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made subsequent to the commencement of this In the case of The Executrixes of Stead v. controversy, and, in fact, after the suit was Pritchett, 6 Term R. 680, the court said, commenced.

"Ratcliff is one of the plaintiffs on the record; It would be extremely dangerous to receive he has, therefore, an interest in the cause, and hearsay declarations in evidence respecting any that cannot be prejudiced by any act, or by the matter, after the controversy has commenced. evidence of the wife.” This would enable a party, by ingenious con In the case of Aveson v. Kinnaird, 6 East, trivances, to manufacture evidence to sustain 192, the counsel asserted in the argument that his cause. By interrogatories propounded in a the declarations of the wife could not be percautious manner to unsuspecting individuals, mitted as evidence to show that her husband he might elicit the answers he most desired. had been guilty of fraud, or in any manner to

It is therefore essential, when declarations criminate him. And he contended that the rule are offered as evidence, that they should have of law was general, and extended even to cases been made before the controversy originated, where the wife was afterwards divorced from and at a time, and under circumstances, when her husband. Lord Ellenborough, assenting to the person making them could have no motive the rule, observed, “that goes on the ground to misrepresent the facts. 4 Camp. 409, case that the confidence which subsisted between of The Berkley Peerage.

them at the time, shall not be violated in The plaintiff having read the deposition of consequence of any future separation.” Francis Stuffle, deceased, in evidence, the de And his lordship observes, in the same case, fendant called the wife of the deceased to “It is sound doctrine, *that trust and (*222 prove, as stated in the bill of exceptions, that confidence between man and wife shall not be her husband had been bribed by John Rist betrayed." to give evidence in that case, and also to In this case, however, the court permitted 221'] *prove that he had frequently told her the declarations of the wife to be given in evi. he knew nothing of the plaintiff, or of Nicholas dence as to the bad state of her health about Stone, deceased. The plaintiff objected to the the time the policy of insurance on her life was swearing of the witness, but the court over. executed, the action being founded on such ruled the objection, and permited the witness policy. to give evidence. To this opinion the plaintiff The above case of The King v. Cliviger has excepted.

been somewhat considered in the court of King's It is a general rule that neither a husband Bench, in the case of The King v. Inhabitants, nor wife can be a witness for or against the of all Saints, of Worcester; and the court other. Co. Lit. 6, b; Hawk, bk. 2 ch. 46, seemed to think that the rule laid down in that sec. 70; Gilb. Ev. 11; Bull. N. P. 286; Fitch case was too large and general. But, at the v. Hill et al. 11 Mass. 286.

same time, they observed that the rule in the This rule is subject to some exceptions; as case of The King v. Cliviger, admitting it to its where the husband commits an offense against utmost extent, did not exclude the evidence in the person of the wife. 1 Hale, P. C. 301; the case then under discussion. Philips's Ev. 69. Hawk. bk. 2, ch. 46, sec. 77; Bull. N. P. It has been said that on the grounds of State 287; 1 Bl. Com. 413. The wife may exhibit policy, the wife is a competent witness against articles of the peace against her husband. Bull. her husband in case of treason. Bull. N. P. N. P. 287.

289; 1 Brownl. 47; Bac. Abr. Ev. A. 1; but it The husband and wife may be called as wit has since been settled that the wife is not nesses in the same case, and if in their state bound to discover the treason of the husband. ment of facts they should contradict each 1 Brownl. 47. other, that would not destroy the competency The law does not seem to be entirely settled of either. It would not follow, from such con- how far, in a collateral case, a wife may be extradiction, that either was guilty of perjury. amined on matters in which her husband may

And in some cases, the wife may be a wit. be actually interested. Nor whether in such a ness, under peculiar circumstances, where the case she may not be asked questions as to facts husband may be interested in the question, and that may in some measure tend to criminate to some extent in the event of the cause. 8 her husband, but which afford no foundation East, 203; Gilb. Ev. 139.

for a prosecution. The decisions which have In the case of The King v. Cliviger, 2 Term, been made on these points seem to have been 268, the court held that a wife should not be influenced by the circumstances of each case, called in any case to give evidence even tend- and they are somewhat contradictory. It is, ing to criminate her husband. Mr. Justice however, admittted in all the cases that the wife Grose, in that case observed, “In all the books is not competent, except in cases of violence which treat of evidence there are certain tech- upon her person, directly to criminate her hus. nial rules laid down which are highly bene- band; or to disclose that which she has learned ficial to the public, and ought not to be depart from him in their confidential intercourse. ed from. Some of these relate to husband Some color is found in some of the elemenand wife; and we find the general rule as to tary works for the suggestion that this rule, them to be founded, not on ground of interest, being founded on the confidential relations of but of policy, by which it is established that the parties, will protect either from the neces. a wife shall not be called to give testimony in sity of a disclosure; but will not prohibit either any degree to criminate her husband. And from voluntarily making any disclosure of matLord Holt says that she shall not be called, in ters received in confidence; and the wife and directly, to criminate him. And the rule seems the husband have been viewed, in this respect, to have governed all the decisions from that as having a right to protection from a dis time to the present."

