1. In a federal court, the wife of the defendant on trial for a
criminal offense is a competent witness in his behalf.
Page 290 U. S. 372
States, 219 U. S. 79
Jin Fuey Moy v. United States, 254 U.
, overruled on this point. Pp. 290 U. S. 373
290 U. S.
2. In the absence of a federal statute governing the subject,
the competency of witnesses in criminal trials in federal courts is
determined by the common law. P. 290 U. S.
3. In the taking of testimony in criminal cases, the federal
courts are not bound by the rules of the common law as they existed
at a specified time in the respective states; they are to apply
those rules as they have been modified by changed conditions. P.
290 U. S.
4. The reasons anciently assigned for disqualifying a wife as a
witness in behalf of her husband in criminal cases can no longer be
accepted in the federal courts in view of modern thought and
legislation touching the subject. P. 290 U. S.
5. The public policy of one generation may not, under changed
conditions, be the public policy of another. P. 290 U. S.
6. The federal courts have no power to amend or repeal a rule of
the common law; but they have the power, and it is their duty, in
the absence of any congressional legislation on the subject, to
disregard an old rule which is contrary to modern experience and
thought and is opposed in principle to the general current of
legislation and judicial opinion, and to declare and apply what is
the present rule in the light of the new conditions. Pp.
290 U. S.
7. The common law is not immutable, but flexible, and by its own
principles adapts itself to varying conditions. P. 290 U. S.
66 F.2d 70 reversed.
Certiorari to review the affirmance of a conviction upon an
indictment for conspiracy to violate the National Prohibition
Page 290 U. S. 373
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The sole inquiry to be made in this case is whether, in a
federal court the wife of the defendant on trial for a criminal
offense is a competent witness in his behalf. Her competency to
testify against him is not involved.
The petitioner was twice tried and convicted in a federal
District Court upon an indictment for conspiracy to violate the
prohibition law. His conviction on the first trial was reversed by
the Circuit Court of Appeals upon a ground not material here. 46
F.2d 417. Upon the second trial, as upon the first, defendant
called his wife to testify in his behalf. At both trials, she was
excluded upon the ground of incompetency. The Circuit Court of
Appeals sustained this ruling upon the first appeal, and also upon
the appeal which followed the second trial. 66 F.2d 70. We granted
certiorari limited to the question as to what law is applicable to
the determination of the competency of the wife of the petitioner
as a witness.
Both the petitioner and the government, in presenting the case
here, put their chief reliance on prior decisions of this Court.
The government relies on United States v.
12 How. 361; Logan v. United States,
144 U. S. 263
Hendrix v. United States, 219 U. S.
, and Jin Fuey
Page 290 U. S. 374
v. United States, 254 U. S. 189
Petitioner contends that these cases, if not directly contrary to
the decisions in Benson v. United States, 146 U.
, and Rosen v. United States,
245 U. S. 467
so in principle. We shall first briefly review these cases, with
the exception of the Hendrix
case and the Jin Fuey
case, which we leave for consideration until a later point
in this opinion.
In the Reid
case, two persons had been jointly indicted
for a murder committed upon the high seas. They were tried
separately, and it was held that one of them was not a competent
witness in behalf of the other, who was first tried. The trial was
had in Virginia, and, by a statute of that state passed in 1849, if
applicable in a federal court, the evidence would have been
competent. Section 34 of the Judiciary Act of 1789 declares that
the laws of the several states, except where the Constitution,
treaties, or statutes of the United States otherwise provide, shall
be regarded as rules of decision in trials at common law in the
courts of the United States in cases where they apply, but the
court said that this referred only to civil cases, and did not
apply in the trial of criminal offenses against the United States.
It was conceded that there was no act of Congress prescribing in
express words the rule by which the federal courts would be
governed in the admission of testimony in criminal cases. "But,"
the court said (p, 53 U. S.
"we think it may be found with sufficient certainty, not indeed
in direct terms, but by necessary implication, in the acts of 1789
and 1790, establishing the courts of the United States, and
providing for the punishment of certain offences."
The court pointed out that the Judiciary Act regulated certain
proceedings to be had prior to impaneling the jury, but contained
no express provision concerning the mode of conducting the trial
after the jury was sworn and prescribed no rule in respect of the
testimony to be taken. Obviously, however, it was said, some
Page 290 U. S. 375
established rule upon the subject was necessary to enable the
courts to administer the criminal jurisprudence of the United
States, and Congress must have intended to refer them to some known
and established rule
"which was supposed to be so familiar and well understood in the
trial by jury that legislation upon the subject would be deemed
superfluous. This is necessarily to be implied from what these acts
of Congress omit, as well as from what they contain."
