resolution the defendants saw that Garfield was compelled to act, compelled to demand, and they were compelled to answer.
I regard Garfield as having been under the strictest legal compulsion by the terms of the Martin resolution. It may be said that he could have gone somewhere else and got his information. The record shows that he himself said that he could not; that he could not make the investigation imposed upon him as a legal duty by the Martin resolution and the eighth section of the law without getting it from these people. And the investigation itself disclosed that they are the authors of nearly one-half of all the business in their line in the whole country. So that I think he was compelled to demand from them, as well as they were compelled to answer, under this statute and resolution. Now, if the defendants volunteered nothing, but gave only what was demanded by an officer who had the right to make the demand, and gave it in good faith under a sense of legal compulsion, I am of opinion that they are entitled to immunity under the act.
But it is insisted by the government that they did not give under compulsion, because they did not give under what is known in the law as testimonial compulsion; and it is argued that testimonial com.pulsion means compulsion furnished by the subpoena and oath. I can add nothing to what has been adduced by way of argument here on those subjects. The subpoena is not necessary where the person is present in court or within the verge of the court-. Goodpaster v. Voris, 8 Iowa (8 Clarke) 334, 74 Am. Dec. 313; Leckie v. Scott, 10 La. 412. So the rule is the same as to the production of documents. Hunton v. H. & H. Co. (Mich.) 76 N. W. 1041; Starr v. Mayer, 60 Ga. 546. The only object of the subpoena is to secure the attendance. It is superfluous whén he is present without subpoena. U. S. v. Sanborn (C. C.) 28 Fed. 299, at page 302, per Mr. Justice Gray; Eastman v. Sherry (C. C.) 37 Fed. 844, 845, per Jenkins, J.; Farmer v. Storer, 11 Pick. (Mass.) 241. “Lex neminem cogit ad vana seu inutilia.” Land Co. v. Peck, 112 Ill. 408, 439. Under the judiciary act, providing for allowance “to the witnesses summoned in any court of the United States,” it was held that the fees of a witness who attended at the request of the United States attorney without having been summoned, were taxable. U. S. v. Williams, 1 Cranch, C. C. 178, Fed. Cas. No. 16,709; Prouty v. Draper, 2 Story, 199, Fed. Cas. No. 11,447; Whipple v. Cumberland Cotton Mfg. Co., 3 Story, 84, Fed. Cas. No. 17,-515; Hathaway v. Roach, 2 Woodb. & M. 63, 73, Fed. Cas. No. 6,213, approved by Gray, Circuit Justice, in U. S. v. Sanborn (C. C.) 28 Fed. 301. So a witness who attends without subpoena attends “pursu[825] ant to law.” U. S. v. Sanborn (C. C.) 28 Fed. 299, 302; Hanchett v. Humphrey (C. C.) 93 Fed. 895-897; U. S. v. Bell (C. C.) 81 Fed. 830; St. Matthews Bank v. Fidelity Co. (C. C.) 105 Fed. 161. I am clearly of opinion that the best judgment to be had from all of the authorities is that the subpoena is a useless and superfluous thing after the tribunal and the witnesses are together. And I am also of opinion that under any of these acts in question, these immunity laws, the production of books and papers would be legal evidence without the oath of any person, when they are adduced as showing admissions against interest and against the party producing them.
Upon the authority in the cases of Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568, and Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, legal compulsion does not depend upon subpoena or oath, and upon reason this must be so. Books and documents prove themselves, when produced for the purpose of showing admissions against interest. They are receivable as evidence in all courts against the party producing them. The oath is not always essential to testimony. Osborne v. Detroit (C. C.) 32 Fed. 36. No oath is essential to the compulsion to produce documents in a witness’ possession. A person who is required to produce documents in his possession, and produces them, need not be sworn in order to get from him the documents. Perry v. Gibson, 1 Ad. & Ell. 48; Id., 3 Nev. & M. 462 (K. C. B.); Davis v. Dale, 1 M. & M. 514; Simpson v. Smith, 1 Starkie on Ev. 161, note (n); Summers v. Moseley, 2 Cromp. & Mees. 477; 3 Wigmore, § 1894, note 1. Further, the oath may be waived, and is waived by failing to insist on it or raise the objection. Moore v. State, 96 Tenn. 209, 33 S. W. 1046; Goldsmith v. State, 32 Tex. Cr. R. 112, 22 S. W. 405; Birch v. Somerville, 2 Ir. Law R. N. S. 243; Richards v. Hugh, 51 L. J. Q. B. 361; Cady v. Norton, 14 Pick. (Mass.) 236; Slauter v. Whitelock, 12 Ind. 338; State v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608; State v. Smith (Iowa) 100 N. W. 40, 42. Books and papers produced by these defendants as the books and records of their business, and called for as such, are evidence against them, without any oath. If I am right in the proposition that the immunities given by the act are as broad as the liabilities imposed by the act, then the subpoena and the oath were no’t essential. Garfield could make a legal requirement without using either the subpoena or the oath. I think this is clear from the language of the act. If the Commissioner could make a legal demand without a subpoena, then immunity would follow to the witness answering without a subpoena. It is true that section 6 of the commerce and labor act of February 14, 1903 (32 Stat. 827, c. 552 [U. S. Comp. St. Supp. 1905, p. 68]) says that immunity shall apply to all persons “who may be subpoenaed,” etc. Now it would be absurd to say that a person subpoenaed would have immunity if he produced no evidence, and, as the subpoena alone cannot give immunity, so. the lack of that alone cannot take it away.
