The principle that in actions at law, the laws of the states
shall be regarded as rules of decision in the courts of the United
States, § 721 Rev.Stat., and that the practice, pleadings, and
forms and modes of proceedings in such cases shall conform as near
as may be to those of the counts of the states in which the courts
sit, § 914, is applicable only where there is no rule on the same
subject prescribed by act of Congress, and where the state rule is
not in conflict with any such law.
The statute of New York which permits a party to a suit to be
examined by his adversary as a witness at any time previous to the
trial in an action at law is in conflict with the provision of the
Revised Statutes of the United States which enacts that "The mode
of proof in the trial of actions at common law shall be by oral
testimony and examination of witnesses in open court, except as
hereinafter provided." § 861.
None of the exceptions afterwards found in §§ 863, 866 and 867
provides for such examination of a party to the suit in advance of
the trial as the statute of New York permits.
Page 113 U. S. 714
The courts of the United States sitting in New York have no
power, therefore, to compel a party to submit to such an
examination and no power to punish him for a refusal to do so.
Nor can the United States court enforce such an order made by a
state court before the removal of the case into the circuit court
of the United States.
Where a person is in custody under an order of the circuit court
for contempt in refusing to answer under such an order, this Court
will release him by writ of habeas corpus on the ground that the
order of imprisonment was without the jurisdiction of that
This is an application on the part of Clinton B. Fisk for a writ
of habeas corpus to be directed to the Marshal of the Southern
District of New York, in whose custody the petitioner is held under
an order of the circuit court for that district.
The history of the case which resulted in this order, so far as
it is necessary to the decision of the matter before us, may be
briefly stated as follows:
Francis B. Fogg brought suit in the supreme court of the State
of New York against Fisk to recover the sum of $63,250 on the
allegation of false and fraudulent representations made by Fisk in
the sale of certain mining stocks.
In the progress of the suit and before the trial, the plaintiff
obtained from the court the following order:
"Ordered, that the defendant, Clinton B. Fisk, be examined and
his testimony and deposition taken as a party before trial,
pursuant to sections 870, 871, 872, 873, etc., of the Code of Civil
Procedure, and that for such purpose he personally be and attend
before the undersigned, a justice of this court at the chambers
thereof, to be held in the new county courthouse, in the said City
of New York, on the 31st day of January, 1883 at 11 o'clock in the
forenoon of that day."
A motion to vacate this order was overruled, and the judgment
finally affirmed by the Court of Appeals.
Thereupon the defendant appeared before the court and submitted
to a partial examination, answering some questions and objecting to
others, until, pending one of the adjournments of the examination,
he procured an order removing the case to the circuit court of the
In that court, an order was made to continue the examination
before a master, to whom the matter was referred. The defendant
Page 113 U. S. 715
refusing to be sworn and declining to be examined, he was
brought before the circuit court on an application for attachment
for a contempt in refusing to obey the order.
Without disposing of this motion, the circuit court made another
"It is hereby ordered and adjudged that the motion to punish the
said defendant for such contempt stand adjourned to the next motion
day of this court, to-wit, on the 28th day of March, 1884."
"It is further ordered that the defendant Clinton B. Fisk, be,
and he is hereby, directed and required to attend personally on the
14th day of March, 1884, before the Honorable Addison Brown, one of
the judges of this court at a stated term thereof at his chambers
in the post office building in said City of New York at eleven
o'clock in the forenoon of that day, then and there, and on such
other days as may be designated, to be examined and his testimony
and deposition taken, and continued as a party before trial,
pursuant to section 870 et seq.
of the Code of Civil
Procedure, and for the purposes mentioned in said order of January
12, 1883, and February 12, 1884, heretofore made in this
The defendant appeared before the court in pursuance of this
order and, stating that he was advised by counsel that the court
had no jurisdiction to require him to answer in this manner to the
questions propounded to him by the counsel for plaintiff, he
refused to do so. For this, on further proceeding, he was held by
the court to be in contempt and fined $500 and committed to the
custody of the marshal until it was paid. It is to be relieved of
this imprisonment that he prays here the writ of habeas corpus.
Page 113 U. S. 718
MR. JUSTICE MILLER delivered the opinion of the court. He stated
the facts as above recited and continued:
The jurisdiction of this Court is always challenged in cases of
this general character, and often successfully. There can be no
doubt of the proposition that the exercise of the power of
punishment for contempt of their orders by courts of general
jurisdiction is not subject to review by writ of error or appeal to
this Court. Nor is there in the system of federal jurisprudence any
relief against such order, when the court has authority to make
them except through the court's making the order, or possibly by
the exercise of the pardoning power.
This principle has been uniformly held to be necessary to the
protection of the court from insults and oppressions while in the
ordinary exercise of its duties and to enable it to enforce its
judgments and orders necessary to the due administration of law and
the protection of the rights of suitors.