P. 53 U. S. 365
The court concluded that this could not be the common law as it
existed at the time of the emigration of the colonists or the rule
which then prevailed in England, and [therefore] the only known
rule which could be supposed to have been in the mind of Congress
was that which was in force in the respective states when the
federal courts were established by the Judiciary Act of 1789.
Applying this rule, it was decided that the witness was
In the Logan
case, it was held that the competency of a
witness to testify in a federal court sitting in one state was not
affected by his conviction and sentence for felony in another
state, and that the competency of another witness was not affected
by his conviction of felony in a Texas state court, where the
witness had since been pardoned. The indictment was for an offense
committed in Texas and there tried. The decision was based, not
upon any statute of the United States, but upon the ground that the
"is governed by the common law, which, as has been seen, was the
law of Texas . . . at the time of the admission of Texas into the
Union as a state."
P. 144 U. S.
We next consider the two cases upon which petitioner relies. In
case, two persons were jointly indicted for
murder. On motion of the government, there was a severance, and
Benson was first tried. His codefendant was called as a witness on
behalf of the government. The Reid
case had been cited as
Page 290 U. S. 376
of the question. But the court, after pointing out what it
conceived to be distinguishing features in that case, said (p.
146 U. S.
): "We do not feel ourselves therefore precluded by
that case from examining this question in the light of general
authority and sound reason." The alleged incompetency of the
codefendant was rested upon two reasons -- first, that he was
interested, and, second, that he was a party to the record, the
basis for the exclusion at common law being fear of perjury. "Nor,"
the court said,
"were those named the only grounds of exclusion from the witness
stand. Conviction of crime, want of religious belief, and other
matters were held sufficient. Indeed, the theory of the common law
was to admit to the witness stand only those presumably honest,
appreciating the sanctity of an oath, unaffected as a party by the
result, and free from any of the temptations of interest. The
courts were afraid to trust the intelligence of jurors. But the
last 50 years have wrought a great change in these respects, and
today the tendency is to enlarge the domain of competency, and to
submit to the jury for their consideration as to the credibility of
the witness those matters which heretofore were ruled sufficient to
justify his exclusion. This change has been wrought partially by
legislation and partially by judicial construction."
Attention then is called to the fact that Congress, in 1864, had
enacted that no witness should be excluded from testifying in any
civil action, with certain exceptions, because he was a party to or
interested in the issue tried, and that, in 1878 (c. 37, 20 Stat.
30), Congress made the defendant in any criminal case a competent
witness at his own request. The opinion then continues (p.
146 U. S.
"Legislation of similar import prevails in most of the states.
The spirit of this legislation has controlled the decisions of the
courts, and steadily, one by one, the merely technical barriers
which excluded witnesses from the stand have been removed, till now
it is generally,
Page 290 U. S. 377
though perhaps not universally, true that no one is excluded
therefrom unless the lips of the originally adverse party are
closed by death, or unless some one of those peculiarly
confidential relations, like that of husband and wife, forbids the
breaking of silence."
". . . If interest and being party to the record do not exclude
a defendant on trial from the witness stand, upon what reasoning
can a codefendant, not on trial, be adjudged incompetent?"
That case was decided December 5, 1892. Twenty-five years later,
this Court had before it for consideration the case of Rosen v.
United States, supra.
Rosen had been tried and convicted in a
federal District Court for conspiracy. A person jointly indicted
with Rosen, who had been convicted upon his plea of guilty, was
called as a witness by the government and allowed to testify over
Rosen's objection. This Court sustained the competency of the
witness. After saying that, while the decision in the Reid
case had not been specifically overruled, its authority was
seriously shaken by the decisions in both the Logan
cases, the Court proceeded to dispose of the
question, as it had been disposed of in the Benson
"in the light of general authority and of sound reason."
"In the almost twenty [twenty-five] years," the Curt said,
"which have elapsed since the decision of the Benson
case, the disposition of courts and of legislative bodies to remove
disabilities from witnesses has continued, as that decision shows
it had been going forward before, under dominance of the conviction
of our time that the truth is more likely to be arrived at by
hearing the testimony of all persons of competent understanding who
may seem to have knowledge of the facts involved in a case, leaving
the credit and weight of such testimony to be determined by the
jury or by the court, rather than by rejecting witnesses as
Page 290 U. S. 378
the result that this principle has come to be widely, almost
universally, accepted in this country and in Great Britain."
