Certain German documents were offered in evidence by the
plaintiff in the District Court of Louisiana for the purpose of
using such parts of them as contained depositions which related to
the pedigree of the plaintiff, which were overruled by the district
court on the ground that they were not duly authenticated. By the
court: in the case of
Church v.
Hubbart, 2 Cranch 187, this Court held that the
certificate of a consul, under his consular seal, is not a
sufficient authentication of a foreign law to make it evidence, it
not being one of his consular functions to grant such certificates.
And also that the proceedings of a foreign court, under the seal of
a person who styles himself the Secretary of Foreign Affairs in
Portugal, is not evidence. On the principles of this case, the
circuit court very properly rejected the depositions offered. The
certificate and seal of the minister resident for Great Britain
from Hanover is not a proper authentication of the proceedings of a
foreign court or of the proceedings of an officer authorized to
take depositions. It is not connected in any way with the functions
of the minister. His certificate and seal could only authenticate
those acts which are appropriate to his office. The only mode in
which depositions can be taken in a foreign country is under a
commission.
No rule is better established than that a party cannot be a
witness in his own case.
The objection to the competency of a party to a suit as a
witness does not arise so much from the small pecuniary liability
to the payment of the costs as from that strong bias which every
party to a suit must naturally feel, and this influence is not the
less dangerous if the party be unconscious of its existence. Every
individual who prosecutes or defends a suit is, in the nature of
things, disposed to view most favorably his own side of the
controversy, and with no small prejudice the side of his adversary.
To admit a party on the record under any circumstances to be sworn
as a witness in chief would be attended with great danger. It would
lead to perjuries and the most injurious consequences in the
administration of justice.
From necessity, in cases of pedigree, hearsay evidence is
admissible. But this rule is limited to the members of the family,
who may be supposed to have known the relationship which existed in
the different branches. The declaration of these individuals, they
being dead, may be given in evidence to prove pedigree. And so is
reputation, which is the hearsay of those who may be supposed to
have known the fact, handed down from one to another; evidence. As
evidence of this description must vary with the circumstances of
each case, it is difficult if not impracticable to deduce from the
books any precise and definite rule on the subject.
It is not every statement or tradition in a family that can be
admitted as evidence. The tradition must be from persons having
such a connection with the party to whom it relates that it is
natural and likely, from their domestic habits and connections,
they are speaking the truth and that they could not be
mistaken.
The declarations offered as evidence were made subsequent to the
commencement of the controversy, and in fact after the suit was
commenced. It would be extremely dangerous to receive hearsay
declarations in evidence respecting any matter after the
controversy has commenced. This would enable a party by ingenious
contrivances to manufacture evidence to sustain his cause. It is
therefore essential, when declarations are offered as evidence,
that they should have been made before the controversy originated
and at a time and under circumstances when the person making them
could have no motive to misrepresent the facts.
It is a general rule that neither husband nor wife can be a
witness for or against each other. This rule is subject to some
exceptions, as when the husband commits an offense against the
person of his wife.
The husband and wife may be called as witnesses in the same
case, and if in their statement of facts they should contradict
each other, that would not destroy the competency of either. It
would not follow from such contradiction that either was guilty of
perjury. And in some cases the wife may be a witness under peculiar
circumstances where the husband may be interested in the question
and to some extent in the event of the cause.
Page 38 U. S. 210
The wife cannot be a witness to criminate her husband or to
state that which she has learned from him in their confidential
intercourse. The rule which protects the domestic relations from
exposure rests upon considerations connected with the peace of
families, and it is considered that this principle does not afford
protection to the husband and wife, while they are at liberty to
invoke it or not, at their discretion, when the question is
propounded; but it renders them incompetent to disclose facts in
evidence in violation of the rule. The husband's being dead does
not weaken the principle. It would seem rather to increase than
lessen the force of the rule.
To sustain a claim to the admission of the deposition of a
witness in evidence, the affidavit of a person who represented
himself to be the agent of the plaintiff stated that the witness
had left Louisiana before the commencement of the suit and ascended
the Mississippi with the intention of going to Ohio, and that since
then, the person who made the affidavit had not heard from him,
although he had made inquiries. By the Court: this does not amount
to that degree of diligence which the law requires to introduce
secondary evidence.
In the District Court of the Eastern District of Louisiana on
the eighth day of April, 1836, Johann Frederick Stein, an alien and
a subject of the King of Hanover, presented a petition stating that
he was the sole and lawful heir of Nicholas Stein, or sometimes
called Nicholas Stone, who had died some time before in the Parish
of St. Tammany in the State of Louisiana. The petition prayed that
William Bowman, who had been appointed curator of the estate of the
deceased Stein by the proper tribunal, should be decreed to account
for the estate and effects received by him, and to deliver to the
petitioner the property of the succession which had not been sold,
and to pay to him the amount in his hands.
