Wilmington September 15. 1807
Honored & Dear Sir—
The importance of the questions submitted to my consideration in your letter of the 26. of August, has induced me to keep them a considerable time under advisement, to revolve the subjects they embrace much in my own mind, to review the opinion I originally entertained, & to recur to the authorities applicable to the case—
After a very attentive research into the books & mature deliberation I am firmly persuaded—
1. That a circuit court of the U.S. sitting in one District cannot have an attachment executed in another to compel the attendance of any person as a witness on a trial in the former District, who is resident & has been served with a subpoena in the latter—
2. That they cannot legally issue, in such case, an attachment against any person, bound by obligations superior to those of a witness, & who has public duties to perform imposed by the Constitution or laws of the U.S. which his attendance as a witness would prevent him from executing with punctuality & fidelity.
3. That there is no such process to compel the attendance of persons residing in a different District from that in which the Court sits, that grants a rule for taking depositions, to appear before any judge or justice & give their testimony—
I By the sixth section of an act of congress passed on the 2nd. of March 1793 (2 Vol. page 228) it is provided: “That subpoenas for witnesses who may be required to attend a court of the United States in any district thereof, may run into any other District: Provided, That in civil causes, the witnesses living out of the district in which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the same.”
The question arises, whether upon the true construction of this section, in case of disobedience to a subpoena, the Court of one District can have an attachment executed in another. If it were the intention of the legislature to grant such a power they would, I apprehend, have provided an officer to carry it into effect—This process of attachment is, to all intents & purposes, a warrant of the United States, issuing from the criminal side of the Court, to take the body of a supposed offender & to bring him without bail or mainprize into Court, to be punished for a contempt in a Summary way, deprived of the benefit of both grand & petit jury—It is true when he appears before the Court, he may be bailed, on entering into a recognizance to answer interrogatories, filed according to the course of proceeding upon attachments. Untill this period, however, from the moment of arrest, there is no relief for the prisoner. If the attachment were issued by a competent authority, & was legally executed, it would be a sufficient warrant on a Habeas Corpus for detaining the offender—
I beleive where an indictment is found, even for the highest crimes, as treason or murder, before any court of the U.S. having competent jurisdiction, a bench warrant issued by the said Court, into a different District from that in which the indictment was found, would not be considered a sufficient authority to arrest the offender—It could, even in those instances of offences of the highest grade, have no operative force or effect, beyond the limits of the District from which it issued—Congress have, it is to be presumed for this reason, prescribed a mode of arresting criminals & transmitting them to the proper District for the trial of their offences. By the thirty third section of the act of the 24. Septr. 1789. (1 Vol. p. 72.) it is provided—“That for any crime or offence against the United States, the offender may, by any justice or judge of the U. States, or any justice of the peace, or other magistrate of any of the United States where he may be found, agreeably to the usual mode of proceeding against offenders in such State, and at the expence of the United States, be arrested, & imprisoned or bailed, as the case may be, for trial before such court of the United States as by this act has cognizance of the offence: And copies of the process shall be returned as speedily as may be into the clerk’s office of such court, together with the recognizances of the witnesses for their appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment. And if such commitment of the offender, or the witnesses, shall be in a district other than that in which the offence is to be tried, it shall be the duty of the judge of that district, where the delinquent is imprisoned, seasonably to issue, & of the marshal of the same district to execute, a warrant for the removal of the offender, & the witnesses, or either of them, as the case may be, to the district in which the trial is to be had.”
By this law the manner & the means of arresting an offender are pointed out, & an officer designated who is to take him in custody to the place of trial.
In tracing the practice of issuing attachments against witnesses to its origin, in that country from which it has been transplanted into our own, we find it is a proceeding of modern date.
In Sellon’s Practice 1 Vol. p. 465 it is said: “The remedy by attachment is a modern proceeding, the C. Justice in 22. Geo. 2. said he remembered the first motion for them: and it was a long time after the court of King’s bench had adopted this mode, that the court of common pleas would accede to it.—Huffe v. Towke, Barn 33. Chapman v. Pointon, Stra. 1150.”
In Crompton’s Practice (1 Vol. p. 242.) it is stated that “The course of the Common Pleas is not to grant an attachment against a witness for not attending at the trial, but leave the party to his remedy on the Stat. 5 of Eliz. c. 7 f.12. to recover the penalty on such default, &c. Barnes, 33.”
