TITLE II: RULES OF CONDITIONAL EXCLUSION (PRIVILEGE). SUB-TITLE I PRIVILEGE, IN GENERAL. CHAPTER LXXIV. § 2190. History of Testimonial Compulsion in general. $2191. Constitutional Guaranty of Compulsory Process; of Compensation for Services. $2192. Duty to Give Testimony; General Principle. § 2193. Same: Applied to Production of Documents. "2 § 2194. Same: Applied to Premises, Chattels, and Corporal Exhibition. § 2195. Officers possessing Power to Compel Testimony; Witness' Liability to Action, and Immunity from Arrest. § 2196. Privilege Personal to the Witness; Party's Objections. § 2197. Kinds of Privilege. § 2190. History of Testimonial Compulsion, in general. In looking back over the history of the recognition of the duty to testify, it must be kept in mind that, up to the 1400s, the modern witness is practically unknown in jury trials, and that not until the 1500s is he a common figure in the trial and an important source of information for the jury. Even in Coke's time, in the early 1600s, it is a comparatively recent feature that he is alluding to when he remarks "most commonly juries are led by the depositions of witnesses. Up to that period the jury had fulfilled the double capacity of triers and of witnesses; their own knowledge of the affair, acquired as neighbors of the parties or by searching about for evidence before the trial, had been a chief source of that information which is nowadays furnished to them by ordinary witnesses. There were, to be sure, in certain classes of cases, persons not technically jurors, who came as witnesses, - deed-witnesses and transaction-witnesses, i. e. persons who at the time of signing a deed or striking a bargain or celebrating a marriage had been called upon by the parties to bear witness in case of future need. These had originally served as the very triers themselves, in the days before jury-trial, and their oaths had formed a distinct mode of trial, which survived alongside of jury-trial.* As the latter progressed and expanded, these deed-witnesses and transactionwitnesses became gradually obsolete as a separate form of trial, and came to be employed in connection with jury-trial. They were summoned with the jurors, and they did not testify openly in court, but went out with the jurors to deliberate and give information to them; so that they bore the character, for a long period - say, down to the end of the 1400s of half jurors, half witnesses.5 Now these persons joined with and yet separate from the jurors proper, were fully recognized to be under the same liability and duty as the jurors them 1 Thayer, Preliminary Treatise on Evidence, 122-134. 2 Coke, 3 Inst. 26. 3 Thayer, ubi supra, 90–97. 4 Thaver, 17-24. Thayer, 97-104. selves; they were summoned with the jurors, and were equally subjected to compulsory process. Whether the recognition of this was felt to rest more upon the implied pledge given when the person had been formally called upon by the party to bear witness, or upon the assimilation in thought of the jurors and these persons, does not clearly appear; probably both considerations entered. Towards the end of the 1400s, it became uncommon on account of the inconvenience of numbers, to summon them with the jurors, and their function as joint juror-witnesses fell into disuse." - In the meantime the ordinary modern witnessi. e. the person who happens to know something on the matter in issue was gradually appearing. He was asked by the party to come and contribute his help, or he came of his own motion and interest in the cause. But he could not be compelled to come. A marked feature of the primitive Germanic law was the failure to recognize any general testimonial duty. There must be some specific pledge of faith beforehand (as in the case of the deed-witness or transaction-witness) to bear testimony for the party when called on. This tradition was inherited by our law, and was at the period in question (the end of the 1400s) still a living force. But more than this. The ordinary witness (such as we now know him) was not only not compelled; he was not welcomed. There was a radical and strict discouragement of maintenance; and the man who comes to labor privately with his neighbors on the jury by generally urging his influence in favor of one of the parties was not carefully distinguished from the man who comes merely to tell them what he knows of the facts. He is, in either case (they thought), trying to make them decide for one of the parties rather than the other; he is a meddler; that was the law's attitude towards him. This feature of the thought of the times is perhaps difficult nowadays to conceive. But it contains the whole explanation of the ordinary witness' position in the 1400s.9 The result of this rooted opposition to whatever bore the semblance of maintenance was that anybody who was not somehow concerned as a party or a counsel in the cause ran the risk, if he came forward to testify to the jury, of being afterwards sued for maintenance by the party against whom he had spoken.10 "If he had come to the bar out of his own head and spoken Thayer, 97-104. 