"Since the decision in the Benson
case, we have
significant evidence of the trend of congressional opinion upon
this subject in the removal of the disability of witnesses
convicted of perjury, Rev. Stats. § 5392, by the enactment of the
federal Criminal Code in 1909 with this provision omitted and §
5392 repealed. This is significant because the disability to
testify of persons convicted of perjury survived in some
jurisdictions much longer than many of the other common law
disabilities, for the reason that the offense concerns directly the
giving of testimony in a court of justice, and conviction of it was
accepted as showing a greater disregard for the truth than it was
thought should be implied from a conviction of other crime."
"Satisfied as we are that the legislation and the very great
weight of judicial authority which have developed in support of
this modern rule, especially as applied to the competency of
witnesses convicted of crime, proceed upon sound principle, we
conclude that the dead hand of the common law rule of 1789 should
no longer be applied to such cases as we have here, and that the
ruling of the lower courts on this first claim of error should be
It is well to pause at this point to state a little more
concisely what was held in these cases. It will be noted, in the
first place, that the decision in the Reid
case was not
based upon any express statutory provision. The court found from
what the congressional legislation omitted to say, as well as from
what it actually said, that in establishing the federal courts in
1789, some definite rule in respect of the testimony to be taken in
criminal cases must have been in the mind of Congress, and the rule
which the court thought was in the mind of that body was that of
the common law as it existed in the thirteen original
Page 290 U. S. 379
states in 1789. The Logan
case in part rejected that
view, and held that the controlling rule was that of the common law
in force at the time of the admission of the state in which the
particular trial was had. Taking the two cases together, it is
plain enough that the ultimate doctrine announced is that, in the
taking of testimony in criminal cases, the federal courts are bound
by the rules of the common law as they existed at a definitely
specified time in the respective states, unless Congress has
With the conclusion that the controlling rule is that of the
common law, the Benson
case and the Rosen
not conflict, but both cases reject the notion, which the two
earlier ones seem to accept -- that the courts, in the face of
greatly changed conditions, are still chained to the ancient
formulae and are powerless to declare and enforce modifications
deemed to have been wrought in the common law itself by force of
these changed conditions. Thus, as we have seen, the court in the
case pointed to the tendency during the preceding
years to enlarge the domain of competency, significantly saying
that the changes had been wrought not only by legislation, but also
"partially by judicial construction," and that it was the spirit
(not the letter, be it observed) of this legislation which had
controlled the decisions of the courts and steadily removed the
merely technical barriers in respect of incompetency, until
generally no one was excluded from giving testimony except under
certain peculiar conditions which are set forth. It seems difficult
to escape the conclusion that the specific ground upon which the
court there rested its determination as to the competency of a
codefendant was that, since the defendant had been rendered
competent, the competency of the codefendant followed as a natural
This view of the matter is made more positive by the decision in
case. The question of the testimonial
Page 290 U. S. 380
competency of a person jointly indicted with the defendant was
disposed of, as the question had been in the Benson
"in the light of general authority and of sound reason." The
conclusion which the court reached was based not upon any definite
act of legislation, but upon the trend of congressional opinion and
of legislation (that is to say. of legislation generally), and upon
the great weight of judicial authority which, since the earlier
decisions, had developed in support of a more modern rule. In both
cases, the court necessarily proceeded upon the theory that the
resultant modification which these important considerations had
wrought in the rules of the old common law was within the power of
the courts to declare and make operative.
That the present case falls within the principles of the
cases, and especially of the
latter, we think does not reasonably admit of doubt.
The rules of the common law which disqualified as witnesses
persons having an interest long since, in the main, have been
abolished both in England and in this country, and what was once
regarded as a sufficient ground for excluding the testimony of such
persons altogether has come to be uniformly and more sensibly
regarded as affecting the credit of the witness only. Whatever was
the danger that an interested witness would not speak the truth --
and the danger never was as great as claimed -- its effect has been
minimized almost to the vanishing point by the test of
cross-examination, the increased intelligence of jurors, and
perhaps other circumstances. The modern rule which has removed the
disqualification from persons accused of crime gradually came into
force after the middle of the last century, and is today
universally accepted. The exclusion of the husband or wife is said
by this Court to be based upon his or her interest in the event.
Jin Fuey Moy v. United States, supra.
And whether by this
is meant a practical interest in the result of the prosecution
Page 290 U. S. 381
or merely a sentimental interest because of the marital
relationship makes little difference. In either case, a refusal to
permit the wife upon the ground of interest to testify in behalf of
her husband, while permitting him, who has the greater interest, to
testify for himself, presents a manifest incongruity.
