notion of a freedom or right.20 In the next century, and hardly before then, do we find a plain recognition of the duty; and it is noticeable that there are two stages of development, for the duty of attendance to be sworn comes earlier than the duty of disclosure of knowledge. The obligation to attend and bear testimony generally had been settled; but for some time afterwards there appears still to be lacking the full conception that the answer to a specific question on the stand can be compelled; and that all desired facts are bound to be disclosed.21 The history of the various claims of exemption, from that time onward,22 shows that the final achievement was in the early 1600s distinctly a new one: 1612, Sir Francis Bacon, in the Countess of Shrewsbury's Trial, 2 How. St. Tr. 769, 778: "You must know that all subjects, without distinction of degrees, owe to the king tribute and service, not only of their deed and hand, but of their knowledge and discovery. If there be anything that imports the king's service, they ought themselves undemanded to impart it; much more, if they be called and examined, whether it be of their own fact or of another's, they ought to make direct answer." But as yet there was one important step to be taken. The statute of Elizabeth had apparently intended to provide only for civil causes. In criminal causes, the date when process began to be issued for the Crown's witnesses does not appear; though presumably it preceded the time of Elizabeth's statute. But the accused in a criminal cause was not allowed to have witnesses at all,23 much less to have compulsory process for them. By the early 1600s this disqualification began to disappear, and the accused was occasionally allowed to put on witnesses, who spoke without oath. After two generations, and by 1679, under the Restoration, the judges began to grant him, by special order, compulsory process to bring them ; 24 and finally, at slow intervals, in 1695 and in 1701, he was guaranteed this right by general statutes.25 This guarantee was afterwards embodied in most of the constitutions of the United States. In the remaining important field of jurisdiction, the Court of Chancery, the general doctrine becomes a part of English history at a time when it was already in part achieved in another system of law. When the Chan 20 1599, Dobson v. Crew, Cro. Eliz. 705 (bond to give testimony; the Court said that, even apart from the bond, "he is compellable by the law"). 21 As late as about 1630, a clerk of the Star Chamber, Hudson, is found writing (Treatise on the Star Chamber, part III, § 21, Hargraves' Collectanea Juridica, II, 209) that "the great question hath been, whether a witness which in examination will not give any answer shall be compelled to make answer to the interrogatories; . . . [and Lord Chancellor Egerton] gave me answer, that he knew no law to compel a witness to speak more than he would of his own accord." This was certainly not the then practice of the Star Chamber (post, § 2250), but the statement looks like a reminiscence of the ecclesiastical law, as noticed infra, note 27. 22 Post, § 2212 (trade secrets), § 2286 (confidences), § 2290 (attorney and client). 23 The history of this disqualification has already been examined (ante, § 575). 24 Ante, § 575. 25 1695-6, St. 7 & 8 W. III, c. 3, § 7 (persons indicted for treason and misprision "shall have the like processe of the court where they shall bee tryed, to compell their witnesses to appeare for them att any such tryal or tryals as is usually granted to compell witnesses to appear against them"); 1702, St. 1 Anne, c. 9, § 3 (requires that witnesses produced for the accused in felony shall be sworn); the latter statute was treated by implication as authoriz ing compulsory process: 1824, Starkie, Evidence, I, 86. cellors in the 1400s were forming the procedure of their court after the model of the ecclesiastical law, they found a doctrine de testibus cogendis long canvassed as a theoretic principle in the system from which they borrowed. There had indeed been a time when that system was passing through a development something like our own, at least, when the compellability of witnesses was a new thing; the decretals of the 1200s indicate this; 26 and a final settlement had not been reached when the English Court of Chancery began to flourish, and to borrow the Continental rules.27 But the Chancellors, without waiting, pushed the principle to the extreme test of practicality, and invented the keen compulsory weapon of the subpœna writ.28 This gave them more than a century's start of the common-law Courts in the recognition of a definite testimonial compulsion and duty. It may be supposed, moreover, that the rapid increase in the activity of the Chancery during the 1500s was one of the causes which contributed to the introduction at that time of compulsory process for witnesses