7 Thayer, 101. 8 Schroeder, Lehrbuch der deutschen Rechtsgeschichte, 4th ed., 1902, pp. 86, 365 (“In order to bind document-witnesses once for all to a subsequent giving of testimony, the party had to pay document-money or give wine; for no public testimonial obligation existed [in the Frankish period], and a civil obligation could be created only by a contract entered into with a consideration"); Pollock and Maitland, 1895, Hist. Eng. Law, II, 599 (“It seems to have been a general rule that no one could be compelled, or even suffered, to testify to a fact, unless when that fact happened he was solemnly taken to wit ness'"). It has been pointed out by Professor Glasson (Histoire du droit et des institutions de la France, 1895, VI, 540) that the liability of the witness, if his oath were challenged as false by the opponent, to vindicate himself by judicial combat, was a serious one, and naturally prevented the recognition of any legal obligation to appear as a witness; and he notes the contrast in the ecclesiastical courts, where the testimonial obligation already existed. 9 It has already been further examined in dealing with the history of disqualification by interest (ante, § 575) and of the Hearsay rule (ante, § 1364). 10 The data are given in Thayer, 124-129. for one or the other," says a judge in 1450,11 "it is maintenance, and he will be punished for it. And if the jurors come to a man where he lives, in the country, to have knowledge of the truth of the matter, and he informs them, it is justifiable; but if he comes to the jurors or labors to inform them of the truth, it is maintenance, and he will be punished for it." Thus the state of things was that the person informing the jury must (if he would escape a charge of maintenance) either be an interested party, or his counsel or his servant or tenant or relative-in short, so situated that "the law presumes him bound to be with the party" -12 or he must have been officially called upon, either by summons as a juror or deed-witness, or by the express request of the jury or of the judge-in short, by "compulsion of law "; 13 since "what a man does by compulsion of law cannot be called maintenance." 14 This state of things lasted well on into the 1500s.15 But gradually it became intolerable, as may be imagined. By that time the jury was less and less able to do justice to the cause through the means of its own neighborhood-knowledge. The summoning of deed-witnesses and transaction-witnesses with the jury (a method in any event available in only certain classes of cases) had through its cumbrousness fallen into disuse. No other form of compulsory summons than that appropriate to jurors and these quasi-jurors was known in tradition. 16 The doctrine of maintenance was a harsh obstacle in the way of obtaining by persuasion the attendance of any other persons capable of giving material information. In these conditions, the trend of the law was naturally marked out by the circumstances. The lead was furnished by the existing qualification, already noted, that "what a man does by compulsion of law cannot be called maintenance." Create a general compulsion of law for all persons whose information may be needed or desired as useful by the parties, and the obstacle to getting witnesses would be removed. Let an order of the judge, commanding such a person's appearance, be obtainable, as of course, before the trial, and the risk of a charge of maintenance would be removed, and no man need fear to come forward as a witness. Such was the expedient which was plainly dictated by the exigency; and such, beyond a doubt, was the genesis-slow though the creative process was of the notable statute of Elizabeth, in 1562-3, by which a penalty was imposed and a civil action was granted against any person who refused to attend, after service of process and tender of expenses.17 11 Y. B. 28 H. VI, 6, 1; quoted in Thayer, 129. 12 Cheyne, C. J., in 1433, Y. B. 11 H. VI, 43, 36; quoted in Thayer, 126. 13 1406, Y. B. 9 H. IV, pl. 24; Y. B. 8 id. 6, 8; quoted in Thayer, 125. 14 Littleton, arguing, in 1450, Y. B. 28 H. VI, 6, 1; quoted in Thayer, 128. 15 1537, Y. B. 27 H. VIII, 2, 6; quoted ante, § 575. 16 As late as 1481 (Y. B. 28 Ed. IV, 28, 1; quoted in Thayer, 129, note) a judge even refuses to compel a man to testify who is already in the court. 