Opinion of the Court. of sec. 1039, or a repeal pro tanto of the requirement that indictments shall be remitted to the Circuit Court for trial. A District Court could not be said to have "exclusive original jurisdiction" of a case which it was obliged to remit to another court for trial. 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. The idea that this cannot be done seems to have arisen from a misinterpretation of a ruling in the case of Sir John Fenwick, 13 Howell's State Trials, 537, 579 et seq., which was a proceeding in Parliament in 1696 by bill of attainder upon a charge of high treason. It appeared that Lady Fenwick had spirited away a material witness, who had sworn against one Cook on his trial for the same treason. His testimony having been ruled out, obviously because it was not the case of a deceased witness, nor one where there had been an opportunity for cross-examination on a former trial between the same parties, the case is nevertheless cited by Peake in his work on Evidence (p. 90) as authority for the proposition that the testimony of a deceased witness cannot be used in a criminal prosecution. The rule in England, however, is clearly the other way. Buller's N. P. 242; King v. Jolliffe, 4 T. R. 285, 290; King v. Radbourne, 1 Leach Cr. Law, 457; Rex v. Smith, Opinion of the Court. As to the 2 Starkie, 208; Buckworth's case, T. Raym. 170. practice in this country, we know of none of the States in which such testimony is now held to be inadmissible. In the cases of Finn v. Commonwealth, 5 Rand. (Va.) 701; Mendum v. Commonwealth, 6 Rand. (Va.) 704; and Brogy v. Commonwealth, 10 Grattan, 722, the witnesses who had testified on the former trial were not dead, but were out of the State, and the testimony was held by the Court of Appeals of Virginia to be inadmissible, though the argument of the court indicated that the result would have been the same if they had been dead. In the case of State v. Atkins, 1 Overton, 229, the former testimony of a witness since deceased was rejected by the Supreme Court of Tennessee, but this case was subsequently overruled in Kendrick v. State, 10 Humphrey, 479, and testimony of a deceased witness taken before a committing magistrate was held to be admissible. See also Johnston v. State, 2 Yerger, 58; Bostick v. State, 3 Humph. 344. The rule in California was formerly against the admission of such testimony; People v. Chung Ah Chue, 57 California, 567; People V. Qurise, 59 California, 343; but it is now admitted under a special provision of the code applicable to absent and deceased witnesses, which is held to be constitutional. People v. Oiler, 66 California, 101. In the case of State v. Campbell, 1 Rich. (S. C.) 124, the testimony of a deceased witness had been taken before a coroner, but in the absence of the accused, and of course it was held to be inadmissible: Upon the other hand, the authority in favor of the admissibility of such testimony, where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same. case, is overwhelming. The question was carefully considered in its constitutional aspect by the Supreme Judicial Court of Massachusetts in Commonwealth v. Richards, 18 Pick. 434, in which it was said that "that provision was made to exclude any evidence by deposition, which could be given orally in the presence of the accused, but was not intended to affect the question as to what was or was not competent evidence to be given face to face according to the settled VOL. CLVI-16 Opinion of the Court. rules of the common law." The subject was also treated at great length by Judge Drummond in United States v. Macomb, 5 McLean, 286, and the substance of a deceased witness's testimony given at a preliminary examination held to be admissible. All the cases up to that time were cited in the opinion, and the decision put upon the ground that, the right of crossexamination having once been exercised, it was no hardship upon the defendant to allow the testimony of the deceased witness to be read. From the following list of cases it will be seen that the same doctrine prevails in more than a dozen States. Summons v. State, 5 Ohio St. 325; Brown v. Commonwealth, 73 Penn. St. 321: in both of which cases the question was elaborately considered. State v. McO' Blenis, 24 Missouri, 402; State v. Baker, 24 Missouri, 437; State v. Houser, 26 Missouri, 431-a most learned discussion of the subject; State v. Able, 65 Missouri, 357; Owens v. State, 63 Mississippi, 450; Barnet v. People, 54 Illinois, 325; United States v. White, 5 Cranch C. C. 457; Robinson v. State, 68 Georgia, 833; State v. Wilson, 24 Kansas, 189; State v. Johnson, 12 Nevada, 121; Roberts v. State, 68 Alabama, 515; State v. Cook, 23 La. Ann. 347; Dunlap v. State, 9 Tex. App. 179; O'Brian v. Commonwealth, 6 Bush, 563; State v. Hooker, 17 Vermont, 658; Crary v. Sprague, 12 Wend. 41; United States v. Wood, 3 Wash. C. C. 440; State v. Valentine, 7 Iredell, (Law,) 225. While the precise question has never arisen in this court, we held in Reynolds v. United States, 98 U. S. 145, that if the witness is absent by the procurement or connivance of the defendant himself, he is in no condition to assert his constitutional immunity. 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 Opinion of the Court. 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 adoption 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 Opinion of the Court. 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. 4. Error is also assigned to the action of the court in refusing to permit the defendant to introduce the testimony of two witnesses, James and Violet, to impeach the testimony of Whitman, one of the deceased witnesses, by showing statements made by him contradicting his evidence upon the stand, upon the ground that the proper foundation had not been laid by interrogating Whitman himself as to his having made such contradictory statements. In this connection the defendant proposed to prove by the witness James that Whitman told him in November, 1892, that he did not see Mattox on the night he did the shooting, |