Nor can the exclusion of the wife's testimony, in the face of
the broad and liberal extension of the rules in respect of the
competency of witnesses generally, be any longer justified, if it
ever was justified, on any ground of public policy. It has been
said that to admit such testimony is against public policy because
it would endanger the harmony and confidence of marital relations,
and, moreover, would subject the witness to the temptation to
commit perjury. Modern legislation, in making either spouse
competent to testify in behalf of the other in criminal cases, has
definitely rejected these notions, and, in the light of such
legislation and of modern thought, they seem to be altogether
fanciful. The public policy of one generation may not, under
changed conditions, be the public policy of another. Patton v.
United States, 281 U. S. 276
281 U. S.
The fundamental basis upon which all rules of evidence must rest
-- if they are to rest upon reason -- is their adaptation to the
successful development of the truth. And, since experience is of
all teachers the most dependable, and since experience also is a
continuous process, it follows that a rule of evidence at one time
thought necessary to the ascertainment of truth should yield to the
experience of a succeeding generation whenever that experience has
clearly demonstrated the fallacy or unwisdom of the old rule.
It may be said that the court should continue to enforce the old
rule, however contrary to modern experience and thought and however
opposed, in principle, to the general current of legislation and of
judicial opinion it may
Page 290 U. S. 382
have become, leaving to Congress the responsibility of changing
it. Of course, Congress has that power; but, if Congress fail to
act, as it has failed in respect of the matter now under review,
and the court be called upon to decide the question, is it not the
duty of the court, if it possess the power, to decide it in
accordance with present-day standards of wisdom and justice, rather
than in accordance with some outworn and antiquated rule of the
past? That this Court has the power to do so is necessarily
implicit in the opinions delivered in deciding the Benson
cases. And that implication, we think, rests
upon substantial ground. The rule of the common law which denies
the competency of one spouse to testify in behalf of the other in a
criminal prosecution has not been modified by congressional
legislation, nor has Congress directed the federal courts to follow
state law upon that subject, as it has in respect of some other
subjects. That this Court and the other federal courts, in this
situation and by right of their own powers, may decline to enforce
the ancient rule of the common law under conditions as they now
exist we think is not fairly open to doubt.
In Hurtado v. California, 110 U.
, 110 U. S. 530
this Court, after suggesting that it was better not to go too far
back into antiquity for the best securities of our liberties,
"It is more consonant to the true philosophy of our historical
legal institutions to say that the spirit of personal liberty and
individual right which they embodied was preserved and developed by
a progressive growth and wise adaptation to new circumstances and
situations of the forms and processes found fit to give, from time
to time, new expression and greater effect to modern ideas of
"This flexibility and capacity for growth and adaptation is the
peculiar boast and excellence of the common law. . . .
Page 290 U. S. 383
And as it was the characteristic principle of the common law to
draw its inspiration from every foundation of justice, we are not
to assume that the sources of its supply have been exhausted. On
the contrary, we should expect that the new and various experiences
of our own situation and system will mould and shape it into new
and not less useful forms."
Compare Holden v. Hardy, 169 U.
, 169 U. S.
To concede this capacity for growth and change in the common law
by drawing "its inspiration from every fountain of justice," and at
the same time to say that the courts of this country are forever
bound to perpetuate such of its rules as, by every reasonable test,
are found to be neither wise nor just, because we have once adopted
them as suited to our situation and institutions at a particular
time, is to deny to the common law in the place of its adoption a
"flexibility and capacity for growth and adaptation" which was "the
peculiar boast and excellence" of the system in the place of its
The final question to which we are thus brought is not that of
the power of the federal courts to amend or repeal any given rule
or principle of the common law, for they neither have nor claim
that power, but it is the question of the power of these courts, in
the complete absence of congressional legislation on the subject,
to declare and effectuate, upon common law principles, what is the
present rule upon a given subject in the light of fundamentally
altered conditions, without regard to what has previously been
declared and practiced. It has been said so often as to have become
axiomatic that the common law is not immutable, but flexible, and,
by its own principles, adapts itself to varying conditions. In
Ketelsen v. Stilz,
184 Ind. 702, 111 N.E. 423, the supreme
court of that state, after pointing out that the common law of
England was based upon usages, customs, and institutions of the
Page 290 U. S. 384
people as declared from time to time by the courts, said (p.
