made subsequent to the commencement of this controversy, and, in fact, after the suit was commenced. It would be extremely dangerous to receive hearsay declarations in evidence respecting any matter, after the controversy has commenced. This would enable a party, by ingenious contrivances, to manufacture evidence to sustain his cause. By interrogatories propounded in a cautious manner to unsuspecting individuals, he might elicit the answers he most desired. It is therefore essential, when declarations are offered as evidence, that they should have been made before the controversy originated, and at a time, and under circumstances, when the person making them could have no motive to misrepresent the facts. 4 Camp. 409, case of The Berkley Peerage. The plaintiff having read the deposition of Francis Stuffle, deceased, in evidence, the defendant called the wife of the deceased to prove, as stated in the bill of exceptions, that her husband had been bribed by John Rist to give evidence in that case, and also to 221] prove that he had frequently told her he knew nothing of the plaintiff, or of Nicholas Stone, deceased. The plaintiff objected to the swearing of the witness, but the court overruled the objection, and permited the witness to give evidence. To this opinion the plaintiff excepted. It is a general rule that neither a husband nor wife can be a witness for or against the other. Co. Lit. 6, b; Hawk, bk. 2 ch. 46, sec. 70; Gilb. Ev. 11; Bull. N. P. 286; Fitch v. Hill et al. 11 Mass. 286. This rule is subject to some exceptions; as where the husband commits an offense against the person of the wife. 1 Hale, P. C. 301; Hawk. bk. 2, ch. 46, sec. 77; Bull. N. P. 287; 1 Bl. Com. 413. The wife may exhibit articles of the peace against her husband. Bull. N. P. 287. The husband and wife may be called as witnesses in the same case, and if in their statement of facts they should contradict each other, that would not destroy the competency of either. It would not follow, from such contradiction, that either was guilty of perjury. And in some cases, the wife may be a witness, under peculiar circumstances, where the husband may be interested in the question, and to some extent in the event of the cause. 8 East, 203; Gilb. Ev. 139. In the case of The King v. Cliviger, 2 Term, 268, the court held that a wife should not be called in any case to give evidence even tending to criminate her husband. Mr. Justice Grose, in that case observed, "In all the books which treat of evidence there are certain technial rules laid down which are highly beneficial to the public, and ought not to be depart ed from. Some of these relate to husband and wife; and we find the general rule as to them to be founded, not on ground of interest, but of policy, by which it is established that a wife shall not be called to give testimony in any degree to criminate her husband. And Lord Holt says that she shall not be called, indirectly, to criminate him. And the rule seems to have governed all the decisions from that time to the present." In the case of The Executrixes of Stead v. Pritchett, 6 Term R. 680, the court said, "Ratcliff is one of the plaintiffs on the record; he has, therefore, an interest in the cause, and that cannot be prejudiced by any act, or by the evidence of the wife." In the case of Aveson v. Kinnaird, 6 East, 192, the counsel asserted in the argument that the declarations of the wife could not be permitted as evidence to show that her husband had been guilty of fraud, or in any manner to criminate him. And he contended that the rule of law was general, and extended even to cases where the wife was afterwards divorced from her husband. Lord Ellenborough, assenting to the rule, observed, "that goes on the ground that the confidence which subsisted between them at the time, shall not be violated in consequence of any future separation." And his lordship observes, in the same case, "It is sound doctrine, *that trust and [*222 confidence between man and wife shall not be betrayed." In this case, however, the court permitted the declarations of the wife to be given in evidence as to the bad state of her health about the time the policy of insurance on her life was executed, the action being founded on such policy. The above case of The King v. Cliviger has been somewhat considered in the court of King's Bench, in the case of The King v. Inhabitants, of all Saints, of Worcester; and the court seemed to think that the rule laid down in that case was too large and general. But, at the same time, they observed that the rule in the case of The King v. Cliviger, admitting it to its utmost extent, did not exclude the evidence in the case then under discussion. Philips's Ev. 69. It has been said that on the grounds of State policy, the wife is a competent witness against her husband in case of treason. Bull. N. P. 289; 1 Brownl. 47; Bac. Abr. Ev. A. 1; but it has since been settled that the wife is not bound to discover the treason of the husband. 1 Brownl. 