In the case of Bowles vs. Johnson in the King’s Bench Michaelmas Term 22. Geo. 2. to be found in Sir Wm. Blackstone’s Reports vol. 1. p. 36. it is observed by Lee C. Justice: “This is a new case. Attachments are a new practice. I remember the first motion for them. It was then agreed, that the same restrictions should be used in attachments as in actions on the 8. Eliz. one of which is, that a tender of expences should be made at the Service of the Subpoena.” And by “Wright Justice: In Chapman & Pointon, F. 14. Geo. 2. Two Guineas were tendered to an evidence on a Subpoena. The Court thought it not sufficient, so would not grant an attachment, though the witness would not come. Attachments are not yet granted in G.B.” In Douglass’ Reports, & he is in general very accurate, there is a dictum of Lord Mansfield’s stated to the contrary, but I suspect the reporter is in this instance incorrect—
All the cases I have cited, it may be remarked are civil causes, but it must be observed that the Court speak in broad & general terms on the subject of the process of attachment, embracing indiscriminately civil & criminal causes. In this last species some have maintained the opinion that attachments against witnesses on behalf of the crown are very antient, tho’ unknown to this day for a prisoner, an opinion perhaps not warranted by principle or precedent—
I beleive a reference to the authorities will bear me out in this position, that in England the process of attachment is not used to bring in witnesses ad testificandum, but always ad puniendum. It is not issued to compel their attendance on the trials, but to inflict punishment for their neglect, after the trial has been had. It is not a compulsory process to procure their presence before the Court & jury on the investigation & decision of the issues, but is a subsequent remedy to which the party is on certain conditions entitled in consequence of their non-attendance. 1. Sir Wm. Blackstone’s Rep. 36. 2. Ha. 810. 2. Ray. 1528.
In every case, in which an attachment has been moved for, that a diligent research has enabled me to discover, it appears that the trial has been had, or the proceedings terminated. As in 8. Term Reports 585. when an attachment was granted against a witness, who, upon being personally served with a subpoena, neglected to attend before a grand jury, in consequence of which a bill presented to them against a felon, has been thrown out or returned ignoramus. I suspect no precedents of a different description are to be found in the books.
The only compulsory process known in England to compel the attendance of a witness on the trial to testify in the cause, is the writ of subpoena, which commands him to appear on the trial, under the penalty of £100: to which in criminal cases may with propriety be added, that of a recognizance to appear & testify. In the elementary writers & in the various books of practice the process spoken of to compel the attendance of an unwilling witness is uniformly subpoena.
In the 3. Vol. of Blackstone’s Com. page 369. we find it stated: “With regard to parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpoena ad testificandum”. And in the Same page the learned Commentator says “This compulsory process to bring in unwilling witnesses” &c.
In the lectures of Mr. Woodeson the present Venerian Professor 3. Vol. p. 271. 2. He observes “The first consideration respecting witnesses is the bringing of them in to be examined. It is certainly a very reasonable retrenchment of natural liberty, that every citizen should be compellable to appear & give evidence, where it may tend to quiet contested property, to repair private injuries, to vindicate the public justice of the kingdom, or above all to disculpate calumniated innocence. There is therefore established a regular mode to enforce the appearance of witnesses, being a writ specifying a pecuniary penalty for a disobedience to its injunctions: This seems to have been always the law in suits between private parties. But whether a defendant in capital prosecutions, which are carried on, in the king’s name, had the power of exacting the attendance of those on whose testimony he relied, was made a question, till two statutes, in the several reigns of king William & queen Ann, cleared this very important doubt; and it is now settled, that the same compulsory process to bring in witnesses, may be used in all cases whatsoever.”
In Tidd’s Practice, a modern work of great merit, vol. 2. p. 735. We find it stated “The mode of procuring the attendance of witnesses is by subpoena ad testificandum, which is a judicial writ, commanding them to appear at the trial, to testify what they know in the cause, on the part of the plaintiff or defendant, as the case is, under the penalty of £100. each.”
In Sellon’s Practice 1. Vol. p. 460. in the section entitled “of the process to compel the appearance of witnesses” it is stated “As it is incumbent upon the parties in the suit to prove by evidence the matter in dispute between them, and as the witnesses, who alone can prove the material facts, may be either inimical, or at least indifferent to the cause, or unwilling to attend, it is obviously necessary for the administration of justice, & the investigation of truth, that there should be some compulsory process to bring in such unwilling witnesses. This process in both courts, is by writ of subpoena ad testificandum.”
In Peache’s compendium of evidence p. 191. it is also stated “To enable a man to produce his witnesses before a jury in cases where they will not voluntarily appear on his behalf, the law has provided a compulsory remedy by the writ of subpoena.”
