certain public officers are expressly exempted by statute from attendance; moreover, at common law it is a question whether the Crown or the Executive is bound to attend court, or at least is liable to compulsory process. (4) The irremovability of public records concerns several principles which need to be discriminated. The rule requiring the party to produce a documentary original is dispensed with for public records, and a copy may be used (ante, §§ 1215, 1218). As a general rule of convenience, intended to preserve them from harm and keep them available constantly for consultation, the originals are generally forbidden to be removed for evidence (ante, § 2182). If, however, they are unlawfully removed, the illegality does not of itself exclude them (ante, § 2183). Those principles involve no question of privilege. But a few statutes expressly provide that the custodian of public records is not compellable to remove and produce them; moreover, the testimonial privilege as to official secrets operates sometimes to prevent the disclosure of the contents of such documents.4

§2207. Same: (c) Distance from Place of Trial. The jurisdiction of a court may cover an extensive territory; but at common law no discrimination was made in regard to the distance of the witness' residence from the place. of trial where his testimony was needed. He was not exempted by distance, if he was within reach of the court's process. Inordinate hardship was thus constantly caused to witnesses by the necessity of travelling a long distance and absenting themselves for a tedious period from their occupations, perhaps after all for no important benefit to justice. Modern statutes have usually remedied this hardship by limiting the distance from which a witness is compellable to come to the place of trial. Any such fixed rules must of course operate somewhat arbitrarily and therefore unjustly. They have no reference to the importance of the cause or of the individual witness' testimony, nor to his ability to absent himself without serious hardship, nor to the facilities available for travel. Moreover, when they regulate the exemption merely by political subdivisions as by counties - they even fail to take account of the very reason for their enactment, since the county line may be but a few miles from the place of trial. Such statutes are therefore ill-advised and defective, whenever they do not leave it always to judicial discretion to obviate their arbitrariness by compelling attendance beyond the usual distances when this measure seems necessary. Nevertheless, these statutes represent a just need in legislation and rest on a sound general policy, as set forth in the following passage:

1848, New York Commissioners (David D. Field and others) of Practice and Pleading, First Report, 250: "Can there be a doubt that, under our present system, the rights

and hazardous to the welfare of the inmates or some of the inmates "); Ida. St. 1899, Feb. 10, $6 (practising physician or attorney-at-law, out of the county of residence); Ind. Rev. St. 1897, § 432 (practising physician or attorney-at-law); La. St. 1877, No. 103 (cited post, § 2207, note); Tenn. Code 1896, §§ 5624-5628 (same).

criminated from that of the testimonial protection given to official secrets; and hence the precedents and statutes are better dealt with in one place (post, § 2371).

4 The last two principles are sometimes confused in the precedents, and accordingly the authorities are better examined in one place, post, § 2373.

These questions, however, have to be dis

of witnesses are grossly disregarded? Why should the law permit a person to be taken from Suffolk to Niagara against his will, and at great sacrifice, because two persons in Niagara have a legal dispute? The loss to the witness may be more than the whole subject of litigation. Does not the law in this case inflict a greater wrong that it may redress a less? We think it does; and we propose to prevent it hereafter, by declaring that no person shall be taken hereafter out of his own county for another person's civil action. . . . There should seem, moreover, to be no good reason to require the personal attendance of a witness at so great a sacrifice. No doubt, his appearance upon the stand, where the testimony may be taken from his lips, is preferable to a written deposition, taken at a distance. But that is not the only question. The point is this, whether the increased advantage to the parties of having the judge and jury see the witness, is more than a counterpoise to the increased injury to the witness from being brought so far, and at so great a loss. We think the question can be answered in only one way. In his own county let him be called to the stand. If it be wanted in another, let it be taken in his own, and transmitted thither. Should there be a really urgent occasion for the personal attendance of the witness, there can be little doubt that the party may be able to induce him to attend, by compensating him for his expenses and time. So it is now, where a witness is wanted from another State; the party makes an arrangement with him to come, in many cases where his attendance is important. If a witness in Jersey City be wanted for a trial in New York, he can generally be induced to attend, though he cannot be compelled to do so. So it will happen, we doubt not, if our plan be adopted."1

1 From the following statutes, dealing with this privilege, are to be distinguished those which prescribe the conditions on which a deposition is receivable (ante, §§ 1411-1413); the two sets of rules, as already noted (ante, § 2204), should properly coincide, but in fact that is not always the case: Ala. Code 1897, § 1825 (no subpoena is to issue for a witness residing more than 100 miles distant, unless on affidavit that his personal attendance is "necessary to a proper decision of the cause, and that his deposition would be insufficient for that purpose"); 1894, Ex parte Branch, 105 Ala. 231, 233, 16 So. 926 (under Code § 2793 - in the prior Code — a witness residing more than 100 miles from the court-house is not compelled to attend; under §§ 2793, 2800, and 2813, a witness who is a woman or disabled by illness, etc., and resides without the county, is not compellable to attend); Alaska C. C. P. 1900, § 630 (like Or. Annot. C. 1892, § 795); Ariz. P. C. 1887, § 2054 (attendance out of the county of residence or of subpoena-service is not obligatory, unless by judicial order indorsed on a subpoena, made on affidavit that "the evidence of the witness is material, and his attendance at the examination or trial necessary "); Ark. Stats. 1894, § 2940 (attendance at trial is not obligatory in a civil action "except in the county of his residence or an adjoining county," nor attendance at a deposition out of the county of residence or of service on 3 days' notice); § 2113 (in criminal causes, no such limitation exists); § 2979 (not compellable to attend where his deposition is allowable, unless he has failed to give it after summons); § 5788 (party residing in the same or adjoining county, compellable to attend); § 2980 (Court may order personal attendance in spite of the ordinary exemption, on affidavit that his testimony "is important, and that the just and proper effect of his testimony cannot, in a

