201 U.S. Argument for Plaintiffs in Error. These proceedings are not properly incidental, but collateral, having a distinct and independent character. They belong to the class known as ancillary, in which the form is determined by the circumstances of each case. So far as the question of appealability goes, they are subject to the same rules as original and independent actions. Krippendorf v. Hyde, 110 U. S. 276, 280, 287; Freeman v. Howe, 24 How. 450, 460; Christmas v. Russell, 14 Wall. 69, 80; Rouse v. Letcher, 156 U. S. 47, 50; Stewart v. Dunham, 115 U. S. 61, 64; Carey v. Houston &c. Ry. Co., 161 U. S. 115, 126; Pope v. Louisville &c. Ry. Co., 173 U. S. 573. The present proceedings have all the distinguishing characteristics of any suit in equity or action at law. The test of finality as to any particular order, under the decisions of this court, is this: An order, to be appealable, or final for the purposes of appeal, must be conclusive upon the merits and must leave the matter in controversy in such a condition that if there be an affirmance here the court will have nothing to do but to execute the order it has already entered. Bostwick v. Brinkerhoff, 106 U. S. 3; St. L. &c. R. Co. v. Southern Expr. Co., 108 U. S. 24; Winthrop I. Co. v. Meeker, 109 U. S. 180; Mower v. Fletcher, 114 U. S. 127; Trustees v. Greenough, 105 U. S. 527. It has been held that the final order or decree in ancillary proceedings is governed by the same rules, in respect of appeals to the Supreme Court, as the decree in the principal suit. Pope v. Louisville &c. Ry. Co., 173 U. S. 573; Carey v. Houston &c. Ry. Co., 161 U. S. 115; Rouse v. Letcher, 156 U. S. 47. If, however, there is any question whether the act of February 11, 1903, applies to appeals in such cases as the present, there can be no doubt of the right of appellants to obtain a review of the orders appealed from by direct appeal to the Supreme Court under the provisions of section 5 of the act of March 3, 1891. Loeb v. Township Trustees, 179 U. S. 472; W. U. Tel. Co. v. A. A. R. R. Co., 178 U. S. 239; Penn. Mut. L. Ins. Co. v. Austin, 168 U. S. 685. Argument for the United States. 201 U. S. Mr. Frank B. Kellogg and Mr. James M. Beck, Special Assistants to the Attorney General, with whom The Attorney General was on the brief, for the United States in these cases and in Nos. 381, 382, 383, 384 and 385: Whether finally admissible or not, the evidence should be given and received before the examiner, inasmuch as all questions of materiality, relevancy and competency must be left primarily for determination upon final hearing by the United States Circuit Court for the District of Minnesota where the cause is pending, and ultimately for decision by this court when the suit shall be considered here on appeal. Blease v. Garlington, 92 U. S. 1. Had the witnesses, instead of appealing from the order and taking a writ of error from the judgment of contempt, sued out a writ of habeas corpus, this court would have had jurisdiction on appeal from a judgment discharging the writ. Ekiu v. United States, 142 U. S. 651; Horner v. United States, 146 U. S. 120. And it is only the question of the validity of the judgment overruling their plea under the Constitution that can be considered. In re Tyler, 149 U. S. 164; In re Lennon, 166 U. S. 552. A writ of error from the judgment of contempt will bring up no other question. Bessette v. Conkey Co., 194 U. S. 324. The rule in Blease v. Garlington has been followed in numerous cases. In re Allis, 44 Fed. Rep. 216, contra, is not in point, and it does not appear that Blease v. Garlington was called to the attention of the judge deciding the case. Where the ex The evidence was material and admissible. istence of the books and papers desired is established, the ability to produce them is shown, and the books and papers are apparently important and material to the case of the moving party, their production will be required. It is obviously impossible in applications of this character to determine the materiality of all of the contents of the books and papers in advance. United States v. Babcock, Fed. Cas. No. 14,484; Coit v. North Carolina, Gold &c. Co., 9 Fed. Rep. 577. There is no doubt that as a witness a party can be compelled 201 U. S. Argument for the United States. by a subpœna duces tecum to produce books, documents and papers in his possession in the same manner as any other witness. Bischoffsheim v. Brown, 29 Fed. Rep. 341, 343. And the officers of a corporation may be required as witnesses to produce its books when the books are necessary evidence. Wertheim v. Continental Ry. & Trust Co., 15 Fed. Rep. 716; Johnson Steel Street-rail Co. v. North Branch Steel Co., 48 Fed. Rep. 196; Edison Electric Light Co. v. U. S. Electric Ltg. Co., 44 Fed. Rep. 294; S. C., 45 Fed. Rep. 55; Johnson Co. v. North Branch Co., 48 Fed. Rep. 191. Under issues of the character raised in this cause, the entire manner of conducting the business of the General Paper Company is competent and material evidence. Interstate Commerce Commission v. Baird, 194 U. S. 25. The claim of privilege is solely a personal one. Wigmore on Evidence, §§ 2195-2210; Brown v. Walker, 161 U. S. 597. These witnesses cannot claim the privilege of silence either under the general principles of common law and equity jurisprudence and procedure, or under the Fourth and Fifth Amendments. It is true that under the ancient practice in actions at common law a party might not compel his opponent to furnish evidence as a witness. His only remedy was by way of a bill of discovery in equity. Wigmore on Evidence, §§ 2217, 2218. This limitation, however, never existed in equity. 