But to recur to writers on the subject of criminal law, let us attend to what is stated in a note to 2. Hawk. P.C. 614. “The compulsory process to bring in witnesses in criminal causes is either by subpoena issued in the king’s name by the justices where the plea of not guilty is to be tried. Or the justices or coroner, who take the examination of the person accused; and the information of the witnesses may at that time (and this is the usual way), or at any time after, before the trial, bind over the witnesses to appear at the sessions, and if they refuse to be bound over, may commit them for contempt. 2. Hale. 52. 282.”
This authority supported by the more respectable name of Hale completely affirms the position I have laid down with respect to the compulsory process for procuring the attendance of a witness on a trial.
Mr. McNally, a late writer of considerable celebrity who has composed a work entitled “Rules of evidence on Pleas of the crown”, in chap. 31. of his first volume page 336. which is headed “In what manner witnesses are compellable to attend the Court, in order to give evidence” declares “The compulsory process to bring in witnesses in criminal causes (which in Ireland is generally called a crown summons) is either by subpoena, issued in the king’s name, by the justices of oyer & terminer, gaol delivery, or the king’s bench, where the plea of not guilty is to be tried, or the justices or coroner who take the examination of the persons accused, & the information of the witnesses, may at that time (and this is the usual way) or at any time after, & before the trial, bind over the witnesses to appear at the sessions;”
The eight article of amendment to the constitution of the United States declares that “In all criminal prosecutions, the accused shall enjoy the right to a speedy & public trial, by an impartial jury of the State & district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature & cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, & to have the assistance of counsel for his defence.”
If this text were to be construed by a reference exclusively to British practice & precedents, it would be satisfied by awarding the compulsory process defined & described by the authorities that have been cited.
I would not be understood as denying the authority of the Circuit Courts to issue an attachment within the limits of their respective jurisdictions against a witness who has disobeyed a subpoena duly served. This has been done in many instances. Some of the judges considering the court from its very nature & constitution as inherently vested with such an authority, whilst others have drawn the power from the general provisions of the act of Congress of Sep. 24. 1789. This act in Sec. 17. Vol. 1. p. 60. declares “That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury; for reasons for which new trials have usually been granted in the courts of law; and shall have power to impose & administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting of business in the said courts, provided such rules are not repugnant to the laws of the United States.”
In England according to modern practice, when a witness has neglected to attend a trial in obedience to a subpoena, the party injured may proceed either civilly or criminally against him. He may bring—1. A Special action on the case at common law—2. A suit on the Statute, or 3. He may apply to the Court for an attachment.
In the case now under consideration, I presume it will not be said, for I beleive it has never been contended in any case, that the action at common law or under the Statute can be supported against a witness who disobeys a subpoena issuing from a court of the U. States. This may perhaps some day be attempted & possibly sanctioned, upon the principle that giving the Court power to issue the writ of subpoena, every remedy known in England from whence it was drawn is naturally en vi termini attached.
The question then occurs whether a court of one District can issue an attachment into another.
This power is not expressly given by the act which provides that subpoenas may run into different districts. This provision, according to its plain language, is complied with, when subpoenas are issued & served in the different Districts. This process may be served by the party himself or any person whom he may choose to employ. I know the legal maxim that, when a statute gives a power it tacitly gives every incidental authority necessary to execute the principal power. What is the principal authority given in this instance. That, the Subpoenas may run into different districts. This is the whole extent of it. The law goes no farther. Any process therefore essential for this purpose which the Court should think proper to adopt would fall within this principle. But can it be necessary for the purpose of issuing subpoenas that may run into different districts, to execute an attachment in the case. If it were, the attachment should precede the subpoena. All the power expressly & positively delegated is executed by the issuing of the subpoena & it’s running into another district. Surely an attachment against a witness cannot, from the nature of the process, be necessary to accomplish this specific object. It cannot form a substratum for the subpoena. this is contrary to all legal ideas on the Subject. the Subpoena may of course issue, as it uniformly does, without it. Nor can it be essential to the service of a subpoena, that a person should go with a warrant in one hand to take the body of a witness, & the subpoena in the other to summon him. This power therefore cannot be fairly implied. Indeed it would be giving a new & more extensive authority & would make the less include the greater power, a solecism in law & in logic. It would reverse the maxim of omni magis includet in se minus. The attachments issued within the irrespective districts by the Courts of the U. States do not stand on the insulated ground of a power in those courts to issue subpoenas. They have, in addition to the reasons before suggested, adopted in pursuance of the act of Congress vesting them with that authority the rules of practice in the Court of K.B. & Chancery. Dallas’ Rep. 413. 1. Branch XVI. But the Court of K. Bench never attempted, I will venture to say, to have an attachment executed beyond the limits of their jurisdiction.