in the commonlaw courts, and was the chief influence in prescribing for that process the specific form of the subpoena writ. It may even be that the Chancery's priority in the use of compulsory process was itself one of the causes that had made it more efficient and more popular. § 2191. Constitutional Guaranty of Compulsory Process. This history of the law securing for accused persons the right to compulsory process for their witnesses shows that the purpose of the statutes was merely to cure the defect of the common law by giving to parties defendant in criminal cases the common right which was already in custom possessed both by parties in civil cases and by the prosecution in criminal cases. The Bills of Rights in most of the Constitutions have incorporated this statutory right,1 26 Corpus Juris Canonici, Decretal. II, 20 (de testibus et attest.), 21 (de testibus cogendis); Glasson, cited supra, note 8. 27 That law seems to have suffered an arrest of development, and never to have reached explicitly the complete conception of a testimonial duty. "The canon law recognized a public duty and liability to bear witness, although to be sure the earlier doctrine had partially refused this recognition, for criminal cases in gen. eral, or at least for the accusatio-proceeding in particular" (Hinschius, Kirchenrecht, 1897, VI, pt. 1, § 364, p. 97, note 1). The modern Church jurists, in regard to the coercion of a witness, "incline to hold it allowable, at least when proof cannot be supplied in any other manner (Droste, Canonical Procedure, tr. Messmer, 1887, $66). Even in modern French criminal procedure (which is founded on canon-law methods), a witness who refuses on the stand to answer a specific question cannot be compelled (Bodington, French Law of Evidence, 1904, p. 116). 28 For the history of the subpoena writ, see the quotation from Lord Campbell, supra, note 19, and further, Hudson, Treatise of the Star Chamber, pt. III, § 21, in Hargr. Coll. Jurid. II, 207; Leadam, Select Cases in the Star Chamber, Seld. Soc. Pub. vol. XVI, p. xxii; Spence, Equitable Jurisdiction, I, 328, 345, 369; Choice 1 The usual provision is that in criminal cases the accused shall have the right to compulsory process for obtaining witnesses (or, process to compel the attendance of witnesses ") "in his favor" (or, "in his behalf "); special variations are noted below; the figures indicate the date, article, and section of the Constitutions: Ala. 1875, I, 7; Ark. 1874, I,8; Cal. 1879, I, 13; Colo. 1876, II, 16; Coun. 1818, I, 9; Del. 1831, I, 7; Fla. 1887, Decl. of R. 11; Ga. 1877, I, 5; Ida. 1889, I, 13; Ill. 1870, II, 9; Ind. 1851, I, 13; Ia. 1857, I, 10 (for criminal cases, the usual clause; "Any party to any judicial proceeding shall have the right to use as a witness, or take the testimony of, any other person, not disqualified on account of interest, who may be cognizant of any fact material to the cause "); Kan. 1859, Bill of R. 10; Ky. 1891, 11; La. 1898, 9; Me. 1819, I, 6; Md. 1867, Decl. of R. 21 ("to have process for his witnesses; to examine the witnesses for and against him on oath "); Mass 1780, Decl. of R. 12 ("a right to produce all proofs that may be favorable to him"); Mich 1850, VI, 28; Minn. 1857, I, 6; Miss. 1890, III, 26; Mo. 1875, III, 22; Mont. 1889, I, 16; Nebr. 1875, I, 11; N. H. because those clauses of the Constitutions were intended to sanction permanently the more fundamental features of just and liberal criminal procedure, particularly in the parts which had at various times in the past been found liable to abuse. The Constitutions, in this instance, provided nothing new or exceptional; but gave solid sanction, in the special case of accused persons, to the procedure ordinarily practised and recognized for witnesses in general. It follows that this right does not override and abolish such exemptions and privileges as may be otherwise recognized by common law or statute; the right guaranteed is merely the general right to the compulsory process which is required for making practical the testimonial duty, so far as that duty otherwise exists.2 So, also, this guarantee does not define the extent to which testimonial attendance is conditional on the party's tender of expenses; 3 whether an accused must make such a tender remains to be determined by the law as otherwise defined.4 § 2192. Duty to give Testimony; General Principle. For three hundred years it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man's evidence. We may start, in examining the various claims of exemption, with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional and are so many derogations from a positive general rule: 1742, Bill for Indemnifying Evidence, Cobbett's Parliamentary History, XII, 675, 693 (the debate being upon a bill to pardon in advance such witnesses as should criminate themselves in testifying to the frauds of