17 St. 5 Eliz. c. 9, § 12 ("If any person or persons upon whom any process out of any of the courts of record within this realm or Wales shall be served to testify or depose concerning any cause or matter depending in any of the same courts, and having tendered unto him or them, according to his or their countenance or calling, such reasonable sums of money for his or their costs or charges as having regard to the distance of the places is necessary to be allowed in that behalf, do not appear according to the tenor of the said process, having not a lawful and reasonable let or impediment to the contrary, that then the party making default" shall forfeit £10 and No doubt a process had been issued on demand, increasingly often, in the preceding generation; but this appears as the first definite recognition of the general right to have that process and the general duty implied by it.18 This statute did for testimony at common law what John de Waltham's subpoena had done for testimony in chancery, more than a hundred years before, by an expedient almost precisely similar.19 This statute of Elizabeth, then, which in our day appears merely to supply a means of getting a hold upon persons who are not willing to testify, and typifies the duty of being a witness, appears in its inception as serving also a different and more restricted purpose. By giving a command to those who were willing enough, but were timorous, it represented their right to come and to testify, unmolested by the apprehension of maintenance-proceedings. Its provision for a civil action against persons refusing a provision which at first sight gives us of to-day an incorrect impression was intended still further to counteract their fears of maintenance-proceedings by the opponent if they did come, by subjecting them to an action by the summoning party if they did not come. In other words, the exigency which the statute meant to meet was not so much the witness' insensibility to his legal duty to the party desiring his attendance as his sensitiveness to the legal claims of the opposite party to his non-attendance. Of a legal duty to attend or to give testimony, it can hardly be said that there is at this stage any settled recognition. The effort is rather merely to create a freedom to attend. As this freedom came to be exercised more and more generally, and the ordinary witness became, by the 1600s, the chief source of the jury's information, the notion of a duty was naturally developed from and added to the give further recompense for the harm suffered by the party aggrieved). 18 That this step was taken in order to remove the obstacles which the law of maintenance otherwise presented may be easily inferred from the recorded persistence of that law down to within a few years of the statute (as shown in the case of 1537, cited supra). The office of the subpoena as a sort of indemnity against an action of maintenance plainly appears also in a petition in Chancery, of the prior century, where the petitioner asks for a subpoena to his witness, because "the same David will gladly knawelygge the treweth of the same matiers, bot he wald have a manndement fro yowe, for the cause that he shuld noght be haldyn parciall in the same matier" (Calendars of Proceedings in Chancery, 1450-60, 1, p. xix; quoted in Thayer, 129). Moreover, this notion that people who come forward, without compulsion, to talk to the jury are meddlers, and that a peremptory command of the Court can alone remove the stigma of impropriety, was so rooted in popular and professional feeling that it only disappeared slowly and gradually; and as late as the early 1600s a learned clerk of the Star Chamber (ante 1635, Hudson, Treatise of the Star Chamber, III, § 21, in Hargraves' Collectanea Juridica, II, 207) remarks that he who "comes to yield his testi mony without compulsion" is "esteemed a forward witness." 19" He first framed it in its present form, when a clerk in Chancery, in the latter end of the reign of Edward III [about 1375]; but the invention consisted in merely adding to the old clause quibusdam certis de causis,' the words 'et hoc sub pœna centum librorum nullatenus omittas;' and I am at a loss to conceive how such importance was attached to it, or how it was supposed to have brought about so complete a revolution in equitable proceedings; for the penalty was never enforced, and if the party failed to appear, his default was treated (according to the practice prevailing to our own time) as a contempt of court, and made the foundation of compulsory process" (Campbell, Lives of the Chancellors, 5th ed., I, 259). The learned writer would not have been at a loss to conceive" the importance of the expedient, if he could have been acquainted with the modern researches into the history of witnesses. There had been before that time no compulsion; and the pana of centum libri effectually supplied the compulsion. We may well understand that a "revolution in equitable proceedings" was by this sub pœna clause brought about. This and the statute of Elizabeth mark an epoch in the history of legal theory and practice. The history of the subpoena is further noticed infra, note 27. |