It will not be disputed as a general principle, that the Courts of the United States, for the respective districts, have not the jurisdiction to try or punish any act, committed out of their own Districts, except they are committed out of the U.S. It is true when an offence has been committed in a different District, the Judge of that district, where the offender is found, is specially given recognizance of the case, so far as to recognize him to appear or to issue a warrant to remove him in custody to the proper district for trial. This warrant the Marshal of the same District is bound to execute, the law having constituted him the officer for that particular Service. Any judge or justice is also expressly authorised to commit an offender or recognise him to appear.
If however a refusal to attend a subpoena issued in one District, by a person on whom it has been served in another, subjects him to punishment, he should, agreeably to the constitution, be punished in that District where the offence was committed. “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crime shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Cons. U.S. Art. 3. Sec. 2.
Again how can the court from which the Subpoena issued, punish an offence committed out of their District by a man who was never within it, untill brought there by an attachment, a criminal warrant which of itself must be predicated on the principle of his having previously committed an offence.
All cases of summary proceedings, where the party is deprived of the benefits of both Grand & Petit Jury, his shield & his buckler, are exceptions to the general course of practice. But I presume a party cannot be punished in this summary way in any case out of the jurisdictional limits of the Court, which would be a flat bar to the more usual & safe the more dilatory mode of proceeding.
The Grand Inquest of the District could not present an indictment for any acts committed beyond its limits.
These reflections impress my mind with the belief that the act of Congress on this subject was not intended to give the court of one District a criminal jurisdiction over the whole U. States. This could not have been in the contemplation of the legislature. Language for this extensive purpose should have been positive & express. Power of this important nature would have been clearly delegated, & would not have been left to the uncertainty of inference. The consequence would be, that the Court of the U.S. in any District, might issue their warrant of attachment, to the most distant District, & arrest on a criminal charge, from its nature not bailable, any individual they choose. They might bring persons in custody from Maine to Georgia, from Nachitoches to Philadelphia, & from the shores of St. Croix to the banks of the Arkansas—
I am fortified in my opinion by this additional consideration, that the Court which issues the attachment has no officer provided to execute it, out of their district.
In 2. Dallas’ Rep. p. 335. U.S. vs. Montgomery, on an application by the Marshall to the Court, to know whether in a distant county in the same District, he was bound to serve an attachment “By the Court. An attachment is the process of the court, regularly issuing for the administration of justice; and, therefore, must be served by the Marshall.”
From this it would appear that the attachment must be served by the Marshall of that district from which it issues. Indeed the warrant must be directed to him. But by the 27. Sec. of the act of Congress of the 24. Sep. 89. Vol. 1. p. 65. the Marshall is only authorized to serve the process of the Court within his own district. It is thus provided in the section just referred to, “That a Marshall shall be appointed in & for each District for the term of four years, but shall be removable from office at pleasure, whose duty it shall be to attend the district & circuit courts when sitting therein, & also the Supreme Court in the district in which that court shall sit. And to execute throughout the district, all lawfull precepts directed to him.”
What authority can the court of one District have over the Marshall of another District, unless specially given by positive law: He is not an officer of that court which issues the process nor is he amenable to them for any mission. It cannot be regularly issued to him. He is not therefore bound to execute it in his own District, nor could he take the prisoner beyond it, supposing there was an intervening district.
In the State of Pennsylvania there is an act of assembly, authorizing the Courts to issue their warrants against persons indicted, into the different counties directed to the Sheriff, or other officers of the respective counties, & to issue subpoenas into the different counties, to bring in any person to give evidence under such pains & penalties as are usually awarded. It will be evident upon a perusal of this provision that when a warrant is authorised an officer is provided to whom it is to issue & whose duty it is to execute it. The language too in reference to the subpoena is much stronger than the act of Congress. The following is the Sec. of the Pennsylvania law to which I have alluded. Vol. 1. p. 178. “And to the end that persons indicted or outlawed for felonies, or other offences, in one county or town corporate, who dwell, remove, or be received into another county or town corporate, may be brought to justice, Be it further enacted, That the said Justices or any of them, shall & may direct their writs or precepts to all or any the Sheriffs or other officers of the said counties or towns corporate, within this province, where need shall be, to take such persons indicted or outlawed. And that it shall & may be lawfull to & for the said Justices, & every of them, to issue forth subpoenas, & other warrants, under their respective hands & seal of the county, into any country or place of this province, for summoning or bringing any person or persons to give evidence in & upon any matter or cause whatsoever, now or hereafter examinable, or in any ways triable, by or before them, or any of them, under such pains & penalties as subpoenas, or warrants of that kind, usually are or ought by law to be granted or awarded.”
Under this act it is admitted in the following case that the Sheriff of one county is not obliged to serve even a Subpoena in another.