Sir Robert Walpole, Earl of Orford, the debate 1793, Bill of R. 15 (like Mass.); N. J. 1844, I, 8; N. C. 1875, I, 11 ("to confront the accusers and witnesses with other testimony "); N. D. 1889, I, 13; Oh. 1851, I, 10; Or. 1859, I, 11; Pa. 1874, I, 9; R. I. 1843, I, 10; S. C. 1895, I. 18; S. D. 1889, VI, 7; Tenn. 1870, I, 9; Tex. 1876, Bill of R. 10; U. S. 1787, Am. 6; Utah 1895, I, 12; Va. 1902, I, 8 (like Vt.); Vt. 1793, I, 10 ("to call for witnesses in his favor "); Wash. 1889, I, 22; W. Va. 1872, III, 14; Wis. 1848, I, 7; Wyo. 1889, I, 10. The Federal clause first occurs in its present form in the resolution of amendment by Congress, March 4, 1789, but it was founded on the recommendations of the Constitutional Convention of New York and of North Carolina, July 26 and Aug. 1, 1788; their proposal declared the accuser's right "to have the means of producing his witnesses and 66 to call for evidence" (Elliot's Debates, I, 328, 334, 339, IV, 243). None of the other ratifying States (except Rhode Island, after the Congress above mentioned) seem to have called for this clause. 2 1897, State v. Wiltsey, 103 Ia. 54, 72 N. W. 415 (witness prevented by illness); 1854, Re Dillon, 7 Sawyer 561, 569 (Hoffman, J.: "The object and effect of the constitutional provision were merely to give to the accused the right to such process as is usually granted to compel witnesses to appear on the side of the prosecution against them"; here, a foreign consul's privilege). The contrary was maintained by the Executive, through Mr. Marcy, Secretary of State, in this same matter of Consul Dillon, so far as the consular exemption was based on a treaty made subsequent to the Federal Constitution; the authorities are cited post, § 2372. It would seem that, for procuring the attendance of a convict in prison, process (usually provided for by statute) would be obtainable even in civil cases; but this right has sometimes been placed upon the basis of the constitutional provision: 1196, Hancock v. Parker, 100 Ky. 143, 37 S. W. 594. 3 Contra: 1853, West v. State, 1 Wis. 209, 230 ("It would be in many cases but bitter mockery to grant the prisoner the right to have witnesses examined in his behalf, and then to deny him the necessary process of the law to procure their attendance ")." For these requirements as to tender of expenses, see post, § 2201. For other analogies, as to constitutional provisions merely sanctioning a general principle, and not affecting its exceptions, see ante, § 1397. For the question whether the statutory rule refusing a continuance, where the accused's witnesses' desired testimony is admitted to be as averred, is in violation of the constitutional provision guaranteeing compulsory process, see post, § 2595. took a general range): Duke of Argyle (for the bill): "On the present occasion, my lords, I pronounce with the utmost confidence, as a maxim of indubitable certainty, 'that the public has a claim to every man's evidence,' and that no man can plead exemption from this duty to his country." L. C. Hardwicke (against the bill): "It has, my lords, I own, been asserted by the noble duke, that the public has a right to every man's evidence, a maxim which in its proper sense cannot be denied. For it is undoubtedly true that the public has a right to all the assistance of every individual.” 1802, Smith, M. R., in Butler v. Moore, McNally, Evidence, 253: "It is the undoubted legal constitutional right of every subject of the realm, who has a cause depending, to call upon a fellow-subject to testify what he may know of the matters in issue; and every man is bound to make the discovery, unless specially exempted and protected by law." 1827, Mr. Jeremy Bentham, Draft for a Judicial Establishment (Works, Bowring's ed., IV, 320): "What then? Are men of the first rank and consideration, are men high in office, men whose time is not less valuable to the public than to themselves, are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody! What if, instead of parties, they were witnesses? Upon business of other people's, everybody is obliged to attend, and nobody complains of it. Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly." 1861, Willes, J., in Ex parte Fernandez, 10 C. B. N. s. 3, 39: "Every person in the kingdom, except the sovereign, may be called upon and is bound to give evidence, to the best of his knowledge, upon any question of fact material and relevant to an issue tried in any of the Queen's courts, unless he can show some exception in his favor." 1818, Tilghman, C. J., in Baird v. Cochran, 4 S. & R. 397, 400: “From the nature of society, it would seem that every man is bound to declare the truth when called upon in a court of justice. . . . The general welfare will be best promoted by considering the disclosure of truth as a debt which every man owes his neighbor, which he is bound to pay when called on, and which in his turn he is entitled to receive.” 