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and so $ 266 of the Judicial Code cannot be invoked for their adjudication. As to these appellees, the judgment below should be vacated and the case remanded to the District Court for any proceedings that may be appropriate before a single judge. But compare Gilchrist v. Interborough Co., 279 U. S. 159.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join in these views
COBBLEDICK ET AL. v. UNITED STATES.*
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE
No. 571. Argued January 30, 1940.-Decided February 26, 1940.
An order of the District Court denying a motion to quash a sub
poena duces tecum requiring one to appear with papers and testify before a grand jury is not a "final decision” within the meaning
of Jud. Code 8 128 (a). Pp. 324, 330. 107 F. 2d 975, affirmed.
CERTIORARI, 308 U. S. 547, to review judgments dismissing, for want of jurisdiction, appeals from orders denying motions to quash subpoenas duces tecum.
Mr. Donald R. Richberg, with whom Messrs. Felix T. Smith and Chalmers G. Graham were on the brief, for petitioners.
Mr. Wendell Berge, with whom Solicitor General Biddle, Assistant Attorney General Arnold and Mr. James C. Wilson were on the brief, for the United States.
*Together with No. 572, Brauner et al. v. United States, and No. 573, Palmuth et al. v. United States, also on writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit.
Opinion of the Court.
Opinion of the Court by MR. JUSTICE FRANKFURTER, announced by the CHIEF JUSTICE.
The District Court for the Northern District of California denied motions to quash subpoenas duces tecum addressed to the petitioners and directing them to appear and produce documents before a United States grand jury at the July, 1939, term of that court. From the denial of these motions petitioners sought review by way of appeal to the Circuit Court of Appeals for the Ninth Circuit, 107 F. 2d 975. That court found itself to be without jurisdiction and dismissed the appeals. We brought the cases here, 308 U. S. 547, because of conflict between the decision below and that of the Circuit Court of Appeals for the Second Circuit, In re Cudahy Packing Co., 104 F. 2d 658. The matter in controversy—and the sole question raised in all three cases—vitally concerns the effective administration of the federal criminal law. The question is whether an order denying a motion to quash a subpoena duces tecum directing a witness to appear before a grand jury is included within those "final decisions” in the district court which alone the circuit courts of appeal are authorized to review by $ 128 (a) of the Judicial Code (28 U. S. C. $ 225).
Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act’ and has been departed from only when observance of it would practically defeat the
Section 128 (a) provides that, “The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions. ..." Similar language was used in the Act of 1891, c. 517, 26 Stat. 828.
$$ 21, 22, 25 of the Act of September 24, 1789, 1 Stat. 73, 83-85. For a discussion of the historical background, English and American, of the finality concept, see Crick, The Final Judgment as a Basis for Appeal, 41 Yale L. J. 539.
Opinion of the Court.
right to any review at all. Since the right to a judgment from more than one court is a matter of grace and not a necessary ingredient of justice, Congress from the very beginning has, by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration. Thereby is avoided the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause. These considerations of policy are especially compelling in the administration of criminal justice. Not until 1889 was there review as of right in criminal cases. An accused is entitled to scrupulous observance of constitutional safeguards. But encouragement of delay is fatal to the vindication of the criminal law. Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court's rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction
*See 129 of the Judicial Code, 28 U. S. C. $ 227, dealing with appeals from interlocutory injunctions, appeals from interlocutory decisions in receivership cases and from interlocutory decrees determining rights and liabilities in admiralty litigation.
* See United States v. More, 3 Cranch 159. Only by certificate of division of opinion in the circuit courts could review be obtained. See Curtis, Jurisdiction of the United States Courts, 82. By the Act of 1889 review as of right was allowed in capital cases. 25 Stat. 655, 656. For the history of federal criminal appeal see United States v. Sanges, 144 U. S. 310, 319–22.
Opinion of the Court.
before its reconsideration by an appellate tribunal. Cogen v. United States, 278 U. S. 221.
In thus denying to the appellate courts the power to review rulings at nisi prius, generally, until after the entire controversy has been concluded, Congress has sought to achieve the effective conduct of litigation. For purposes of appellate procedure, finality—the idea underlying "final judgments and decrees” in the Judiciary Act of 1789 and now expressed by "final decisions” in $ 128 of the Judicial Code-is not a technical concept of temporal or physical termination. It is the means for achieving a healthy legal system. As an instrument of such policy the requirement of finality will be enforced not only against a party to the litigation but against a witness who is a stranger to the main proceeding. Neither a party nor a non-party witness will be allowed to take to the upper court a ruling where the result of review will be "to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation ... Mr. Chief Justice Taft, in Segurola v. United States, 275 U. S. 106, 112. This is so despite the fact that a witness who is a stranger to the litigation could not be party to an appeal taken at the conclusion of the main cause. Such was the ruling in Alexander v. United States, 201 U. S. 117. In that case, witnesses were directed to appear and produce documents before a special examiner designated by the circuit court to hear testimony in a suit brought by the United States to enforce the Sherman Law. Upon refusal to submit the documents called for in the subpoena, the United States petitioned the circuit court for an order requiring compliance. The petition was granted, and appeals were then allowed to this Court. These appeals were dismissed for want of jurisdiction. The grounds of the decision are best indicated in the language of the opinion:
Opinion of the Court.
"In a certain sense finality can be asserted of the orders under review, so, in a certain sense, finality can be asserted of any order of a court. And such an order may coerce a witness, leaving to him no alternative but to obey or be punished. It may have the effect and the same characteristic of finality as the orders under review, but from such a ruling it will not be contended there is an appeal. Let the court go further and punish the witness for contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the progress of the case ... This power to punish being exercised the matter becomes personal to the witness and a judgment as to him. Prior to that the proceedings are interlocutory in the original suit." 201 U. S. at 121–22.
We must now decide whether the situation of a witness summoned to produce documents before a grand jury is so different from that of the witness in the Alexander case that the sound considerations of policy controlling there should not govern here. The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings. The proceeding before a grand jury constitutes "a judicial inquiry," Hale v. Henkel, 201 U. S. 43, 66, of the most ancient lineage. See Wilson v. United States, 221 U. S. 361. The duration of its life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the "orderly progress" of investigation should no more be encouraged in one case than in the other. That a grand jury proceeding has no defined litigants and that none