47. The law does not seem to be entirely settled how far, in a collateral case, a wife may be examined on matters in which her husband may be actually interested. Nor whether in such a case she may not be asked questions as to facts that may in some measure tend to criminate her husband, but which afford no foundation for a prosecution. The decisions which have been made on these points seem to have been influenced by the circumstances of each case, and they are somewhat contradictory. It is, however, admittted in all the cases that the wife is not competent, except in cases of violence upon her person, directly to criminate her hus band; or to disclose that which she has learned from him in their confidential intercourse. Some color is found in some of the elementary works for the suggestion that this rule, being founded on the confidential relations of the parties, will protect either from the necessity of a disclosure; but will not prohibit either from voluntarily making any disclosure of matters received in confidence; and the wife and the husband have been viewed, in this respect, as having a right to protection from a dis closure, on the same principle as an attorney is protected from a disclosure of the facts, therefore, that the court did not err in reject communicated to him by his client. ing the deposition. For the errors above specified, the judgment of the District Court must be reversed, and the cause set down for further proceedings. Mr. Justice Baldwin dissented. The rule which protects an attorney in such a case, is founded on public policy, and may be essential in the administration of justice. But this privilege is the privilege of the client, and not of the attorney. The rule which protects the domestic relations from exposure rests upon considerations connected with the peace *This cause came on to be heard on [*224 of families. And it is conceived that this the transcript of the record from the District principle does not merely afford protection to Court of the United States for the Eastern Disthe husband and wife, which they are at lib-trict of Louisiana, and was argued by counsel; erty to invoke or not, at their discretion, when on consideration whereof, it is ordered and the question is propounded; but it renders adjudged by this court that the judgment of them incompetent to disclose facts in evidence the said District Court in this cause be, and the 223] in violation of the rule. And it is same is hereby reversed with costs; and that well that the principle does not rest on the this cause be, and the same is hereby remanded discretion of the parties. If it did, in most to the said District Court for further proceedinstances it would afford no substantial pro- ings to be had therein, in conformity to law tection to persons uninstructed in their rights, and justice and the opinion of this court. and thrown off their guard and embarrassed by searching interrogatories. N. HENNEN. Practice-mandamus, Chief Justice no power to issue at August Term. In the present case the witness was called to discredit her husband; to prove, in fact, *Ex-parte in the matter of DUNCAN [*225 that he had committed perjury; and the establishment of the fact depended on his own confession. Confessions which, if ever made, were made under all the confidence that subsists between husband and wife. It is true the husband was dead, but this does not weaken the principle. Indeed, it would seem rather to increase than lessen the force of the rule. Can the wife, under such circumstances, either voluntarily be permitted, or by force of authority be compelled to state facts in evi dence which render infamous the character of her husband. We think, most clearly, that she cannot be. Public policy and established principles forbid it. This rule is founded upon the deepest and soundest principles of our nature. Principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence. We think that the court erred in overruling the objections to this witness. The next exception by the plaintiff arises from the rejection of the deposition of Mouzat, which had been taken in the case of the parties in the Parish Court. To lay the foundation for reading this deposition, John Rist, who represents himself to be the agent of the plaintiff, swore that the witness left Louisiana before the commencement of this suit, and ascended the Mississippi with the intention of going to Ohio; and that since then he has not heard from him, although he has made inquiries. This does not amount to that degree of diligence which the law requires to introduce secondary evidence, and such was the deposition offered. The plaintiff might have taken out a subpœna, the return of which, not served, would have been better evidence that the witness was not within the judicial district. We think, The Chief Justice of the Supreme Court, residing in the Fourth Circuit, who, under the Act of Congress of 1802 (ch. 31) holds the court at the August Term, has not power to grant a rule for a mandamus, or a rule to show cause why a mandamus shall not issue. Such a rule does not fall within the description of cases enumerated in the act of Term. Congress, for the action of the court at the August T the August Term, 1838, of the court, mandamus to the Honorable Philip K. Lawrence, Judge of the District Court of the United States