MATTOX v. UNITED STATES. 156 United States, 237. 1895. [THIS is an appeal from a conviction in the District Court of the United States for the District of Kansas for murder alleged to have į been committed within the Indian Territory. Questions of jurisdiction were raised and considered which are not here material. But it appears that during the trial a transcript of the evidence given in favor of the prosecution on a former trial of the same cause by witnesses since deceased, was admitted in evidence against the objection that the right of the accused by the Sixth Amendment to be confronted with the witnesses against him was violated. this point the decision is as follows.] MR. JUSTICE BROWN delivered the opinion of the court. On 3. Upon the trial it was shown by the government that two of its witnesses on the former trial, namely, Thomas Whitman and George Thornton, had since died, whereupon a transcribed copy of the reporter's stenographic notes of their testimony upon such trial, supported by his testimony that it was correct, was admitted to be read in evidence, and constituted the strongest proof against the accused. Both these witnesses were present and were fully examined and cross-examined on the former trial. It is claimed, however, that the constitutional provision that the accused shall "be confronted with the witnesses against him" was infringed, by permitting the testimony of witnesses sworn upon the former trial to be read against him. No question is made that this may not be done in a civil case, but it is insisted that the reasons of convenience and necessity which excuse a departure from the ordinary course of procedure in civil cases cannot override the constitutional provision in question. [Many decisions on the question in the courts of England and of the United States are referred to, and it is indicated that there is a conflict in the authorities.] The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. There is doubtless reason for saying that the accused should never lose the benefit of any of these safeguards even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused. - We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adop tion of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant. For instance, there could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations. They are rarely made in the presence of the accused; they are made without any opportunity for examination or cross-examination; nor is the witness brought face to face with the jury; yet from time immemorial they have been treated as competent testimony, and no one would have the hardihood at this day to question their admissibility. They are admitted not in conformity with any general rule regarding the admission of testimony, but as an exception to such rules, simply from the necessities of the case, and to prevent a manifest failure of justice. As was said by the Chief Justice when this case was here upon the first writ of error (146 U. S. 140, 152), the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of an oath. If such declarations are admitted, because made by a person then dead, under circumstances which give his statements the same weight as if made under oath, there is equal if not greater reason for admitting testimony of his statements which were made under oath. The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of, and many of the very cases which hold testimony such as this to be admissible also hold that not the substance of his testimony only, but the very words of the witness, shall be proven. We do not wish to be understood as expressing an opinion upon this point, but all the authorities hold that a copy of the stenographic report of his entire former testimony, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of the deceased witness, such as was produced in this case, is competent evidence of what he said. [Other questions are considered. The judgment is affirmed.'] 1 MR. JUSTICE SHIRAS delivered a dissenting opinion in which MR. JUSTICE GRAY and MR. JUSTICE WHITE concurred. CHAPTER XVI. PROTECTION TO CONTRACTS AND PROPERTY. SECTION I. LAWS IMPAIRING THE OBLIGATION OF WOODRUFF v. TRAPNALL. 10 Howard, 190; 18 Curtis, 358. 1850. M'LEAN, J., delivered the opinion of the court. This case is before us on a writ of error to the Supreme Court of Arkansas. An action was brought by the State of Arkansas, in the Pulaski Circuit Court, against the plaintiff in error, and his sureties, Chester Ashley and others, upon his official bond as late treasurer of State, for the recovery of a certain sum of money alleged to have been received by him, as treasurer, between the 27th day of October, 1836, and the 26th day of December, 1838. And a judgment was recov ered against him and his securities, on the 13th of June, 1845, for $3,359.22 and costs. An execution having been issued on the judg ment, on the 24th of February, 1847, the plaintiff tendered to the defendant in error, who prosecuted the suit as attorney-general, the full amount of the judgment, interest, and costs, in the notes of the Bank of the State of Arkansas, which were refused. The above facts being stated in a petition to the Supreme Court of Arkansas on the 25th of February, 1847, an alternative mandamus was issued to Trapnall, the defendant in error, to receive the banknotes in satisfaction of the judgment, or show cause why he shall refuse to do so. On the return of the mandamus, the defendant admitted the judg ment and tender of the notes; but alleged that he was not authorized to receive them in satisfaction of the judgment, because the twentyeighth section of the bank charter, under which alone the plaintiff could claim a right so to satisfy the judgment, was repealed by an act of the legislature, approved January 10, 1845. It was agreed by the parties, that the record of the judgment should be made a part of the proceeding; that the defendant was the proper officer by law to receive satisfaction of the judgment; that the notes tendered were issued by the bank prior to the year 1840, and that down to the year 1845 the notes of the bank were received and paid out by the State, in discharge of all public dues; that the bank continues to exist with all its corporate functions.✔ The court were of opinion that the return of the defendant showed a sufficient cause for a refusal to obey the mandate of the writ, and gave judgment accordingly. The twenty-eighth section of the bank charter, which was repealed by the act of 1845, provided "that the bills and notes of said institution shall be received in all payments of debts due to the State of Arkansas." And the question raised for consideration and decision is, whether the repeal of this section brings the case within the Constitution of the United States, which prohibits a State from impairing the obligations of a contract. The entire stock of the bank is owned by the State. It furnishes the capital and receives the profits. And, in addition to the credit given to the notes of the bank by the capital provided, the State declares in the charter, they shall be received in all payments of debts due to it. Is this a contract? A contract is defined to be an agreement between competent persons, to do or not to do a certain thing. The undertaking on the part of the State is, to receive the notes of the bank in payment from its debtors. This comes within the definition of a contract. It is a contract founded upon a good and valuable consideration; a consideration beneficial to the State, as its profits are increased by sustaining the credit, and consequently extending the circulation, of the paper of the bank. With whom was this contract made? We answer, with the holders of the paper of the bank. The notes are made payable to bearer; consequently, every bona fide holder has a right, under the twentyeighth section, to pay to the State any debt he may owe it, in the i paper of the bank. It is a continuing guarantee by the State, that the notes shall be so received. Such a contract would be binding on an individual, and it is not less so on a State. That the State had the right to repeal the above section may be admitted. And the emissions of the bank subsequently are without the guarantee. But the notes in circulation at the time of the repeal are not affected by it. The holder may still claim the right, by the force of the contract, to discharge any debt he may owe to the State in the notes thus issued. It is argued that there could have been violated or impaired no contract with the plaintiff in error, as it does not appear he had the notes tendered by him in his possession at the time the twenty-eighth section was repealed. |