“Respublica vs. St. Clair”. 2. Dal. Rep. p. 101. “The defendant had been outlawed, for robbery; and being afterwards apprehended, the present issue was joined upon the identity of the person. Bradford, Attorney General, prayed the assistance of the court in sending a subpoena for witnesses into Bucks County, as he could not employ the Sheriff on a service out of his jurisdiction. The application was for a special messenger; the Attorney General observing, that if, as in England, the Judges were attended by Tipsters, those would be the proper officers to employ on the occasion.
But the Courts recommended, that he should consult with the Sheriff, on a proper person to be hired for the special service.
And In another case, Bowen vs. Douglass, Vol. 2. Dall. Rep. p. 45. where an attachment had been issued into another county which had not been executed—“By the Court: It is questionable whether the act of Assembly empowers us to issue writs of attachment into another County. And there are other modes of proceeding, equally efficient and clear of any doubt.”
It is very obvious the Court did not consider themselves warranted in issuing the attachment. So far then as analogous cases go they corroborate my opinion, for it must be observed that the act of Assembly of Pennsa. is more general & comprehensive than the act of Congress & gives in broad terms the authority exerted in England subsequent to disobedience to a Subpoena. For in addition to the power of issuing subpoenas into the different counties, it authorises them under such pains & penalties as are usually awarded.”
In the State of Delaware we have an act of assembly containing a similar provision Vol. 1. p. 129. “And be it further enacted by the authority aforesaid, That every of the said justices shall, & are hereby impowered, to issue forth subpoenas under their respective hands & seals into any county or place of this government, for summoning & bringing any person or persons, to give evidence in & upon the trial of any matter or cause whatsoever, depending before them or any of them, under such pains & penalties as by the rules of the common law & course & practice of the king’s courts at Westminster are usually appointed.”
I believe no attachment ever was issued under this act into a different county from that in which the court sat, against a witness for disobedience to a subpoena.
A subpoena is a summons directed to the witness himself & may, & very frequently is, served by the party or his agent. The intervention of no officer is absolutely necessary to give it effect. None of course is provided, if you wish this process served out of the district from which it issues. A bench warrant, which an attachment really is, must be executed by an officer of the Court, who has authority to compel at all hazards every person to submit who resists its execution.
I am perfectly aware of what passed in the cases of the U. States vs. Smith & Ogden. But there the court were equally divided in opinion & no precedent was thereby established.
II. I am friendly to the attendance of witnesses in all & more especially in criminal cases, but I consider there are obligations & duties imposed by the Constitution & laws of a free country for the benefit of the community at large, superior to those of a witness, & to these superior obligations the duties of a witness must yield whenever they interfere.
The Deity alone possesses the province of ubiquity. It is impossible for the same individual to be present at different places performing different duties at one & the same time. When cases of conflicting duties arise, the question occurs, to which ought an individual to attend. It would be reasonable to conclude that he is bound to perform the highest obligation first, where he cannot perform both. Where the duty is equal, he is bound to perform that which first attached. In a free country particularly the maxim that a private inconvenience is to be suffered before a public evil applies with superior force. Suppose the interest of the Commonwealth requires the presence of an officer to discharge those duties which he is bound by the obligation of a law & the solemnity of an oath to execute, at a particular place, & an individual should come with a subpoena to take him as a witness to a distant part, to the entire neglect of his duties as an officer. I presume the interest of the individual must yield to that of the community. In this country offices are not held for personal profit & aggrandizement, but for the welfare & safety of the people & the preservation of their rights & liberties. The faithful performance of the public duties enjoined on him by law is the first obligation which an officer owes to his country & to the law itself. What court of justice would undertake to punish a man for neglecting to attend as a witness at the instance of a private individual in a particular cause, where he could not have obeyed the Subpoena without neglecting more important public duties? The general rule undoubtedly is that all persons are legally bound to pay obedience to the compulsory process of a subpoena issued by a competent authority. But this rule like all others admits of exceptions. Exceptio probat regulam. In this free & extensive country the consequences would be ruinous were it otherwise. A dissolution of the Government might be effected by the instrumentality of subpoenas. How easy is the task of procuring them from every quarter in the greatest abundance. The number is only limited by the length of a party’s purse, for the sources from whence they flow are inexhaustible. How readily also are suits created to produce the most luxuriant crops of subpoenas. Any foreign minister may have them instituted ad libitum. If the attendance of all the officers of the Government can be compelled by dragging them prisoners to the spot, which perhaps the emissary of a foreign State has marked out; there to disclose according to late doctrines every thing in possession of the Executive or Legislature of the country, the result is easily foreseen. Or if every violater of the U. States when brought to the bar of justice to answer for his crimes, is vested with this extraordinary power—will it not be used for the worst purposes? Past occurences justify this opinion. Cases have actually happened in which