for the Eastern District of Louisiana, requiring the said judge to restore Duncan N. Hennen to the office of clerk of the District Court. A Duncan Hennen filed a petition for a Mr. Coxe, of counsel for the petitioner, filed and read the petition which was addressed to the Chief Justice and associate justices of the Supreme Court, setting forth that on the 21st day of February, 1834, the petitioner was appointed clerk of the District Court of the Unit ed States in and for the Eastern District of Louisiana, by the Honorable Samuel H. Harper, Judge of the District Court, and a commission was given to him appointing him to the said office. The petitioner states that the appointment was accepted, and the same was recorded on the minutes of the District Court on the day of the appointment, and the oath of office and a bond was given by the petitioner, with sureties, in conformity with the provisions of the statute in such case made and provided, for the faithful performance of the duties of the said office, all of which was also entered on the minutes of the court. The petitioner further states that Duncan N. Hennen entered on the duties of the office of clerk of the District Court for the Eastern District of Louisiana, and held the same, and continued to perform the duties thereunto appertaining "methodically, promptly, skillfully, He and uprightly," to the satisfaction of the said | ed and delivered to John Winthrop a paper District Court, and of the parties suitors in the purporting to be a commission appointing him said court. That by virtue of the appoint- clerk of the District Court of the United States ment and of the provisions of the statute in for the Eastern District of Louisiana, and that such case made and provided, the petitioner Mr. Winthrop, under and by virtue of that was, also, from the period of the organization commission, claims a right to hold the said ofof the Circuit Court of the United States for fice, and does, in fact, to a certain extent, exthe said district of Louisiana, in like manner, ercise the duties appertaining thereto; and he the clerk of the said Circuit Court, and per- is by Judge Lawrence recognized as the only formed all the duties appertaining to said legal clerk of the District Court, and receives office; and during the period aforesaid, the the fees and emoluments of said office. petitioner, in like manner, received the fees has obtained possession of the records, minutes, and emoluments of office belonging to the same. and documents of the office, and he claims to The petitioner further states that he so con- exercise all the duties of clerk of the District tinued to perform the said duties, and to re- Court; and he and Judge Lawrence prevent ceive the said emoluments, and in all respects the petitioner from performing any of the duto hold and occupy said offices, until on or ties of clerk, or receiving the fees and emoluabout the 18th day of May, in the year 1838, ments belonging to the office. when he received a communication from the Honorable Philip K. Lawrence, then and now the judge of the said District Court of the United States for the Eastern District of Louisiana, in the following terms: 226*] *New Orleans, May 18th, 1838. The petitioner further stated that on the 21st day of May, 1838, the Circuit Court [*227 of the United States for the Eastern District of Louisiana, met, according to law, when the Honorable John M'Kinley, one of the associate justices of the Supreme Court of the United States, and the said Judge Lawrence, took their seats on the bench as judges of the Circuit Court; and the petitioner and John Winthrop severally presented themselves, each claiming to be rightfully and lawfully the clerk of the Circuit Court: and the matter was ar "In taking this step, I desire to be under-gued by counsel for each of the said claimants. stood as neither prompted by any unfriendly disposition toward you personally, nor wishing to cast the slightest shade of censure on your official conduct. "On the contrary, whether it will afford you any gratification to be thus assured or not, I avail myself of the occasion to declare to you that my most ardent wishes respecting you are for your entire success and prosperity in life. I consider it due to myself to have made this declaration; and a sense of justice to you demands that I should do what lies in my power to repel any unfavorable inference that might be drawn from your dismissal from the office of elerk, in regard to the manner in which the duties of the office have been discharged by you. On this subject, the situation in which I have been placed during the last two years and upwards, has afforded me the means of speaking advisedly; and I am happy in being able to testify, as I now do unreservedly, that the business of your office, during that period, has been conducted methodically, promptly, skillfully, and uprightly. "In appointing Mr. Winthrop to succeed you, I have been purely actuated by a sense of duty, and feelings of kindness towards one whom I have long known, and between whom and myself the closest friendship has always subsisted. I cannot but consider his claims to any benefit in my