The answer of William Bowman, the curator, denied that the
petitioner, Johann Frederick Stein, was the heir or related to the
deceased Nicholas Stein, or Stone, and averred that the claim was
interposed to vex and harass the respondent and the true heirs of
Nicholas Stein.
Afterwards, Andreas Stein, residing in the Kingdom of Hanover,
presented a petition to the district court stating that in April,
1834, he had applied to the Court of Probate of New Orleans,
claiming the succession to Nicholas Stein, as the heir of the
deceased, and that by the unjust interference of Johann Frederick
Stein, he had been prevented recovering the same.
Subsequently Johann Stein, Anna Sophia Stein, wife of Mathias
Ahreus, and Luer Stein, a minor, assisted by his curator or
trustee, and by his guardian, all of the Kingdom of Hanover, filed
their petition in the circuit court stating that they are the only
heirs of Nicholas Stein and that in 1835 they had instituted a suit
against William Bowman, which suit is still pending. They aver that
the claim of Johann Frederick Stein is fraudulent and that he is
not the heir of Nicholas Stein, as he alleges. They pray leave to
introduce in the suit, and state that William Bowman is a mere
stakeholder. William Bowman afterwards filed a petition in the
district court setting forth that individuals belonging to three
different families, the petitioners, pretend to be the nearest
relations of the late Nicholas
Page 38 U. S. 211
Stein, and to be entitled to his estate, and he asks, as he is
only a stakeholder, that the parties contesting the claims of each
other may be called in to take cognizance of this suit and defend
him against it.
The petitioner, Johann Frederick Stein, put in a general
replication to each of the petitions of intervention.
The case was, on the application of William Bowman, referred to
a jury, and on 3 March, 1837, it came on for trial, and the jury
found a verdict for the defendant.
On the trial of the cause, bills of exceptions were signed by
the court to the decisions of the court on points arising during
the trial of the cause.
The affidavit of John Rist was laid before the court stating
that he had made diligent inquiry for Francis Stuffle, whose
deposition was taken in the cause in the parish court between the
plaintiff and Bowman; "that he was unable to find him, and had been
informed, and truly believed he was dead; this information had been
derived from those who knew him."
The deposition also stated, that Nicholas Mouzat, whose
testimony was taken in the same cause, left Louisiana before the
commencement of this suit and ascended the Mississippi with the
intention of going to the State of Ohio; that he had not since
heard from him, although he had made inquiries for him.
The deposition of Francis Stuffle was then offered in evidence
by the plaintiff and was admitted by the court, to which the
defendant excepted.
The defendant called the wife of Francis Stuffle, he being dead,
to prove that her husband had been bribed by John Rist to give
evidence in the case and also to prove he had frequently told her
he knew nothing of the plaintiff or of Nicholas Stein. The
plaintiff objected to the admission of the witness, but the court
allowed her to be sworn, and she gave her testimony. The plaintiff
excepted.
The plaintiff then offered in evidence certain German documents
to prove the pedigree of the petitioner, which were rejected by the
court as not being sufficiently authenticated, and to this
rejection the plaintiff excepted.
The depositions which were taken, and which were in the German
language, were not signed by the deponents, and at the end of each
deposition it is stated that each of the witnesses assented to the
same. A magistrate of the place certifies to this fact, and this is
attested under his seal by the "Royal British Hanoverian
Landrostey," and his signature is attested under his seal, by the
"Royal British Hanoverian Minister Residentis."
The defendant, William Bowman, was during the trial admitted as
a witness by the court to testify as to the merits of the
controversy. The plaintiff excepted to his admission.
The court refused to admit Stultz as a witness for the
plaintiff
Page 38 U. S. 212
to prove that he had been in Hanover the preceding summer and
there heard from many old persons of whom he inquired that the
plaintiff was the brother of Nicholas Stein. The witness stated
that he had gone to Germany for the purpose of taking a deposition.
The court was of opinion that the depositions of those persons
should have been taken.
The plaintiff prosecuted this writ of error.
Page 38 U. S. 217
MR. JUSTICE McLEAN delivered the opinion of the Court.
This case was brought originally in the District Court of the
United States for the Eastern District of Louisiana, and on the
trial certain exceptions were taken to the ruling of the court by
the
Page 38 U. S. 218
plaintiff, and which he now brings before this Court on a writ
of error.