"The rules so deduced from this system, however, were
continually changing and expanding with the progress of society in
the application of this system to more diversified circumstances
and under more advanced periods. The common law, by its own
principles, adapted itself to varying conditions and modified its
own rules so as to serve the ends of justice as prompted by a
course of reasoning which was guided by these generally accepted
truths. One of its oldest maxims was that, where the reason of a
rule ceased, the rule also ceased, and it logically followed that,
when it occurred to the courts that a particular rule had never
been founded upon reason, and that no reason existed in support
thereof, that rule likewise ceased, and perhaps another sprang up
in its place which was based upon reason and justice as then
conceived. No rule of the common law could survive the reason on
which it was founded. It needed no statute to change it, but
That court then refers to the settled doctrine that an adoption
of the common law in general terms does not require, without regard
to local circumstances, an unqualified application of all its
rules; that the rules, as declared by the English courts at one
period or another, have been controlling in this country only so
far as they were suited to and in harmony with the genius, spirit,
and objects of American institutions, and that the rules of the
common law considered proper in the eighteenth century are not
necessarily so considered in the twentieth. "Since courts have had
an existence in America," that court said (p. 708), "they have
never hesitated to take upon themselves the responsibility of
saying what are the proper rules of the common law."
And the Virginia Supreme Court of Appeals, in Hanriot v.
82 Va. 1, 15, after pointing to the fact that
Page 290 U. S. 385
the common law of England is the law of that commonwealth except
so far as it has been altered by statute or so far as its
principles are inapplicable to the state of the country, and that
the rules of the common law had undergone modification in the
courts of England, notes with obvious approval that
"the rules of evidence have been in the courts of this country
undergoing such modification and changes, according to the
circumstances of the country and the manner and genius of the
The Supreme Court of Connecticut, in Beardsley v.
50 Conn. 529, 542, after quoting the maxim of the
common law, cessante ratione legis, cessat ipsa lex,
"This means that no law can survive the reasons on which it is
founded. It needs no statute to change it; it abrogates itself. If
the reasons on which a law rests are overborne by opposing reasons,
which in the progress of society gain a controlling force, the old
law, though still good as an abstract principle, and good in its
application to some circumstances, must cease to apply as a
controlling principle to the new circumstances."
The same thought is expressed in People v. Randolph,
Park.Cr.R. 174, 177:
"Its rules [the rules of the common law] are modified upon its
own principles, and not in violation of them. Those rules being
founded in reason, one of its oldest maxims is that, where the
reason of the rule ceases, the rule also ceases."
It was in virtue of this maxim of the common law that the
Supreme Court of Nevada, in Reno Smelting Works v.
20 Nev. 269, 21 P. 317, in a well reasoned opinion,
held that the common law doctrine of riparian rights was unsuited
to conditions prevailing in the arid land states and territories of
the West, and therefore was without force in Nevada, and that, in
respect of the use of water, the applicable rule was based upon the
doctrine of prior appropriation for a beneficial use.
Page 290 U. S. 386
In Illinois, it was held at an early day that the rule of the
common law which required an owner of cattle to keep them upon his
own land was not in force in that state, notwithstanding its
adoption of the common law of England, being unsuited to conditions
there in view of the extensive areas of land which had been left
open and unfenced and devoted to grazing purposes. Seeley v.
5 Gilman 130.
Numerous additional state decisions to the same effect might be
cited, but it seems unnecessary to pursue the matter at greater
It results from the foregoing that the decision of the court
below, in holding the wife incompetent, is erroneous. But that
decision was based primarily upon Hendrix v. United States
and Jin Fuey Moy v. United States, supra,
and, in fairness
to the lower court, it should be said that its decision was fully
supported by those cases.
In the Hendrix
case, the opinion does not discuss the
point; it simply recites the assignment of error to the effect that
the wife of Hendrix had not been allowed to testify in his behalf,
and dismisses the matter by the laconic statement, "The ruling was
not error." In the Jin Fuey Moy
case, it was conceded at
the bar that the wife was not a competent witness for all purposes,
but it was contended that her testimony was admissible in that
instance because she was offered not in behalf of her husband --
that is, not to prove his innocence -- but simply to contradict the
testimony of government witnesses who had testified to certain
matters as having transpired in her presence. The court held the
distinction to be without substance, as clearly it was, and
thereupon disposed of the question by saying that the rule which
excludes a wife from testifying for her husband is based upon her
interest in the event, and applies without regard to the kind of
testimony she might give. The point does not seem to have been
considered by the lower court to which the writ of error was
addressed (253 F. 213), nor, as plainly appears, was the real point
as it is here involved presented
Page 290 U. S. 387
in this Court. The matter was disposed of as one "hardly
requiring mention." Evidently the point most in the mind of the
court was the distinction relied upon, and not the basic rule which
was not contested. Both the Hendrix
and Jin Fuey
cases are out of harmony with the Rosen
cases and with the views which we have here
expressed. In respect of the question here under review, both are
MR. JUSTICE CARDOZO concurs in the result.
MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER are of opinion
that the judgment of the court below is right and should be