1 Greenleaf on Evidence, 15th ed. § 361; 1 Daniells on Ch. Prac. 5th ed. 885, note 6; Adams on Equity, 7th ed. 36; Wigmore on Evidence, §§ 2218, 2219, pp. 3012, 3014-3016. A party will be compelled to make a disclosure of all facts within his knowledge, or books and documents in his possession, which tend either to establish his opponent's case or to refute the position which he himself takes. Bustros v. White, Eng. Law Rep. Q. B. Div. 423; Atty. Gen. v. Emerson and another, Law Rep. 10 Q. B. Div. 191; Arnold v. Pawtuxet Valley Water Co., 18 R. I. 189. Modern legislation has made the bill of discovery an unnec Argument for the United States. 201 U. S. essary adjunct even in actions at law. Material evidence may now be required of a party in such actions, without resorting to this cumbersome proceeding. 1 Pomeroy on Eq. Jur. 2d ed. § 193; Wigmore on Evidence, § 2219; 14 and 15 Victoria, c. 99, §6; Rev. Stat. of Wisconsin (1898), § 4183, as amended by c. 244, Laws of 1901; Rev. Stat. § 858. The guaranty of the Fifth Amendment that no person shall be compelled in a criminal case to be a witness against himself does not protect corporations. Brown v. Walker, 161 U. S. 591; Interstate Com. Com. v. Baird, 194 U. S. 25; Morgan v. Halberstadt, 60 Fed. Rep. 592; N. Y. Life Ins. Co. v. People, 195 Illinois, 430; State v. Jack, 69 Kansas, 387. In so far as the penalty or forfeiture may be criminal in its character the guaranty of the Fifth Amendment applies, and is entirely saved by the immunity statute; in so far as the penalty or forfeiture is other than criminal, in so far as it involves the loss or forfeiture of the claim to a continued violation of the laws of the land, there is no principle either of constitutional law or of equity jurisprudence which may be invoked to relieve against it. It was settled at an early date that pecuniary loss to the witness was not one of the penalties or forfeitures intended to be protected against by the Constitution. See opinion of Chief Justice Shaw in Bull v. Loveland, 10 Pick. 9, which has been followed uniformly by all of the courts in the United States. 1 Greenleaf on Evidence, 15th ed. § 452; Lowney v. Perham, 20 Maine, 240; Ward v. Sharp, 15 Vermont, 115; Harper v. Borough, 6 Ired. 30; Robinson v. Neal, 21 Kentucky, 212. It is also held that a penalty of forfeiture must be penal in its nature, as distinguished from pecuniary loss suffered as a consequence of civil liability. Boyd v. United States, 116 U. S. 616; Lees v. United States, 150 U. S. 476; Huntington v. Attrill, 146 U. S. 657; Brady v. Daly, 175 U. S. 148; City of Atlanta v. Chattanooga Foundry & Pipe Co., 101 Fed. Rep. 900; State v. Jack, 69 Kansas, 387; State v. Standard Oil Co., 61 Nebraska, 28; Southern Ry. Co. v. Bush, 122 Alabama, 470; Levy v. Supe rior Court, 105 California, 600; Ames v. Kansas, 111 U. S. 449; 3 Wigmore on Evidence, § 256; 2 Beach on Private Corporations, § 840. MR. JUSTICE MCKENNA, after stating the case as above, delivered the opinion of the court. Plaintiffs in error urge three main contentions, which we will consider in their order. I. That the evidence, documentary and oral, which the witnesses were required to produce, was not shown to be material to plaintiff's case. 1. There are three answers to this contention. (1) The evidence is clearly material. The charge of the bill is that the defendant manufacturing corporations entered into a conspiracy and combination in violation of the act of July 2, 1890, to suppress competition between themselves, and that they accomplished this purpose by organizing the General Paper Company, and gave it certain controlling powers over the output of the mills and the prices and distribution of their products. Before the application to the court for the orders under review there were certain facts established. It was established that in the fall of 1889 and the spring of 1900 there were preliminary meetings of the parties to ultimately form the paper company, and that it was subsequently formed by those representing the manufacturing companies, who subscribed for the stock. In July, 1900, the corporations as represented in the paper company, fourteen in all, entered into contracts with it, making it their exclusive selling agent; that each constituent manufacturing company was represented by one of its principal officers upon the board of directors of the paper company, and the number of directors have been increased as other corporations have made the paper company their selling agent. A table of the constituent companies was given and the times the companies became members of the paper company. And it was established that there was an executive committee, comprised |