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. The rule which protects an attorney in such For the errors above specified, the judgment & case, is founded on public policy, and may of the District Court must be reversed, and the be essential in the administration of justice. cause set down for further proceedings. But this privilege is the privilege of the client, and not of the attorney. The rule which pro Mr. Justice Baldwin dissented. tects 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 proceed. instances 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.

In the present case the witness was called to discredit her husband; to prove, in fact, *Ex-parte in the matter of DUNCAN (*223 that he had committed perjury; and the es.

N. HENNEN. tablishment of the fact depended on his own confession. Confessions which, if ever made, Practice-mandamus, Chief Justice no power to were made under all the confidence that sub

issue at August Term. sists between husband and wife. It is true the husband was dead, but this does not weaken The Chief Justice of the Supreme Court, residthe principle. Indeed, it would seem rathering in the Fourth Circult, who, under the Act of to increase than lessen the force of the rule. August Term, has not power to grant a rule for a

Congress of 1802 (ch. 31) holds the court at the Can the wife, under such circumstances, ei- mandamus, or a rule to show cause why a manda

Such a rule does not fall withther voluntarily be permitted, or by force of mus shall not issue.

in the description of cases enumerated in the act of authority be compelled to state facts in evi: Congress, for the action of the court at the August dence which render infamous the character of Term. her husband. We think, most clearly, that she

T the August , 1838, , ciples forbid it.

This rule is founded upon the deepest and mandamus to the Honorable Philip K. Law. soundest principles of our nature. Principles rence, Judge of the District Court of the United which have grown out of those domestic rela States for the Eastern District of Louisiana, retions that constitute the basis of civil society, quiring the said judge to restore Duncan N. and which are essential to the enjoyment of Hennen to the office of clerk of the District that confidence which should subsist between Court. those who are connected by the nearest and

Mr. Coxe, of counsel for the petitioner, filed dearest relations of life. To break down or and read the petition which was addressed to impair the great principles which protect the the Ch Justice and associate justices of the sanctities of husband and wife, would be to Supreme Court, setting forth that on the 21st destroy the best solace of human existence. day of February, 1834, the petitioner was ap

We think that the court erred in overruling pointed clerk of the District Court of the Unitthe objections to this witness.

ed States in and for the Eastern District of The next exception by the plaintiff arises Louisiana, by the Honorable Samuel H. Harper, from the rejection of the deposition of Mouzat, Judge of the District Court, and a commission which had been taken in the case of the par. was given to him appointing him to the said ties in the Parish Court.

office. To lay the foundation for reading this dep The petitioner states that the appointment osition, John Rist, who represents himself to was accepted, and the same was recorded on be the agent of the plaintiff, swore that the the minutes of the District Court on the day of witness left Louisiana before the commence the appointment, and the oath of office and a ment of this suit, and ascended the Mississippi bond was given by the petitioner, with sureties, with the intention of going to Ohio; and that in conformity with the provisions of the statsince then he has not heard from him, al- ute in such case made and provided, for the though he has made inquiries.

faithful performance of the duties of the said This does not amount to that degree of dili- office, all of which was also entered on the min. gence which the law requires to introduce utes of the court. secondary evidence, and such was the deposi The petitioner further states that Duncan N. tion offered.

Hennen entered on the duties of the office of The plaintiff might have taken out a sub clerk of the District Court for the Eastern Dig. pæna, the return of which, not served, would trict of Louisiana, and held the same, and conhave been better evidence that the witness was tinued to perform the duties thereunto apper. not within the judicial district. We think, taining “methodically, promptly, skillfully,

bannot be. Public policy and established prin- A "Duncana un Hennen' filed a petition for 3

end 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 aent 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 of. of 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. He 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 emolu. about the 18th day of May, in the year 1838, ments belonging to the office. when he received a communication from the The petitioner further stated that on the 21st Honorable Philip K. Lawrence, then and now day of May, 1838, *the Circuit Court [*227 the judge of the said District Court of the of the United States for the Eastern District of United States for the Eastern District of Loui- Louisiana, met, according to law, when the siana, in the following terms:

Honorable John MʼKinley, one of the associate 226') **New Orleans, May 18th, 1838. justices of the Supreme Court of the United

“Dear Sir: The object of this communication States, and the said Judge Lawrence, took is to apprise you of your removal from the their seats on the bench as judges of the Cir. office of clerk of the United States District cuit Court; and the petitioner and John WinCourt of the Eastern District of Louisiana, and, throp severally presented themselves, each of the appointment of Mr. John Winthrop in claiming to be rightfully and lawfully the clerk your place.

