The United States v. Samuel J. Tilden. of books and papers. The case did not call for a decision of this point. I have given the question as full consideration as a very limited time for examination will allow, and have reached the conclusion that under this section it is competent for the court to issue a subpoena duces tecum to compel the production, upon the examination, of books and papers which would be competent evidence in the cause. This provision for the examination of witnesses de bene esse before the trial, first enacted in the Act of 1789, has been said to be a novelty in legislation. Until a statute of the first year of William IV. (1831), there was no English Act of general application giving parties in common law actions this relief against the probable loss of testimony from the absence or death of witnesses. Prior Acts, beginning in the reign of George III., gave partial relief, limited mostly to the taking of testimony of persons in the remote colonies or dependencies of the realm. Prior to this more recent statute, the courts of common law, impressed with the hardship and injustice resulting from such loss of testimony, forced parties to consent to the taking of testimony by postponing causes, refusing to enter nonsuits or judgments in case such consent was unreasonably declined, and by other like rude devices. The power to issue commissions for the taking of testimony of witnesses, except in foreign countries, had a very limited application within the kingdom and afforded no sufficient protection against this evil. (See the English Cases and Statutes, 2 Phillipps on Evid., 4th Amer. Ed. p. 843, et seq.) In New York it was not till after this enactment by Congress that any such statute was passed, but the practice in substantial conformity with the statutes afterwards passed was recognized as proper, independently of any statutory authority. (See Mumford v. Church, 1 Johns Ca. 147; Sandford v. Burrell, Anth. N.P. 184; Jackson v.Kent, The United States v. Samuel J. Tilden. 7 Cow. 63; Wait v. Whitney, Id. 69.) Indeed the first statute in New York is declared by the revisers to be founded on these early cases. (1 R. L. 455.) The general course of proceeding was by a special application to the court and an order for the examination based on proof of the essential facts making the relief necessary, and not by the issue of a subpæna properly so called. mony The purpose of this Act of Congress undoubtedly was to provide a convenient and effectual remedy for this possible failure of justice from the anticipated loss of material testimony, and also for the relief of witnesses living at such distance from the place of trial that they could not reasonably be required to attend in person, which reasonable limit of distance was fixed at a hundred miles, although it was probably competent for Congress to authorize the summoning of a witness to attend the trial from any part of the United States. And the statute provided that "whenever the testiof any person shall be necessary in any civil cause depending in any district in any court of the United 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 United States, or out of such district, and 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 every such person may be taken de bene esse,” etc. "Every person so deposing, as aforesaid, shall be carefully examined, etc., and sworn to testify the whole truth," etc. "And any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court." (1 Stat. at Large, p. 88.) It is impossible, I think, to escape the conclusion that the purpose of the statute was to give parties, in all substantial respects, the full benefit of the testimony of witnesses to material facts, The United States v. Samuel J. Tilden. whose testimony they were liable to lose from age, infirmity or departure from the country, and also of witnesses living at a greater distance from the court than one hundred miles, who, for their own convenience, were to be excused from attending. The statute thus debars the parties from calling into court witnesses residing more than one hundred miles from the place of trial, even though living within the jurisdiction and, but for the statute, within reach of the subpoena of the court. This extension of the provision to distant witnesses very clearly requires, as it seems to me, that a construction should be given to the statute which shall not substantially deprive the parties of the benefit of their testimony. And considering the very large proportion of civil causes in which the testimony of witnesses, respecting books and writings in their possession and material to be put in evidence on the trial, is absolutely essential to the proper enforcement of the rights of one party or the other, the statute would, as it seems to me, fail of its intended purpose and effect if the parties were debarred by it from the compulsory production by witnesses more than a hundred miles from the place of trial, of papers material as evidence in the cause. While the statute, as being in derogation of the common law, must be strictly followed as to the course of procedure prescribed by it, (Bell v. Morrison, 1 Peters 355), yet it must have a fair and reasonable construction, having regard to the particular purpose it was intended to subserve and the special evils it was designed to remedy. It is to be observed, also, that at the time of its enactment it was the only statute of the United States in force making any provision for the compulsory attendance for examination of witnesses out of Court, to be used upon trials in the Federal Courts. The statute regulating the attendance of witnesses under examination on commission, and providing that the courts of the district in The United States v. Samuel J. Tilden. which they might be examined should compel their attendance, and the production by them in proper cases of books and papers, (now Rev. Stat. §§ 868-870), was not passed till 1827, nearly forty years later. And although this statute of 1789 declares that "nothing herein shall be considered to prevent any court of the United 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," yet I think it cannot be claimed that this proviso effectually supplied, or was understood by Congress to supply, the defect in the statute for de bene esse examinations of witnesses beyond a hundred miles from the place of trial, and as furnishing other effectual means of compelling the production of material books and papers by such distant witnesses, since it was not till long afterwards that any statute was passed giving to the courts the power to compel such production of books and papers in case of witnesses examined under commission. There was one large class of causes, that might arise under laws relating to patents, comtemplated from the beginning as liable to be pending in the Federal Courts, although no patent law had then been passed, to which this reasoning applies with special force. In another large and important class of Federal causes, Admiralty suits, which were clearly within the view of the framers of this law at the time of its enactment, this construction of the Act is peculiarly necessary, since from the occupation of the witnesses they must be tried largely upon depositions. But the urgent necessity for this construction is by no means confined to any particular class of cases. The argument that a subpæna duces tecum is not named in the statute, nor the matter of the production of books and papers, is, I think, sufficiently met by saying that such mention was wholly unnecessary. The provision The United States v. Samuel J. Tilden. for compelling obedience on the part of the witness was in these words: "Any person may be compelled to appear and depose as aforesaid, in the same manner as to appear and testify in court." It was for a long time considered doubtful whether this power of compulsion was conferred upon the magistrate who was empowered to take the examination or upon the court of the district in which the examination is taken. The latter view has prevailed. (In re Humphrey, 2 Blatch. C. C. 228; In re Peck, 3 Blatch. C. C. 113; Ex parte Judson, 3 Blatch. C. C. 89.) The words "may be compelled in the same manner as to appear and testify in court,” refer to the instrumentalities then in force in the common practice of the courts for compelling the attendance and the testimony of witnesses, the writ of subpana and the power to punish disobedience to a lawful order as a contempt. This is the practical construction which these words have received. (Cases last cited.) The writ of subpœna duces tecum was, equally with the subpæna ad testificandum, and in certain cases the writ of habeas corpus ad testificandum, such an instrumentality in common use. The failure to mention it or to define the instrumentalities further than by a general reference, broad enough to include it, constitutes, as it seems to me, no valid argument for its intended exclusion, when the evident purpose of the Act and the construction necessary for its beneficial operation are considered. The argument, drawn from the comparison between § 863 and the sections of the Revised Statutes regulating the compulsory attendance of witnesses and their production of books and papers upon the examination, would have great weight if they were contemporaneous statutes. If these other provisions had been contained in the Judiciary Act of 1789, it could be argued with great force that this especial provision for producing books and papers in the one case |