When, however, a court of the United States undertakes by its
process of contempt to punish a man for refusing to comply with an
order which that court had no authority to make, the order itself,
being without jurisdiction, is void, and the order punishing for
the contempt is equally void. It is well settled now in the
jurisprudence of this Court that when the proceeding for contempt
in such a case results in imprisonment, this Court will, by its
writ of habeas corpus, discharge the prisoner. It follows
necessarily that on a suggestion by the prisoner that, for the
reason mentioned, the order under which he is held is void, this
Court will, in the language of the statute, make "inquiry into the
cause of the restraint of liberty." § 752 Rev.Stat.
That the case as made by the petitioner comes, for the purposes
of this inquiry, within the jurisdiction of this Court under the
principles above mentioned is established by the analogous
Page 113 U. S. 719
cases. Ex Parte Rowland, 104 U.
; Ex Parte
18 Wall. 163.
But did the court transcend its jurisdiction in fining the
petitioner for contempt? Or rather, did it have the power to make
the order requiring him to submit to the preliminary examination?
For if it had that power, it clearly could enforce obedience to the
order by fine and imprisonment if necessary. The record of the
entire proceeding in this branch of the case, both in the state
court and the circuit court, is before us, and we are thus enabled
to form an intelligent opinion on the question presented.
The power of the court to continue the examination of the
defendant after the removal of the case into the court of the
United States is asserted on two grounds:
1. That the order for his examination, having been made by the
supreme court of New York under its rightful jurisdiction while the
case was pending in it, is still a valid order, partially executed,
which accompanies the case into the circuit court, and that in that
court it cannot be reconsidered, but must be enforced.
2. That if this be not a sound proposition, the circuit court
made an independent order of its own for the examination of the
defendant, which order is justified by the principle that the Code
of Civil Procedure of New York, under which both orders were made,
is a part of the law governing the courts of the United States
sitting within that state.
We will inquire into the latter proposition first, for the
points to be considered in it lie at the foundation of the other
The general doctrine that remedies whose foundations are
statutes of the state are binding upon the courts of the United
States within its limits is undoubted. This well known rule of the
federal courts, founded on the Act of 1789, 1 Stat. 92, Rev.Stat. §
721, that the laws of the several states, except when the
Constitution, treaties, or statutes of the United States otherwise
require or provide, shall be regarded as rules of decision in
trials at common law, was enlarged in 1872 by the provision found
in § 914 of the Revision. This enacts that
"The practice, pleadings, and forms and modes of proceeding in
Page 113 U. S. 720
cases other than equity and admiralty causes in the circuit and
district courts shall conform as near as may be to the practice,
pleadings, and forms and modes of proceeding existing at the time
in like causes in the courts of record of the state within which
such circuit or district courts are held, anything in the rules of
courts to the contrary notwithstanding."
In addition to this, it has been often decided in this Court
that in actions at law in the courts of the United States, the
rules of evidence and the law of evidence generally of the states
prevail in those courts.
The matter in question here occurred in the court below in
regard to a common law action. It was in regard to a method of
procuring and using evidence, and it was a proceeding in a civil
cause other than equity or admiralty.
We entertain no doubt of the decision of the Court of Appeals of
New York that it was a proceeding authorized by the statutes of New
York, under which, in a New York court, defendant was bound to
The case, as thus stated, is a strong one for the enforcement of
this law in the courts of the United States. Ex Parte
Boyd, 105 U. S. 647
But the act of 1789, which made the laws of the states rules of
decision, made an exception when it was "otherwise provided by the
Constitution, treaties, or statutes of the United States."
The act of 1872 evidently contemplates the same exception by
requiring the courts to conform to state practice as near as may
be. No doubt it would be implied, as to any act of Congress
adopting state practice in general terms, that it should not be
inconsistent with any express statute of the United States on the
There are numerous acts of Congress prescribing modes of
procedure in the circuit and district courts of the United States
at variance with laws of the states in which the courts are held.
Among these are the modes of impaneling jurors, their
qualifications, the number of challenges allowed to each party. Two
chapters of the Revised Statutes, XVII and XVIII,, embracing §§ 858
to 1042, inclusive, are devoted to the subjects of evidence and
Page 113 U. S. 721
The case before us is eminently one of evidence and procedure.
The object of the orders is to procure evidence to be used on the
trial of the case, and this object is effected by a proceeding
peculiar to the courts of New York, resting alone on a statute of
that state. There can be no doubt that if the proceeding here
authorized is in conflict with any law of the United States, it is
of no force in the courts of the United States. We think it may be
added further, in the same direction, that if Congress has
legislated on this subject and prescribed a definite rule for the
government of its own courts, it is to that extent exclusive of any
legislation of the states in the same matter.