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 The judges differed in opinion on the question disposition toward you personally, nor wishing of right and being unable to concur in opinion, to cast the slightest shade of censure on your neither of the said parties was admitted to act official conduct.

as clerk, or recognized by the court as being the “On the contrary, whether it will afford you rightful clerk, and no business was or could be any gratification to be thus assured or not, I transacted, and the court adjourned. avail myself of the occasion to declare to you The petitioner further represents that he is that my most ardent wishes respecting you are advised and verily believes that he was legally for your entire success and prosperity in life. and in due form appointed the clerk of the said I consider it due to myself to have made this District Court, and by virtue thereof became declaration; and a sense of justice to you de- lawfully the clerk of the said Circuit Court; mands that I should do what lies in my power and he has never resigned the said office, or to repel any unfavorable inference that might been legally removed from the same, and he is be drawn from your dismissal from the office of rightfully entitled to hold and exercise the clerk, in regard to the manner in which the same, and to receive the fees and emoluments to duties of the office have been discharged by the same belonging; and that he is illegally you. On this subject, the situation in which I kept out of the said office of clerk of the said have been placed during the last two years and District Court, and prevented from performing upwards, has afforded me the means of speaking the duties thereof, and from receiving the fees advisedly; and I am happy in being able to tes. and emoluments attached to the same, by the tify, as I now do unreservedly, that the business illegal acts and conduct of the said Philip K. of your office, during that period, has been Lawrence, judge as aforesaid, and of the said conducted methodically, promptly, skillfully, John Winthrop, claiming to hold the said oflice and uprightly. “In appointing Mr. Winthrop to succeed you, vised and believes, illegal and void appoint

by some pretended, but, as the petitioner is ad. I have been purely actuated by a sense of duty, ment or commission, from said Judge Lawand feelings of kindness towards one whom I have long known, and between whom and myself the closest friendship has always sub

The petitioner further states that the judges sisted. I cannot but consider his claims to any of the said Circuit Court continue to differ in benefit in my power to confer, as of a para opinion as to the legal rights of the petitioner mount character; and as his capacity to fill and said John Winthrop to said officers, so that the office in question cannot be disputed, I feel no one does or can perform the duties of said that I am not exercising any unjust preference office of clerk of the Circuit Court aforesaid; in bestowing on him the appointment. I am, and that the suitors in this court are thereby very respectfully, etc.

delayed, and the administration of justice there.

“P. K. Lawrence, in wholly suspended, and the appellate jurisdic. "United States Judge, District of Louisiana. tion of the Supreme Court of the United States "To D. N. Hennen, Esq.”

over the judgments and decrees of said Circuit The petitioner proceeded to state that on the Court is wholly suspended, and incapable of 18th day of May, 1838, Judge Lawrence execut-being exercised.


All these evils are stated to be remediless in the clerk of the District Court, and consequentthe ordinary proceedings before the District ly, by virtue of the acts of Congress, was also and Circuit Court, and can only be terminated the clerk of the Circuit Court; that the district by the interposition of this court, by its extra judge, however, adhered to his opinion that ordinary process of mandamus. The petitioner Winthrop was lawfully appointed by him, and therefore prays that a writ of mandamus may the court being thus divided, neither of the be awarded to be directed to the Honorable claimants could be recognized as clerk; and Philip K. Lawrence, Judge of the said District that the whole business of the Circuit Court Court of the United States for the Eastern Dis was therefore continued over, and that no proctrict of Louisiana, commanding him that he ess could now issue from the court until this forthwith restore the petitioner to his office of controversy should be settled. clerk of said District Court of the United States Upon this evidence, the rule to show cause for the Eastern District of Louisiana, or for a was granted, returnable *to the Supreme (*2 2 9 rule on the district judge, to show cause why Court on Saturday, the 26th of January, with such a writ of mandamus shall not be awarded. leave to the district judge to move to discharge