The action was brought by petition in the form peculiar to the
courts of Louisiana to compel the defendant to render an account as
curator of the estate of Nicholas Stone, or Stein, deceased. The
plaintiff represents himself as an alien and as the only heir at
law of the deceased. Sometime after the defendant had answered the
petition, Johann Stein and others filed their petition of
intervention, denying the statements in the plaintiff's petition
and representing themselves to be the true heirs of the
deceased.
The cause was submitted to a jury, and on the trial, to sustain
his case, the plaintiff offered in evidence certain German
documents, for the purpose of using such parts of them as contained
the depositions which related to the pedigree of the plaintiff,
which were overruled by the court on the ground that they were not
duly authenticated. And this constitutes the first exception.
Several depositions appear to have been taken, but none of them
was signed by the deponents. At the close of them it is stated:
"After the preceding depositions were read to the deponents,
they gave their assent to them and approbation."
"[Signed] R. V. D. Busseke"
"Seen, for attestation of the preceding signature, of the Royal
Amtsvagtey Burgwedel."
"Luneburg."
"Royal British Hanoverian Landdrostey."
"[Seal] Ruemern"
To which is added: :
"The subjoined signature of the Royal Britannic Land Bailiwick
at Luneburg is hereby attested."
"Hamburg, Sept. 19, 1834"
"Royal Britannic Hanoverian Minister Residentis"
"Im Ausftrage by authority. G. W. Kern"
"[Seal]"
In the case of
Church v.
Hubbart, 2 Cranch 187, this Court held that a
certificate of a consul under his consular seal is not a sufficient
authentication of a foreign law to go in evidence, it not being one
of his consular functions to grant such certificates. And also that
the proceedings of a foreign court, under the seal of a person who
styles himself the Secretary of Foreign Affairs in Portugal is not
evidence.
On the principle of this case it would seem that the court very
properly rejected the depositions offered.
The certificate and seal of the minister resident from Great
Britain in Hanover is not a proper authentication for the
proceedings of a foreign court, or of the proceedings of an officer
authorized to take
Page 38 U. S. 219
depositions. It is not connected in any way with the functions
of the minister. His certificate and seal could only authenticate
those acts which are appropriate to his office.
The authority to take the depositions by the person before whom
they were taken nowhere appears, and it is not shown that the Royal
Britannic Hanoverian Land Bailiwick, Ruemern, was authorized to
attest, as he has done, the signature of R. V. D. Busseke.
If the attestation of the signature and right of the person who
administered the oaths were duly certified under the seal of a
responsible officer, whose appropriate duty it was to give such
certificate, it might be received, so far as the authentication
goes, as
prima facie evidence, though not under the great
seal of the state. It may be proper, however, to remark (though the
point was not raised in the court below) that if the authentication
had been sufficient, the depositions would have been inadmissible,
they not having been taken under a commission, which is the only
mode by which depositions in a foreign country can be taken.
In the course of the trial, Bowman, the defendant, was admitted
as a witness by the court, and, being sworn, gave evidence to the
jury respecting the merits of the case. And to this decision of the
court overruling the objection made the plaintiff also
excepted.
No rule is better established, than that a party in an action at
law cannot be a witness in his own case.
In the case of
Scott v.
Lloyd, 12 Pet. 149, this Court said
"The decision in 1 Pet.C.C. 301, where the court held a party
named on the record might be released, so as to constitute him a
competent witness, has been cited and relied on in the
argument."
"Such a rule,' the court remarked, 'would hold out to parties a
strong temptation to perjury; and we think it is not sustained
either by principle or authority."
Bowman was a party on the record, was curator, as represented,
and was
prima facie liable for the costs of suit.
But if there could have been a release for the costs executed,
or the money to cover the costs had been paid into court, his
competency would not have been restored.
The objection to his competency does not arise so much from the
small pecuniary liability to the payment of costs as from that
strong bias which every party to a suit must naturally feel. And
this influence is not the less dangerous if the party be
unconscious of its existence. Every individual who prosecutes or
defends a suit is, in the nature of things, disposed to view most
favorably his own side of the controversy, and with no small degree
of prejudice the side of his adversary. We think, therefor, to
admit a party on the record under any circumstances to be sworn as
a witness in chief would be attended with great danger. It would
lead to perjuries and the most injurious consequences in the
administration of justice. We think therefore the court erred in
admitting Bowman as a witness.
Page 38 U. S. 220
The next exception of the plaintiff arises from the rejection of
Stultz as a witness, who was introduced to prove that he had been
in Hanover, in Germany, "last summer", and there heard from many
old persons of whom he inquired that the plaintiff was the brother
of Nicholas Stone, deceased.