power to confer, as of a paramount character; and as his capacity to fill the office in question cannot be disputed, I feel that I am not exercising any unjust preference in bestowing on him the appointment. I am, very respectfully, etc. "P. K. Lawrence, "United States Judge, District of Louisiana. "To D. N. Hennen, Esq." The petitioner proceeded to state that on the 18th day of May, 1838, Judge Lawrence execut The judges differed in opinion on the question of right and being unable to concur in opinion, neither of the said parties was admitted to act as clerk, or recognized by the court as being the rightful clerk, and no business was or could be transacted, and the court adjourned. The petitioner further represents that he is advised and verily believes that he was legally and in due form appointed the clerk of the said District Court, and by virtue thereof became lawfully the clerk of the said Circuit Court; and he has never resigned the said office, or been legally removed from the same, and he is rightfully entitled to hold and exercise the same, and to receive the fees and emoluments to the same belonging; and that he is illegally kept out of the said office of clerk of the said District Court, and prevented from performing the duties thereof, and from receiving the fees and emoluments attached to the same, by the illegal acts and conduct of the said Philip K. Lawrence, judge as aforesaid, and of the said John Winthrop, claiming to hold the said office by some pretended, but, as the petitioner is advised and believes, illegal and void appointment or commission, from said Judge Law rence. The petitioner further states that the judges of the said Circuit Court continue to differ in opinion as to the legal rights of the petitioner and said John Winthrop to said officers, so that no one does or can perform the duties of said office of clerk of the Circuit Court aforesaid; and that the suitors in this court are thereby delayed, and the administration of justice therein wholly suspended, and the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said Circuit Court is wholly suspended, and incapable of being exercised. All these evils are stated to be remediless in the ordinary proceedings before the District and Circuit Court, and can only be terminated by the interposition of this court, by its extraordinary process of mandamus. The petitioner therefore prays that a writ of mandamus may be awarded to be directed to the Honorable Philip K. Lawrence, Judge of the said District Court of the United States for the Eastern District of Louisiana, commanding him that he forthwith restore the petitioner to his office of clerk of said District Court of the United States for the Eastern District of Louisiana, or for a rule on the district judge, to show cause why such a writ of mandamus shall not be awarded. Mr. Chief Justice Taney, then holding the August Term of the Supreme Court, ordered that a rule of Philip K. Lawrence, District Judge as aforesaid, should be awarded, requir228] ing him to show cause, *at the following January Term of the Supreme Court, why a mandamus should not be awarded to the district judge, as prayed for; with leave to any party interested in the premises to move for a discharge thereof on or before the return day, the second Saturday of the term. Notice of this rule was required to be served on the district judge, and on John Winthrop, Esq. Before the return of the rule Mr. Gilpin, of counsel for John Winthrop, Esq. moved the court to discharge the rule granted by Mr. Chief Justice Taney, at the August Term of the court, on the ground that the court held at that time had not authority to make such a rule. He stated the readiness of Mr. Winthrop to meet the question raised by the proceedings, and proposed that there should be substituted a rule, to be now granted by the court, of the same tenor with that made at the August Term; and that the same should be returnable on the second Saturday of this term. This proposition was accepted by the counsel of the relator, and approved by the court. Mr. Chief Justice Taney delivered the following opinion, on the motion of Mr. Gilpin: At the August Term of the Supreme Court, held by the Chief Justice or Judge for the Fourth Circuit, according to the Act of Congress of 1802, a motion was made for a rule on the judge of the District Court of the United States for the Eastern District of Louisiana, to show cause why a mandamus should not issue, commanding the said judge to restore Duncan N. Hennen to the office of clerk of the said District Court. the clerk of the District Court, and consequently, by virtue of the acts of Congress, was also the clerk of the Circuit Court; that the district judge, however, adhered to his opinion that Winthrop was lawfully appointed by him, and the court being thus divided, neither of the claimants could be recognized as clerk; and that the whole business of the Circuit Court was therefore continued over, and that no process could now issue from the court until this controversy should be settled. Upon this evidence, the rule to show cause was granted, returnable *to the Supreme [*229 Court on Saturday, the 26th