we have beheld attempts made, that I will not qualify by their proper epithets. Let it not be said that the court themselves may prevent an improper use of their process. Is every co-ordinate branch of the Government to be at the discretion of the judiciary? Are they to judge whether it is essential to the public welfare that the highest officer in the U.S. should be permitted to remain at his post discharging his constitutional duties in the responsible capacity of Chief Magistrate of the United States, or whether they will compel him to attend them in the character of a witness. Are they to be presumed to possess all that knowledge of the State of the country which is necessary to enable them correctly to exercise their judicial discretion on the subject. Will it be said because they are judges they possess this requisite knowledge intuitively. But I am arguing to expose the fallacy of a principle actually assumed, for it seems as if the Court considered themselves bound to bring any officer before them provided the materiality of his testimony be shewn. No matter what may be the situation of the country, they have no discretion as to time or circumstances in this respect. The materiality of a witness is made [to] appear—according to the usual course by affidavits, which are taken to be prima facie correct. The affidavits of a party, suppose an offender of the first grade, are produced for this purpose. It is not difficult to draw them secundum forman, sufficiently strong to have the desired effect. It depends then solely on what any party will say or swear whether an attachment will be awarded. This is the measure & guide of the Court’s discretion. All the officers necessary for the administration of the government may be dragged from their posts at the most critical & perilous time at the discretion of courts, whose discretion must from the nature of the case be the pleasure of any litigious party.
The establishment of such doctrines must prostrate the Executive power at the feet of the judiciary who like Aaron’s serpent will swallow up every other authority. The principles I contend for will be found on examination just & rational &, I trust, constitutional & legal. No injury can be sustained by any accused individual, because a Court would postpone the trial of a criminal prosecution, until it was consented that the depositions might be taken of those whose official duties prevented their attendance. No officer whose duties would excuse his non-attendance would hesitate to give his testimony in this shape. A subpoena is a process of right to which every party is entitled & I subscribe to the doctrine that it may be served on any person whom the party pleases, as maintained by Judge Chase in 4. Dall. Rep. p. 341. (U.S. vs. Cowper). Notwithstanding in England this would be considered as a contempt of Parliament. 1. Katzell 112. Upon this principle “that no summons to any other court ought to be admitted to interfere with the member’s attendance on his most essential duty in the high court of Parliament.” 1. Katzell. 118. And perhaps by many of the State legislatures of this country. But even admitting for the sake of argument that an attachment could legally issue & could be legally executed in another district, that is a very different question. I cannot express the opinions I entertain on this subject, better than by quoting the language of Judge Chase in the above case. “The constitution gives to every man, charged with an offence, the benefit of compulsory process, to secure the attendance of his witnesses. I do not know of any privilege to exempt members of congress from the service, or the obligations, of a subpoena in such cases. I will not sign any letter of the kind proposed. If, upon service of a subpoena, the members of congress do not attend, a different question may arise, and it will then be time enough to decide, whether an attachment ought, or ought not to issue. It is not a necessary consequence of non attendance, after the service of a subpoena, that an attachment shall issue. A satisfactory reason may appear to the court, to justify, or excuse, it.”
The judge takes a just distinction between a subpoena & an attachment. An attachment he says is not a necessary consequence of non-attendance upon the service of a subpoena, for reasons may appear satisfactory to the court to justify or excuse it. Such too is the English law & practice. 2 Tidd. p. 738. “If the witness, not having a sufficient excuse, neglect to attend upon the Subpoena, he is liable to be proceeded against three ways;” This manifestly presents in my humble opinion the correct idea. It is true there is a constitutional provision that exempts members of Congress from arrest except for treason, felony or breach of the peace. But I beleive independent of this the court could not have forced a member of congress to abandon his seat, perhaps at a moment when a question of the first consequence to the particular State he represented, or of the greatest national importance, was about to be taken. Here would arise conflicting duties & the less must Yield to the greater. A member may & ought to attend if not incompatible with the duties of his office, but of this he must judge or the house of which he is a member. From them either tacitly or expressly leave is obtained for the necessary absence. In the case above cited, members of congress did attend, because the Court sat at the same place with themselves & because a momentary absence from their seats could be dispensed with by the house & could be reconciled with their duty as members. But this excludes the idea of their leaving the place of session for a distant part. This would be a clear dereliction of their duty. I do not ground my opinions on the arbitrary doctrine of assumed privilege, but on a more solid base. A man has duties which he is sworn to perform faithfully as a public officer, as an agent for the people, & he is called on to discharge a duty as an individual member of society. Time & place do not enable him to perform both. Shall he be seized as a criminal for executing the trust reposed in him as a public officer. The plain question is does the duty of a witness supercede every other obligation in a free country. Let the appeal be fairly made & the answer must be in the negative.