And this Court have no doubt that this evidence was properly
overruled by the district court.
From necessity, in cases of pedigree, hearsay evidence is
admissible. But this rule is limited to the members of the family,
who may be supposed to have known the relationships which existed
in its different branches. The declarations of these individuals,
they being dead, may be given in evidence to prove pedigree, and so
is reputation, which is the hearsay of those who may be supposed to
have known the fact, handed down from one to another, evidence. As
evidence of this description must vary by the circumstances of each
case, it is difficult, if not impracticable, to deduce from the
books any precise and definite rule on the subject.
"It is not every statement or tradition in the family that can
be admitted in evidence." The tradition must be from persons having
such a connection with the party to whom it relates that it is
natural and likely from their domestic habits and connections that
they are speaking the truth and that they could not be mistaken. 1
Phillips, 174.
2 U. S. 2 Dall.
116.
The declarations proposed to be proved by the witness do not
appear to have been made by members of the family or by persons who
had such connections with the deceased as to have a personal
knowledge of the facts stated. And these persons, for aught that
appears, are still living, and their depositions might be
taken.
On both these grounds the evidence was inadmissible. But there
is another ground on which the opinion of the district court can be
sustained, and it is proper to state it.
The declarations offered as evidence were made subsequent to the
commencement of this controversy, and in fact after the suit was
commenced.
It would be extremely dangerous to receive hearsay declarations
in evidence respecting any matter after the controversy has
commenced. This would enable a party, by ingenious contrivances, to
manufacture evidence to sustain his cause. By interrogatories
propounded in a cautious manner to unsuspecting individuals, he
might elicit the answers he most desired.
It is therefore essential, when declarations are offered as
evidence, that they should have been made before the controversy
originated and at a time and under circumstances when the person
making them could have no motive to misrepresent the facts. 4 Camp.
409.
Case of the Berkley Peerage.
The plaintiff having read the deposition of Francis Stuffle,
deceased, in evidence, the defendant called the wife of the
deceased to prove, as stated in the bill of exceptions, that her
husband had been bribed by John Rist to give evidence in that case,
and also to
Page 38 U. S. 221
prove that he had frequently told her he knew nothing of the
plaintiff, or of Nicholas Stone deceased. The plaintiff objected to
the swearing of the witness, but the court overruled the objection
and permitted the witness to give evidence. To this opinion the
plaintiff excepted.
It is a general rule that neither a husband nor wife can be a
witness for or against the other. Co.Lit. 6, b. Hawk, b. 2, ch. 46,
s. 70. Gilb.Ev. 11. Bull.N.P. 286.
Fitch v. Hill, 11 Mass.
286.
This rule is subject to some exceptions, as where the husband
commits an offense against the person of his wife. 1 Hale P.C. 301.
Hawk. b. 2, c. 46, s. 77. Bull.N.P. 287. 1 Bl.Com. 413. The wife
may exhibit articles of the peace against her husband. Bull.N.P.
287.
The husband and wife may be called as witnesses in the same
case, and if in their statement of facts they should contradict
each other, that would not destroy the competency of either. It
would not follow, from such contradiction, that either was guilty
of perjury.
And in some cases the wife may be a witness, under peculiar
circumstances, where the husband may be interested in the question,
and, to some extent, in the event of the cause. 8 East 203.
Gilb.Ev. 139.
In the case of
King v. Cliviger, 2 Term 268, the court
held that a wife should not be called in any case to give evidence
even tending to criminate her husband. Mr. Justice Grose in that
case observed,
"In all the books which treat of evidence there are certain
technical rules laid down which are highly beneficial to the public
and ought not to be departed from. Some of these relate to husband
and wife, and we find the general rule as to them to be founded not
on ground of interest, but of policy, by which it is established
that a wife shall not be called to give testimony in any degree to
criminate her husband. And Lord Holt says that she shall not be
called indirectly to criminate him. And the rule seems to have
governed all the decisions from that time to the present."
In the case of
Executrixes of Stead v. Pritchett, 6
Term 680, the court said,
"Ratcliff is one of the plaintiffs on the record; he has
therefore an interest in the cause, and that cannot be prejudiced
by any act or by the evidence of the wife."
In the case of
Aveson v. Kinnaird, 6 East 192, the
counsel asserted in the argument that the declarations of the wife
could not be permitted as evidence to show that her husband had
been guilty of fraud or in any manner to criminate him. And he
contended that the rule of law was general, and extended even to
cases where the wife was afterwards divorced from her husband. Lord
Ellenborough, assenting to the rule, observed, "that goes on the
ground that the confidence which subsisted between them at the time
shall not be violated in consequence of any future separation."