1853, Smith, J., in West v. State, 1 Wis. 209, 233: "In no just sense can the requisition upon a citizen of his attendance upon court to testify as a witness be considered as the taking of private property for public use, within the meaning of the constitution. The object of that provision in the fundamental law was to protect the citizen from the grasping demands of government, not to absolve him from any of those various personal duties which every good citizen owes to his country, such as the performance of military duty, obedience to the call of the proper authority for his personal service in suppressing a riot, the apprehension of a felon, affording assistance to officers in making arrests when resisted, and the like. There are very many instances in which the citizen is required to perform personal service or render aid to his government, without other compensation than that of his participation in the general good and his enjoyment of the general security and advantage which result from common acquiescence in such obligations on the part of all the citizens alike and which is essential to the existence and safety of society." 1 1856, Perkins, J., in Israel v. State, 8 Ind. 467: "It is as much the duty and interest of every citizen to aid in prosecuting crime as it is to aid in subduing any domestic or foreign enemy; and it is equally the interest and duty of every citizen to aid in furnish 1 Mass. Const. 1780, Decl. of R. 10 ("Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of his protection; to give his personal service or an equivalent, when necessary"); so also N. H. Const. 1793, Bill of R. 12; Vt. Const. 1793, I, 9 ing to all, high and low, rich and poor, every facility for a fair and impartial trial when accused; for none is exempt from liability to accusation and trial." 1859, Caton, C. J., in Bennett v. Walker, 23 Ill. 97, 101 (compelling the heir of the grantor of a lost deed to execute another): "He says he owes the complainants no such duty. He forgets that society often imposes upon all its members the obligation to submit to inconveniences and trouble, and even expense, for the sole benefit of others. Where was the obligation resting upon R. S. to attend as a witness in this case? . . . What right have the Courts to compel any one to quit his own affairs, no matter how pressing they may be, and attend as a witness or juror in litigation between strangers? This duty to assist others who stand in need of our assistance for the maintenance of their rights necessarily flows from the relations we bear each other as members of the same community, we being mutually dependent upon each other for security and protection." From the point of view of the duty here predicated, it emphasizes the sacrifice which is due from every member of the community. That sacrifice may take two forms, either of them serious enough. In the first place, it may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-requited favor. It is a duty, not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit. He is not a desirable member of society. He who will live by society must let society live by him, when it requires to. Or the sacrifice may be of his privacy, of the knowledge which he would preferably keep to himself because of the disagreeable consequences of disclosure. This inconvenience which he may suffer, in consequence of his testimony, by way of enmity or disgrace or ridicule or other disfavoring action. of fellow-members of the community, is also a contribution which he makes in payment of his dues to society in its function of executing justice. If he cannot always obtain adequate solace from this reflection, he may at least recognize that it defines an unmistakable axiom. When the course of justice requires the investigation of the truth, no man has any knowledge that is rightly private. All that society can fairly be expected to concede is that it will not exact this knowledge when necessity does not demand it, or when the benefit gained by exacting it would in general be less valuable than the disadvantage caused; and the various privileges are merely attempts to define the situations in which, by experience, the exaction would be unnecessary or disadvantageous. The duty runs on throughout all, and does not abate; it is merely sometimes not insisted upon. From the point of view of society's right to our testimony, it is to be remembered that the demand comes, not from any one person or set of persons, but from the community as a whole, - from justice as an institution, and from law and order as indispensable elements of civilized life. The dramatic features of the daily court-room tend to obscure this; the matter seems to be between neighbor Doe and neighbor Roe; we are prone to shape our own course by the merits of the one or the other of their causes. But the |