of January, with leave to the district judge to move to discharge the rule, even before the return day above mentioned. A motion was now made to discharge the rule upon the ground that the judge of the Fourth Circuit, sitting alone at the August Term, had not the power to lay the rule. The court stopped the counsel in support of the motion, and the Chief Justice said: The court do not desire an argument on the subject. When I granted the rule, I stated that I strongly inclined to the opinion that I had no power to lay such a rule, in any case, at the August Term, and it is due to the counsel for the relator to say that he acknowledged his own doubts when he brought the subject before the court. But as the question was an important one, and might again occur, I thought it proper that it should be settled by the judgment of the court at its regular session, and not by a single judge. I therefore laid the rule, because it was the only mode in which I could bring the subject before the court for decision. We have conferred together since we assembled for the present session, and we are unanimously of opinion that such a rule cannot be laid at the August Term; that the Act of 1802, ch. 31, 2 Story's Laws U. S. page 854, gives the power to the judge of the Fourth Circuit, at that term, "to make all necessary orders touching any suit, action, appeal, writ of error, process, pleadings, or proceedings, returned to the said court, or depending therein;" but that a rule to show cause why mandamus sould not issue does not fall within the description of cases enumerated in the act of Congress; and that the judge of the Fourth Circuit, when sitting at the August Term, has not, therefore, the power to grant such a rule in any case. The rule to show cause must therefore be discharged. *Ex-parte in the matter of DUN- [*230 CAN N. HENNEN. court-his tenure of office. It appeared from the depositions and other evidence laid before the court at that term, that Duncan N. Hennen, the relator, who had been for several years clerk of the District Court, had been recently removed from office by the district judge, and John Winthrop appointed Mandamus-appointment of clerk of district in his place; and a letter from the judge to the relator was produced, stating that the removal had not been made on account of any misconduct on his part, but merely from the desire of the judge to make provision for Winthrop, who was his personal friend, and well qualified for the office. It also appeared, that at the meeting of the Circuit Court, which took place shortly afterwards, the presiding judge of the Circuit Court was of opinion that the removal was not authorized by law, and that Hennen was still Motion for a rule on the district Judge of the eastern district of Louisiana to show cause why a mandamus should not be issued requiring him to restore Duncan N. Hennen to the office of the clerk of the District Court. The petition states the appointment of the relator to the office of clerk of the District Court, in 1834; the full and complete performance of his duties as clerk of the court until May, 1837; the acknowledgment of the fidelity and capacity with which the duties of the office were and the appointment of another person to the of performed, stated in writing by the district judge, Ace, from personal motives, and the influence of friendship, and a knowledge of the capacity of the person appointed to perform the duties of the of fice. The petition also states the performance of the duties of clerk of the Circuit Court of the Eastern District of Louisiana, under the appointment as clerk of the District Court, and the offer to perform those duties after his asserted removal as clerk of the District Court; and that the judges of the Circuit Court being divided in opinion as to his right to exercise the office of clerk, the business of the Circuit Court was entirely suspended. The appointment of clerks of courts properly belongs to the courts of law, and a clerk of the court is one of those officers contemplated by the provision in the Constitution, giving to Congress the power to vest the appointment of inferior officers as they think proper. The appointing power des: ignated by the Constitution, in the latter part of the second section of the second article of the Constitution, was no doubt intended to be exercised by the department of the government to which the officer to be appointed most appropriately belonged. It cannot be admitted that it was the intention of the Constitution that those officers which are denominated inferior officers should be held during life. In the absence of all constitutional or statutory provision as to the removal of such officers, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. The tenure of ancient common law officers, and the rules and principles by which they are governed, have no application to the office of the clerk of a District Court of the United States. The tenure, in those cases, depends in a great measure upon ancient usage. But in the United States there is no ancient usage which can apply to and govern the tenure of offices created by the Constitution and laws: they are of