And his Lordship observes in the same case, "It is sound
doctrine
Page 38 U. S. 222
that trust and confidence between man and wife shall not be
betrayed."
In this case, however, the court permitted the declarations of
the wife to be given in evidence, as to the bad state of her health
about the time the policy of insurance on her life was executed,
the action being founded on such policy.
The above case of
King v. Cliviger has been somewhat
considered in the Court of King's Bench, in the case of
King v.
Inhabitants of All Saints, in Worcester, and the court seemed
to think that the rule laid down in that case was too large and
general. But at the same time it observed that the rule in the case
of
King v. Cliviger, admitting it to its utmost extent,
did not exclude the evidence in the case then under discussion.
Philips Ev. 69.
It has been said that on the grounds of state policy, the wife
is a competent witness against her husband in case of treason.
Bull.N.P. 289. 1 Brownl. 47. Bac.Ab.Ev. A. 1. But it has since been
settled that the wife is not bound to discover the treason of the
husband. 1 Brownl. 47.
The law does not seem to be entirely settled how far in a
collateral case a wife may be examined on matters in which her
husband may be eventually interested. Nor whether in such a case
she may not be asked questions as to facts that may in some measure
tend to criminate her husband but which afford no foundation for a
prosecution. The decisions which have been made on these points
seem to have been influenced by the circumstances of each case, and
they are somewhat contradictory. It is, however, admitted in all
the cases that the wife is not competent, except in cases of
violence upon her person, directly to criminate her husband or to
disclose that which she has learned from him in their confidential
intercourse.
Some color is found in some of the elementary works for the
suggestion that this rule, being founded on the confidential
relations of the parties, will protect either from the necessity of
a disclosure, but will not prohibit either from voluntarily making
any disclosure of matters received in confidence, and the wife and
the husband have been viewed in this respect as having a right to
protection from a disclosure on the same principle as an attorney
is protected from a disclosure of the facts communicated to him by
his client.
The rule which protects an attorney in such a case is founded on
public policy, and may be essential in the administration of
justice. But this privilege is the privilege of the client, and not
of the attorney. The rule which protects the domestic relations
from exposure rests upon considerations connected with the peace of
families. And it is conceived that this principle does not merely
afford protection to the husband and wife, which they are at
liberty to invoke or not, at their discretion, when the question is
propounded, but it renders them incompetent to disclose facts in
evidence in violation
Page 38 U. S. 223
of the rule. And it is well that the principle does not rest on
the discretion of the parties. If it did, in most instances it
would afford no substantial protection to persons uninstructed in
their rights 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, that he had committed perjury; and the
establishment of the fact depended on his own confessions.
Confessions which, if ever made, were made under all the confidence
that subsists between husband and wife. It is true the husband was
dead, but this does not weaken the principle. Indeed, it would seem
rather to increase than lessen the force of the rule.
Can the wife under such circumstances either voluntarily be
permitted or by force of authority be compelled to state facts in
evidence which render infamous the character of her husband. We
think most clearly that she cannot be. Public policy and
established principles forbid it.
This rule is founded upon the deepest and soundest principles of
our nature. Principles which have grown out of those domestic
relations that constitute the basis of civil society and which are
essential to the enjoyment of that confidence which should subsist
between those who are connected by the nearest and dearest
relations of life. To break down or impair the great principles
which protect the sanctities of husband and wife would be to
destroy the best solace of human existence.
We think that the court erred in overruling the objections to
this witness.
The next exception by the plaintiff arises from the rejection of
the deposition of Mouzat, which had been taken in the case of the
parties in the parish court.
To lay the foundation for reading this deposition, John Rist,
who represents himself to be the agent of the plaintiff, swore that
the witness left Louisiana before the commencement of this suit and
ascended the Mississippi with the intention of going to Ohio, and
that since then he has not heard from him, although he has made
inquiries.
This does not amount to that degree of diligence which the law
requires to introduce secondary evidence, and such was the
deposition offered.
The plaintiff might have taken out a subpoena, the return of
which, not served, would have been better evidence that the witness
was not within the judicial district. We think, therefore, that the
court did not err in rejecting the deposition.
For the errors above specified, the judgment of the district
court must be
Reversed and the cause sent down for further
proceedings.
MR. JUSTICE BALDWIN dissented.
Page 38 U. S. 224
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana and was argued by counsel. On consideration
whereof it is ordered and adjudged by this Court that the judgment
of the said district court in this cause be and the same is hereby
reversed with costs, and that this cause be and the same is hereby
remanded to the said district court for further proceedings to be
had therein in conformity to law and justice and the opinion of
this Court.