A striking illustration of this effect of an act of Congress in
prescribing rules of evidence is to be found in § 858 of the
Revised Statutes, originally enacted in an appropriation bill in
1864, and the amendment to it passed in 1865.
It now reads:
"In the courts of the United States, no witness shall be
excluded in any action on account of color, or in any civil action
because he is a party to or interested in the issue tried,
that in actions by or against executors,
administrators, or guardians in which judgment may be rendered for
or against them, neither party shall be allowed to testify against
the other as to any transaction with or statement by the testator,
intestate, or ward unless called to testify thereto by the opposite
party or required to testify thereto by the court."
This act of Congress, when passed, made competent witnesses in
the courts of the United States many millions of colored persons
who were not competent by the laws of the states in which they
lived, and probably as many more persons, as parties to suits or
interested in the issues to be tried, who were excluded by the laws
of the states. It has never been doubted that this statute is valid
in all the courts of the United States not only as to the
introduction of persons of color and parties to suits, but, in the
qualification made by the proviso where its language differs from
provisions somewhat similar in state statutes, the act of Congress,
critically construed, has always been held to govern the court.
Page 113 U. S. 722
Jacobus, 109 U. S. 275
Potter v. Bank, 102 U. S. 163
Page v. Burnstine, 102 U. S. 664
King v. Worthington, 104 U. S. 44
Coming to consider whether Congress has enacted any laws bearing
on the question before us, we find the following sections of the
Revised Statutes, in chapter XVII, on evidence, which we here quote
"SEC. 861. The mode of proof, in the trial of actions at common
law, shall be by oral testimony and examination of witnesses in
open court, except as hereinafter provided."
"SEC. 863. The testimony of any witness may be taken in any
civil cause, pending in a district or circuit court, by deposition
de bene esse
when the witness lives 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 the district in which the case is to be tried, and to a greater
distance than one hundred miles from the place of trial, before the
time of trial, or when he is ancient or infirm."
The remainder of this section and §§ 864 and 865 are directory
as to the officer before whom the deposition may be taken, the
notice to the opposite party, and the manner of taking, testifying,
and returning the deposition to the court.
"SEC. 866. In any case where it is necessary, in order to
prevent a failure or delay of justice, any of the courts of the
United States may grant a dedimus potestatum
depositions according to common usage, and any circuit court, upon
application to it as a court of equity, may, according to the
usages of chancery, direct depositions to be take in perpetuam
if they relate to any matter that may be
cognizable in any court of the United States."
Section 867 authorizes the courts of the United States, in their
discretion and according to the practice in the state courts, to
admit evidence so taken, and §§ 868, 869, and 870 prescribe the
manner of taking such depositions, and of the use of the subpoena
and how it may be obtained. No one can
examine these provisions for procuring testimony to be used in the
courts of the United States and have any reasonable doubt that, so
far as they apply, they were intended
Page 113 U. S. 723
to provide a system to govern the practice in that respect in
those courts. They are, in the first place, too complete, too
far-reaching, and too minute to admit of any other conclusion. But
we have not only this inference from the character of the
legislation, but it is enforced by the express language of the law
in providing a defined mode of proof in those courts, and in
specifying the only exceptions to that mode which shall be
This mode is "by oral testimony and examination of witnesses in
open court, except as hereinafter provided."
Of course, the mode of producing testimony under the New York
Code which was applied to petitioner is not oral testimony and
examination of a witness in open court within the meaning of this
act of Congress. This obviously means the production of the witness
before the court at the time of the trial and his oral examination
then, and it does not mean proof by reading depositions, though
those depositions may have been taken before a judge of the court,
or even in open court at some other time than during the trial.
They would not in such case be oral testimony. The exceptions to
this section, which all relate to depositions, also show that proof
by deposition cannot be within the rule, but belongs exclusively to
We come now to inquire if the testimony sought to be obtained
from petitioner by this mode comes within the exception referred to
in § 861. These exceptions relate to cases where it is admissible
to take depositions de bene esse
under § 863 or in
perpetuam rei memoriam
and under a dedimus potestatum
under § 866.
In the first of these, the circumstances which authorize
depositions to be taken in advance for use on the trial are
mentioned with great particularity. They all have relation to
conditions of the witness; to residence more than a hundred miles
from the court, or bound on a sea voyage, or as going out of the
United States or out of the district, or more than a hundred miles
from the place of trial before the time of trial, or an ancient or
None of these things is suggested in regard to petitioner,
Page 113 U. S. 724
nor were they thought of as a foundation of the order of the
state court or of the circuit court. The statute of New York, under
which both courts acted, makes no such requirements as a condition
to the examination of the party. It is a right which, if the judge
may possibly refuse to grant, he is in that matter governed by none
of the conditions on which the deposition may be taken under the
act of Congress.