Mr. Chief Justice Taney, then holding the the rule, even before the return day above menAugust Term of the Supreme Court, ordered tioned. that a rule of Philip K. Lawrence, District A motion was now made to discharge the Judge as aforesaid, should be awarded, requir. rule upon the ground that the judge of the 228*] ing him to show cause, *at the follow. Fourth Circuit, sitting alone at the August ing January Term of the Supreme Court, why | Term, had not the power to lay the rule. The a mandamus should not be awarded to the dis- court stopped the counsel in support of the trict judge, as prayed for; with leave to any motion, and the Chief Justice said: The court party interested in the premises to move for å do not desire an argument on the subject. discharge thereof on or before the return day, When I granted the rule, I stated that I strongthe second Saturday of the term. Notice of ly inclined to the opinion that I had no power this rule was required to be served on the dis- to lay such a rule, in any case, at the August trict judge, and on John Winthrop, Esq. Term, and it is due to the counsel for the rela.

Before the return of the rule Mr. Gilpin, of tor to say that he acknowledged his own doubts counsel for John Winthrop, Esq. moved the when he brought the subject before the court. court to discharge the rule granted by Mr. Chief But as the question was an important one, and Justice Taney, at the August Term of the court, might again occur, I thought it proper that it on the ground that the court held at that time should be settled by the judgment of the court had not authority to make such a rule. He at its regular session, and not by a single judge. stated the readiness of Mr. Winthrop to meet I therefore laid the rule, because it was the only the question raised by the proceedings, and mode in which I could bring the subject before proposed that there should be substituted a the court for decision. We have conferred torule, to be now granted by the court, of the gether since we assembled for the present sessame tenor with that made at the August sion, and we are unanimously of opinion that Term; and that the same should be returnable such a rule cannot be laid at the August Term; on the second Saturday of this term.

that the Act of 1802, ch. 31, 2 Story's Laws U. This proposition was accepted by the counsel S. page 854, gives the power to the judge of of the relator, and approved by the court. the Fourth Circuit, at that term, “to make all

necessary orders touching any suit, action, apMr. Chief Justice Taney delivered the fol peal, writ of error, process, pleadings, or prolowing opinion, on the motion of Mr. Gilpin: ceedings, returned to the said court, or depend

At the August Term of the Supreme Court, ing therein;" but that a rule to show cause held by the Chief Justice or Judge for the why mandamus sould not issue does not fall Fourth Circuit, according to the Act of Con within the description of cases enumerated in gress of 1802, a motion was made for a rule on the act of Congress; and that the judge of the the judge of the District Court of the United Fourth Circuit, when sitting at the August States for the Eastern District of Louisiana, to Term, has not, therefore, the power to grant show cause why a mandamus should not issue, such a rule in any case. commanding the said judge to restore Duncan The rule to show cause must therefore be N. Hennen to the office of clerk of the said discharged. District Court.

It appeared from the depositions and other evidence laid before the court at that term, that Duncan N. Hennen, the relator, who had been

*Ex-parte in the matter of DUN: [*230 for several years clerk of the District Court,

CAN N. HENNEN. 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

court-his tenure of office. relator was produced, stating that the removal had not been made on account of any miscon- Motion for a rule on the district Judge of the duct on his part, but merely from the desire of eastern district of Louisiana to show cause why a the judge to make provision for Winthrop, who restore Duncan N. Hennen to the office of the clerk was his personal friend, and well qualified for of the District Court. The petition states the apthe office. It also appeared, that at the meeting polotment of the relator to the oflice of clerk of the of the Circuit Court, which took place shortly formance of his duties as clerk of the court until afterwards, the presiding judge of the Circuit May, 1837; the acknowledgment of the fidelity and Court was of opinion that the removal was not capacity with which the duties of the office were authorized by law, and that Hennen was still and the appointment of another person to the of Ace, from personal motives, and the influence of ceeding in said cause; and the petitioner is person appointed to perform the duties of the of prevented from bringing the said cause up to

performed, stated in writing by the district judge, 138

Peters 13.

The petition also states the performance of this court for its final decision. the duties of clerk of the Circuit Court of the The petitioner further states that the judges Eastern District of Louisiana, under the appoint of the said Circuit Court continue to differ in ment as clerk of the District Court, and the offer to perform those duties after his asserted removal as opinion as to the legal rights of the petitioner clerk of the District Court ; and that the judges of and said John Winthrop to the offices of clerk the Circuit Court being divided in opinion as to his of the District and Circuit Courts, so that no right to exercise the office of clerk, the business of the Circuit Court was entirely suspended.

one does or can perform the duties of the office The appointment of clerks of courts properly be of clerk of the Circuit Court aforesaid; and longs to the courts of law, and a clerk of the court that the suitors in said court are thereby deslon in the Constitution, giving to Congress the layed, and the administration of justice therein power to vest the appointment of inferior officers wholly suspended; and the appellate jurisdicas they think proper. The appointing power designated by the Constitution, in the latter part of

tion of the Supreme Court of the United States the second section of the second article of the Con- orer the judgments and decrees of said Circuit stitution, was no doubt intended to be exercised by Court wholly suspended, and inca pable of bethe department of the government to which the of

ing exercised. icer to be appointed most appropriately belonged.