If a man were summoned as a witness to attend two Courts sitting at different & distant places on the same day, I presume as the obligation is equal, he ought to obey the subpoena first served on him & this would be a sufficient excuse for non-attendance on the latter.
Suppose a juryman empannelled & sworn on a trial were served with a subpoena, must he be immediately withdrawn, to arrange his affairs, in order to obey the summons, & must the trial commence de novo. If it were perhaps by the time a new jury were selected, one of them might be subpoenaed.
Should the District Judge of Virginia, bound by law to hold a term at a particular time, be served with a subpoena to attend as a witness the District Judge of Delaware, must he abandon his duty as a judge, leave all the important business of the Court & hasten to Delaware to give his testimony.
The Judges of the Supreme Court of the U.S. are by law obliged to hold a term annually at the seat of government.
But if the obligations of a witness are paramount to their high duties, they may be dragged into different districts from Natchez to New Hampshire & the whole business of the Supreme Court of the U.S. remain undecided. A District Judge: has the same authority as a Circuit Court. And he might with equal propriety say, it is true those Supreme Judges are bound by law to be at Washington at this time, but there is no law which privileges them from being witnesses & I will therefore compel them in person to attend my court when they ought to attend on their own.
There are some principles so plain that no language can elucidate them. It is in vain to attempt to illuminate a sunbeam. I maintain as the first obligation of judges the faithful discharge of their judicial duties & their exemption from the performance of any other incompatible with them. The performance of the first is I presume a sufficient excuse for not attending to the latter. I maintain this principle, not for the advantage of the judges, but the benefit of the people. For it will be perceived that a judge who had to travel a great distance to hold his court, might readily excuse himself by being summoned as a witness to a court much nearer home
For the same reason I claim for the Chief Magistrate & those officers with the fullfillment of whose duties it would be absolutely incompatible that they should leave their posts, the same exemption from attendance on a subpoena. What shall the C. Magistrate be withdrawn from the seat of Government at the commencement of a session of Congress to whom he is constitutionally bound to make the necessary communications on national affairs. Shall he be compelled at the moment when rebellion is raging in the country, or an invading foe desolating the land, to travel together with all the heads of departments, first to Nachitoches, thence to St. Louis, & from thence to the District of Michillimackinack. Shall the Secretaries of War & of the Navy at such a season be thus driven from their posts. Is the great business of the nation to be delayed, in order that a single cause may be tried.
If it be said that these high & responsible officers may provide some method of having the duties of their respective offices performed in their absence, my answer is, they are bound by the law & their oaths to perform their duties themselves, & not by deputy. To enable them to perform their duties well, they must remain at the seat of government where the earliest intelligence & information is regularly recieved by the mail & where all the papers & documents of their respective offices are deposited. These they could not legally remove, & if they could, they would be found a convenient appendage to a witness, travelling through a wilderness. The different courts might keep the President riding the circuit of the U. States like a post-boy the whole year round & the Marshalls of the different districts would contend for priority of rights over the person of their prisoner.
In this country where the distinctions of rank & degree are unknown, except in the honorable pre-eminence which the voice of the people periodically bestowes upon the most worthy, our excellent constitution has vested the Executive power of the country in a President of the U. States. This sacred charter has preserved, as far as possible, the three great departments of Government, Legislative, Judicial & Executive, separate, distinct & independent; & has assigned to them their respective duties. These must be faithfully performed. Open then the volume of the Constitution & behold the numerous high & important duties enjoined on the C. Magistrate. Look at our code of laws & you will find them increased to a vast extent. When Congress is in Session, he forms a component part of the legislature. Every Act must be presented to him to approve or disapprove as he thinks proper before it can become a law. His presence at the place of their session is essential to the progress of legislation. To send the acts of Congress to New Orleans, to be presented to the President would require a great deal of time & not a little expence. The President, if he disapproved of a bill presented to him at that distance from the seat of Government could not return it within the period limited by the constitution, which contains the following provision. Art. 1. Sec. 7. “If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law.”
He would be deprived of the exercise of that discretion with which the constitution has invested him for the welfare of the nation. Would the House of Representatives consider it a sufficient excuse for the neglect of his constitutional duties, in relation to themselves, if the President should say he was attending as a witness the District Court of New Orleans in obedience to a subpoena. I am convinced they would not. I beleive they would be apt to impeach him & that the Senate would be disposed to convict him. And a judge who would take the President by attachment would meet the same fate. I merely put this case for an example, & could add a great variety equally strong to support the principle I have laid down that there are constitutional & legal duties far superior to those of a witness. This doctrine is not that of the privilege of Peers or the prerogative of kings, but emanates from our free constitution & laws, which impose duties for the public good to which private convenience must yield.