reasonable degree, be obtained without an oral examination before the jury "); Cal. C. C. P. 1872, § 1989 (attendance out of county of residence, not compellable, unless within 30 miles) P. C. § 1330 ("No person is obliged to attend out of the county of residence or of service of subpoena, unless a subpoena is indorsed by the trial judge's order, or a judge of the supreme or superior court, on affidavit of the party "stating that he believes" the evidence to be material and attendance necessary); D. C. Comp. St. 1894, c. 20, § 17 (like U. S. R. S. § 870); Code 1901, § 1059 (no witness need attend for depositions out of the county of residence nor more than 40 miles from his residence); Ida. Rev. St. 1887, § 6039 (like Cal. C. C. P. § 1989); § 8152 (like Cal. P. C. § 1330); Ia. Code 1897, § 4660 (attendance not compellable (1) out of the State where served, or (2) more than 70 miles from the residence, or (3) except in a district or superior court, more than 30 miles from his place of residence, or of service, if not in the same county"); Kan. Gen. St. 1897, c. 95, § 340 (attendance on a civil trial not compellable "except in the county of his residence," nor for a deposition except there "where he may be at service of subpoena); Ky. C. C. P. 1895, § 534, C. Cr. P. § 151 (witness need not attend if residing more than 20 miles from the place of trial, or if residing, or being when served, out of the county; except in criminal cases); C. C. P. § 149 (party residing within 20 miles may be compelled to attend like any other witness); La. Rev. L. 1897, § 3941 (attendance "out of the parish" of residence, not compellable); § 3959 (personal attendance of any witness, compellable on affidavit that "the personal attendance of such witness in open court on the trial of the case is necessary in order to elicit the truth from such witness, which cannot be done by taking his deposition out

or

§ 2210. (1) Irrelevant Matters. The witness has no privilege to refuse to disclose matters irrelevant to the issue in hand, first, because irrelevancy is a concern of the parties alone, and may be obviated, as a ground for exclusion, by their consent or failure to object, and, secondly, because there is in the mere circumstance of irrelevancy nothing which creates for the witness a detriment or inconvenience such as should suffice (ante, § 2192) to override his general duty to disclose what the Court requires. Moreover, the recognition of a privilege of this sort would add innumerable opportunities to make a claim of privilege, and would thus tend to complicate a trial and add to the uncertainty of the event. Accordingly, it has always been accepted, at common law, that no privilege of this sort existed:

1794, Walker's Trial, 23 How. St. Tr. 1098: Mr. Erskine, cross-examining Thomas Dunn: "Who gave you the [glass of] shrub the next day ?"; Witness: "Suppose a gentleman was so friendly as to give me a glass of shrub, is that anything? Counsel: "I am Witness: not finding fault with it; who was it?"; 66 I do not know whether that is to be answered or not. . . . I do not suppose that is any material matter"; Mr. Justice Heath : "You have nothing to do whether it is material or no; answer the question."

1819, Nisbet, J., in Williams v. Turner, 7 Ga. 350: "It will not do to permit a witness to judge what questions he shall answer and what not; unless the questions are such as by law he is not bound to answer, he must answer all."

1853, Gamble, J., in Ex parte McKee, 18 Mo. 599, 601: "The opinion of the witness that the question is irrelevant is entitled to no consideration. If a merely frivolous or impertinent question were asked of a witness, the officer taking the deposition might not feel himself called upon to compel an answer; but it would only be in a very plain case of impertinence that he would undertake to decide that the witness should be allowed to avoid answering. The Court in which the cause is pending will at the trial reject irrelevant evidence; and it would greatly detract from the value of our statutes which authorize the taking of depositions, if the question of relevancy was to be raised before and decided by every justice of the peace or other officer who takes a single deposition in the cause, when he cannot know the aspect which the case will probably assume at the trial. To

allow the witness himself to pass upon the question of relevancy and refuse to answer such questions as he thought irrelevant, would be to deprive the party of the testimony of every unwilling witness. . . . [The statute authorized the committal of any person refusing to give evidence]' which may lawfully be required to be given.' It is sufficient to say in general terms that, so far as the witness himself is concerned, he may lawfully be required to answer any questions which it is not his personal privilege to refuse to answer. All evidence which is not of this character the witness may lawfully be compelled to give, even though it may not prove to be relevant and competent in the particular cause in which it is sought to be obtained. The objection to the relevancy or competency of evidence is for the parties litigant to make, and not for the witness." 1

Unfortunately, the compilers of the code of California, a generation ago, inserted a provision - by what authority or reasoning does not appearwhich expressly affirmed such a privilege, and this provision has since found its way, by imitation, into a few other codes; 2 though little practical appli