recent origin, and must depend entirely on a just construction of our Constitution and laws: and the like doctrine is held in England, where the office is not an ancient common law office, but of modern origin, under some act of Parliament. In such a case, the tenure of the office is determined by the meaning and intention of the statute. The law giving the district courts the power of appointing their own clerks, does not prescribe any form in which this shall be done. The power vested in the court is a continuing power, and the mere appointment of a successor would, per se, be a removal of the prior incumbent, so far at least as his rights were concerned. The Supreme Court can have no control over the appointment or removal of a clerk of the District Court, or entertain any inquiry into the grounds of the removal. If the judge is chargeable with any abuse of his power, the Supreme Court is not the tribunal to which he is answerable. THE court having decided that the rule grant ed at the August Term of the court held by Mr. Chief Justice Taney should be discharged, the counsel presented another petition to the court, setting forth the same facts as those stated in the petition, the matters of which are set forth in the report of the preceding case, with others. The additional facts stated in the petition were that the petitioner is in the full and undis puted possession of the seal of the Circuit Court for the Eastern District of Louisiana, and of the records of the said Circuit Court. 231*] That there is now pending in said Circuit Court a cause in which the petitioner, a citizen of the State of Louisiana, is the plaintiff, and Rezin D. Shepherd, a citizen of Maryland, is the defendant; that the value of the property in controversy between petitioner and said Shepherd, exceeds in amount the sum of six thousand dollars in cash. That in consequence of the disagreement between the judges of the Circuit Court, and the refusal of Judge Lawrence to allow the petitioner, the true and lawful clerk of said court, to perform the duties thereof, the petitioner is prevented from pro ceeding in said cause; and the petitioner is prevented from bringing the said cause up to this court for its final decision. The petitioner further states that the judges of the said Circuit Court continue to differ in opinion as to the legal rights of the petitioner and said John Winthrop to the offices of clerk of the District and Circuit Courts, so that no one does or can perform the duties of the office of clerk of the Circuit Court aforesaid; and that the suitors in said court are thereby delayed, and the administration of justice therein wholly suspended; and the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said Circuit Court wholly suspended, and incapable of being exercised. "All which evils are remediless at and by the ordinary proceeding before the said district or circuit courts, and can only be terminated and redressed by the interposition of this honorable court, by its extraordinary process of mandamus.” The petition prays that the court, after consideration, will award a writ of mandamus to be directed to the Honorable Philip K. Lawrence, Judge of the District Court of the United States for the Eastern District of Louisiana, commanding him forthwith to restore the pe titioner to his office of clerk of the District Court of the United States for the Eastern District of Louisiana. By an agreement between the counsel for the relator and the judge of the District Court of Louisiana, the questions presented to the court on the petition were argued; the usual notice being dispensed with. The motion for a mandamus was argued by Mr. Coxe and Mr. Southard for the relator, and by Mr. Gilpin and Mr. Jones for the district judge of Louisiana. Mr. Coxe, with whom was Mr. Southard: The case which it is proposed to submit to the consideration of the court is one equally novel and interesting. The principles which it involves are alike important to the parties on the record and to the public. It is a case of the first impression; for although on a cursory and superficial examination it may be thought to bear an analogy to others which have been heretofore and elsewhere discussed and disposed of, a more careful examination will make it perfectly apparent that it is now for the first time, in its naked simplicity, presented *for investigation and deci- [*232 sion. At all events, it is, beyond all doubt, now for the first time exhibited as the subject of judicial consideration. The record presents a plain and unembarrassed case. In 1834 Mr. Hennen, the relator, was duly appointed to the office of clerk of the District Court for the Eastern District of Louisiana. He accepted the appointment, took the oath of office prescribed by law, and gave a bond with sureties approved by the judge, conformably to the provisions of the act of Congress. Of all these facts the record contains the most abundant evidence. He continued to hold this office and to perform its duties "methodically, promptly, skillfully, and uprightly," until the 18th of May, 1838, when he received from the Honorable Philip K. Lawrence, who then held the office |