The general law of the land is, that every citizen may be called on to perform the duty of a witness. But there are special provisions in the constitution, the supreme law of the U.S. & in the acts of Congress requiring & commanding the discharge of official duties. This must be construed a repeal of the general law, whenever the duties conflict. In the same manner as if it had been declared in so many words, that when the discharge of official duties interfered with those of a witness an officer should be exempted from the discharge of the latter. Such is beleived to be the most correct mode of construing statutes.
III. The 30. Sec. of the act of 24. Sep. 1789. Vol. 1. page 68. prescribes the mode of taking depositions. It provides—“When the testimony of any person shall be necessary in any civil cause, depending in any district in any court of the U.States, who shall live at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the U. States, or out of such District, & to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene esse before any justice or judge of any of the courts of the U. States, or before any chancellor, justice or judge of a Supreme or superior court, mayor or chief magistrate of a City, or judge of a county court or court of common pleas of any of the U. States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the magistrate before whom the deposition is to be taken to the adverse party, to be present at the taking of the same, & to put interrogatories, if he think fit, be first made out & served on the adverse party or his attorney as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes of admiralty & maritime jurisdiction, or other cases of seizure when a libel shall be filed, in which an adverse party is not named, & depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid shall be carefully examined & cautioned, & sworn or affirmed to testify the whole truth, & shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponents in his presence. And the depositions so taken shall be retained by such magistrate, until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reason, as aforesaid of their being taken, & of the notice if any given to the adverse party, be by him the said magistrate sealed up & directed to such courts & remain under his seal until opened in court. And any person may be compelled to appear & depose as aforesaid in the same manner as to appear & testify in court. And in the trial of any cause of admiralty or maritime jurisdiction in a District court, the decree in which may be appealed from, if either party shall suggest to & satisfy the court that probably it will not be in his power to produce the witnesses there testifying before the circuit court should an appeal be had, & shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, that the witnesses are then dead or gone out of the U.States, or to a greater distance than as aforesaid from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they are unable to travel & appear at court, but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. Provided, that nothing herein shall be construed to prevent any court of the U. States from granting a dedimus potestatem to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice; which power they shall severally possess, nor to extend to depositions taken in perpetuam sei memoriam, which if they relate to matters that may be cognizable in any court of the U. States, a circuit court on application thereto made, as a court of equity may, according to the usages in chancery direct to be taken.”
From this it appears that a particular method is directed by the act for taking the testimony of persons in certain situations with a saving of the usual modes of proceeding on the subject.
You may therefore take the statutable remedy or adopt the other. Under the Statute you may compel within the jurisdictional limits of the court the attendance of witnesses to give their depositions. So you may agreeably to the chancery practice in England. But beyond those fixed bounds, you cannot exert the criminal process of attachment. In the courts of common law in England, to this day depositions can only be taken by mutual consent except where the cause of action hath arisen in India, under the Stat. 13. Geo. 3rd. chap. 63. Sec. 44.—
The construction which I have heard generally put upon this Sec. is that subpoenas could only be served 100. Miles from the place where the court sat, provided the witness was in the district. This idea is supported by a section in a subsequent law expressly providing that subpoenas may run into other districts. Act of 2. May 1793. Sec. 6. Vol. 2. page 228. “That subpoenas for witnesses who may be required to attend a court of the U. States in any district thereof, may run into any other district: Provided, That in civil causes, the witnesses living out of the district in which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the same.”
But it is extremely clear upon a perusal of that Section of the former act already quoted, that it is only when the witness is within the district that he may be compelled to appear before the persons appointed to take his deposition in the same manner as he could before the court. It declares if the witness “is about to go out of the U. States, or out of such district, & to a greater distance from the place of trial than as aforesaid, before the time of trial, or is ancient or very infirm, the deposition of such person may be taken de bene esse before any justice or judge of any of the courts of the U. States, or before any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the U. States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the magistrate before whom the depositor is to be taken to the adverse party, to be present at the taking of the same, & to put interrogatories, if he think fit, be first made out & served on the adverse party or his attorney as either may be nearer, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every 20 miles travel.”
After what I have said on the preceding points, it is not necessary to enlarge further on this. As in addition to the reasons already assigned the same arguments would apply against extending the process of attachment beyond the jurisdictional limits of the court to compel an appearance before a judge or justice as to compel an appearance before the court itself.
Your very hum S
C. A. Rodney
DLC: Papers of Thomas Jefferson.