It cannot be admitted that it was the intention of “All which evils are remediless at and by the Constitution that those officers which are de- the ordinary proceeding before the said district nominated inferior officers should be held during

or circuit courts, and can only be terminated life. In the absence of all constitutional or statutory provision as to the removal of such officers, it and redressed by the interposition of this honwould seem to be a sound and necessary, rule to orable court, by its extraordinary process of consider the power of removal as incident to the mandamus.' power of appointment.

The tenure of ancient common law officers, and The petition prays that the court, after conthe rules and principles by which they are govo sideration, will award a writ of mandamus to erned, have no application to the office of the clerk be directed to the Honorable Philip K. Law. of a District Court of the United States. ure, in those cases, depends in a great measure up

rence, Judge of the District Court of the Uniton ancient usage. But in the United States there is ed States for the Eastern District of Louisiana, no ancient usage which can apply to and govern the commanding him forthwith to restore the pe laws: they are of recent origin, and must depend titioner to his office of clerk of the District entirely on a just construction of our Constitution Court of the United States for the Eastern and laws: and the like doctrine is held in England, District of Louisiana. where the office is not an ancient common law office, but of modern origin, under some act of Parlla. By an agreement between the counsel for ment. In such a case, the tenure of the office is the relator and the judge of the District Court determined by the meaning and intention of the of Louisiana, the questions presented to the statute.

The law giving the district courts the power of court on the petition were argued; the usual appointing their own clerks, does not prescribe any notice being dispensed with. form in which this shall be done. The power vest- The motion for a mandamus was argued by ed in the court is a continuing power, and the mere appointment of a successor would, per se, be a re

Mr. Coxe and Mr. Southard for the relator, and moval of the prior incumbent, so far at least as by Mr. Gilpin and Mr. Jones for the district bis rights were concerned.

judge of Louisiana. The Supreme Court can bave no control over the appointment or removal of a clerk of the District Mr. Coxe, with whom was Mr. Southard: Court, or entertain any inquiry into the grounds The case which it is proposed to submit to the of the removal. It the judge is chargeable with consideration of the court is one equally novel any abuse of his power, the Supreme Court is not the tribunal to which he is answerable.

and interesting. The principles which it in. volves are alike important to the parties on the record and to the public.

It is a case of the first impression; for aled at the August Term of the court held though on a cursory and superficial examination by Mr. Chief Justice Taney should be dis. it may be thought to bear an analogy to others ebarged, the counsel presented another petition which have been heretofore and elsewhere disto the court, setting forth the same facts as cussed and disposed of, a more careful exami. those stated in the petition, the matters of nation will make it perfectly apparent that it is which are set forth in the report of the pre- now for the first time, in its naked simplicity, ceding case, with others.

presented *for investigation and deci. [*232 The additional facts stated in the petition sion. At all events, it is, beyond all doubt, now were that the petitioner is in the full and undis for the first time exhibited as the subject of puted possession of the seal of the Circuit Court judicial consideration. for the Eastern District of Louisiana, and of The record presents a plain and unembarthe records of the said Circuit Court.

rassed case. In 1834 Mr. Hennen, the relator, 231'] *That there is now pending in said Cir- was duly appointed to the office of clerk of the cuit Court a cause in which the petitioner, a District Court for the Eastern District of Loucitizen of the State of Louisiana, is the plain. isiana. He accepted the appointment, took the tiff, and Rezin D. Shepherd, a citizen of Mary- oath of office prescribed by law, and gave a land, is the defendant; that the value of the bond with sureties approved by the judge, conproperty in controversy between petitioner and formably to the provisions of the act of Con. said Shepherd, exceeds in amount the sum of gress. Of all these facts the record contains six thousand dollars in cash. That in conse. the most abundant evidence. quence of the disagreement between the judges He continued to hold this office and to per. of the Circuit Court, and the refusal of Judge form its duties “methodically, promptly, skill. Lawrence to allow the petitioner, the true and fully, and uprightly,” until the 18th of May, lawful clerk of said court, to perform the duties 1838, when he received from the Honorable thereof, the petitioner is prevented from pro- | Philip K. Lawrence, who then held the office

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