The same argument will apply to the oath. The purpose of the oath was to secure the truth. That is always the purpose of the oath. That is the only purpose of the oath; and, to be certain that we get the truth, the court always starts out by putting the witness under oath. But the act under which Garfield was clothed with power did not re* [826] quire him to put anybody under oath. It required him to make investigation. He might make it according to legal forms or not. He might use any kind of evidence that he chose that was suitable to his purpose. The evidence procured from these defendants, so far as it consisted of books and papers, was, however, legal evidence — would be considered legal evidence in a court of law; and under any one of these acts the production of the books and papers is a complete compliance with the law providing for the production of evidence, documentary or otherwise. It is not strange that Garfield was satisfied not to swear the defendants, although he started out with that intention. He distinctly told them so, and his forms show that fact. He expected to put them on oath if he regarded it as necessary, if he had any doubt about the truthfulness of the evidence. He had access to the books of original entry. He was satisfied of that fact. His agents were satisfied of that fact. The record shows this over and over again by repeated answers, and there was not the slightest reason for putting anybody under oath, so far as the use of those books and documents was concerned. The oath of any one would have made that evidence no stronger or better than it is now without the oath.
If it shall be said that the act of February 14, 1903, establishing the Department of Commerce and Labor, allows immunity to the witness only upon the conditions urged by the government, viz., that he shall have resisted until regularly subpoenaed and sworn, no such contention can fairly be made as to the immunity clause of the act of February 25, 1903. The record shows, and it is not disputed, that material evidence was procured by Garfield from the defendants upon the subject of an unlawful combination. I have already held that it was given under legal compulsion. The record further shows that this evidence was demanded by the Department of Justice for the purposes of this prosecution, and that Garfield declined to give it, as he had promised the defendants it would not be so used; that later, upon repeated demands of the Department of Justice, and upon the order of the President, he turned it over to that department. It is contended that as to all such evidence the defendants are entitled to immunity under the independent and unconditional act of February 25, 1903, and I am of opinion that they are so entitled.
It is contended on behalf of the government that the construction here given to the the commerce and labor law would result in the failure to convict individuals for the prosecution of whom the Commissioner of Corporations might be assisting, and thus the law would be nullified; that guilty persons would rush to the officer with their evidence and receive immunity. The answer to this contention is that the primary purpose of the act is to correct defective legislation, and, if an additional purpose be the prosecution of offenders, such additional purpose is clearly secondary. To effect the primary purpose, viz., secure information for the use of the legislative body, the construction here given would be highly efficient, as the persons required to give ■evidence, being personally immune, would probably testify willingly, while those coming unbidden would be volunteers and not entitled to immunity. I am also presented with the argument that the questions are of great public interest. Therefore the defendants should be held [827] to trial, to the end that upon a final judgment, if adverse to the defendants, the questions arising on the pleas might be reviewed by the Supreme Court, which would not be possible if the decision be adverse to the government. I know that courts have sometimes yielded to this argument in cases of public importance, usually where property rights only were involved; but I think it should not be the controlling motive for the decision here. The parties are entitled to the best judgment of the court upon the questions involved. I am of opinion that the record shows the individual defendants to have given under legal compulsion evidence of and concerning the matters contained in the indictment, and that they are therefore entitled to immunity.
Gentlemen of the jury, under the law of this case, the immunity pleas filed by the defendants will be sustained as to the individual defendants, the natural persons, and denied as to the corporations, the artificial persons, and your verdict will be in favor of the defendants as to the individuals, and in favor of the government as to the corporations.