Nor does the case come within the principle or profess to be
grounded on the power conferred by § 866, which is another
exception to the rule established by § 861. It is not according to
common usage to call a party in advance of the trial at law and
subject him to all the skill of opposing counsel to extract
something which he may then use or not, as it suits his purpose.
This is a very special usage, dependent wholly upon the New York
Nor is it in any manner made to appear that this examination
"was necessary in order to prevent a delay or failure of justice in
any of the courts of the United States," nor is any such
proposition the foundation of the court's action.
These are the exceptions which the statute provides to its
positive rule that the mode of trial in actions at law shall be by
oral testimony and examination of witnesses in open court. They are
the only exceptions thereinafter provided. Does the rule admit of
others? Can its language be so construed?
On the contrary, its purpose is clear to provide a mode of proof
in trials at law to the exclusion of all other modes of proof, and
because the rigidity of the rule may, in some cases, work a
hardship, it makes exceptions of such cases as it recognizes to be
entitled to another rule, and it provides that rule for those
cases. Under one or the other all cases must come. Every action at
law in a court of the United States must be governed by the rule or
by the exceptions which the statute provides. There is no place for
exceptions made by state statutes. The court is not at liberty to
adopt them or to require a party to conform to them. It has no
power to subject a party to such an examination as this. Not only
is no such power conferred, but it is prohibited by the plain
language and the equally plain purpose of the acts of Congress, and
Page 113 U. S. 725
the chapter on Evidence of the Revision. The New York statute
would, if in force, repeal or supersede the act of Congress.
It does not require much deliberation to see that if the acts of
Congress forbid the use of this kind of testimony in the courts of
the United States, no order for taking it made in the state court
while the case was pending in that court, with a view to its use on
a trial there, can change the law of evidence in the federal court.
Without deciding now, for the question is not before us, whether
the testimony actually given under that order and transmitted with
the record of the case to the circuit court can be used when the
trial takes place, we are well satisfied that the latter court
cannot enforce the unexecuted order of the state court to procure
evidence which, by the act of Congress, is forbidden to be
introduced on the trial, if it should be so taken.
The provision of § 4 of the Act of March 3, 1875, 18 Stat. 470,
declares orders of the state court, in a case afterwards removed,
to be in force until dissolved or modified by the circuit court.
This fully recognizes the power of the latter court over such
orders. And it was not intended to enact that an order made in the
state court, which affected or might affect the mode of trial yet
to be had, could change or modify the express directions of an act
of Congress on that subject.
Nor does the language of the court in Duncan v. Gegan,
101 U. S. 810
so far. When it is there said that "the circuit court has no more
power over what was done before the removal than the state court
would have had if the suit had remained," it is in effect affirmed
that it has at least that much power. There can be no doubt that on
a proper showing before the state court, it could have discharged
the order for this examination, or suspended its further execution.
In acting on such a motion as this, it would have been governed by
the laws of the State of New York. In deciding whether it would
continue the execution of this order or decline to execute it
further, the circuit court was governed by the federal law. If the
law governing the circuit court gave it no power to make or
continue this examination, but in fact forbid it, then it could not
enforce the order.
Page 113 U. S. 726
The petitioner, having removed his case into the circuit court,
has a right to have its further progress governed by the law of the
latter court, and not by that of the court from which it was
removed, and if one of the advantages of this removal was an escape
from this examination, he has a right to that benefit if his case
was rightfully removed.
This precise point is decided, and in regard to this very
question of the differing rules of evidence prevailing in the state
and federal courts, in King v. Worthington, 104 U. S.
In that case, after it had been once heard on appeal in the
Supreme Court of Illinois, it was removed into the circuit court of
the United States.
The supreme court had reversed the judgment of the inferior
court because, among other things, the evidence of witnesses had
been received whom that court held to be incompetent.
On the trial in the circuit court, they were held to be
competent and admitted to testify, notwithstanding the decision of
the supreme court of the state, on the ground that § 858 of the
Revised Statutes of the United States, already copied in this
opinion, made them competent, and although it differed in that
respect from the statute of Illinois on the same subject, it must
prevail in the circuit court.
It was strongly urged here that this was error, and as to that
case the decision of the Illinois court, made while it was
rightfully before it, should control. But this Court held
otherwise, and said:
"The federal court was bound to deal with the case according to
the rules of practice and evidence prescribed by the acts of
Congress. If the case is properly removed, the party removing it is
entitled to any advantage which the practice and jurisprudence of
the federal courts give him."
The circuit court was therefore without authority to make the
orders for the examination of petitioner in this case, and equally
without authority to enforce these orders by process for contempt.
Its order fining him for contempt and committing him to the custody
of the marshal was without jurisdiction and void, and the prisoner
is entitled to his release.
Page 113 U. S. 727
It is supposed that the announcement of the judgment of the
court that he is entitled to the writ will render its issue
unnecessary. If it shall prove otherwise,
The writ will be issued on application to the