1. The purpose of the Act of Congress (Revised Statutes, § 858)
enacting that
"In courts of the United States, no witness shall be excluded .
. . in any civil action, because he is a party to or interested in
the issue to be tried,
provided,"
&c., was to put the parties to a suit (except those named in
a proviso to the enactment) on a footing of equality with other
witnesses -- that is to say, to make all admissible to testify for
themselves, and all compellable to testify for others.
2. An order accordingly made for a subpoena to a defendant in
equity, in order that his deposition might be taken for the
complainant.
This was an application for an order that a subpoena issue for
John Chiles, the defendant in the case of
Texas v.
Chiles
Page 88 U. S. 489
(a case in equity), in order that his deposition might be taken
on behalf of the complainant. The proper disposition of the motion
depended upon the solution of the question whether he could be
required to testify by the other party. The statutory provision of
Congress upon the subject, found in section 858 of the Revised
Statutes, was as follows:
"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,
provided that in actions by or against executors,
administrators, or guardians, in which judgments 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. In
all other respects, the laws of the state in which the court is
held shall be the rules of decision as to the competency of
witnesses in the courts of the United States in trials at common
law, and in equity and admiralty."
MR. JUSTICE SWAYNE delivered the opinion of the Court.
It was a rule in equity of long standing that the complainant
could examine the defendant as a witness, upon interrogatories, and
that one defendant might examine another, but they could not
examine the complainant without his consent, and the right to
examine a defendant was attended with serious restrictions and
embarrassment. [
Footnote 1] A
bill of discovery was a dilatory and expensive measure. [
Footnote 2] It was also less effectual
than the examination of the defendant as a witness.
In trials at law, the system of exclusion was more rigid. The
general rule of the common law was that no party to
Page 88 U. S. 490
the record could be a witness for or against himself, or for or
against any other party to the suit. [
Footnote 3] This doctrine was attacked by Bentham in his
work on evidence, published in 1828, with great force of reasoning.
He maintained that "in the character of competency, no objections
ought to be allowed." [
Footnote
4] His views produced a deep impression in England, and became
the subject of earnest discussion there. Subsequently they bore
fruit. In "the County Courts Act," passed by Parliament in 1846, it
was declared that
"On the hearing or trial of any action, or on any other
proceeding under this act, the parties thereto, their wives, and
all other persons may be examined either on behalf of the plaintiff
or defendant upon oath or solemn affirmation."
This was a great alteration in the law from what it was before.
After it had been tested for six years in the county courts and its
wisdom approved, the rule was, in 1851, by a measure known as "Lord
Brougham's Act," with a few exceptions not necessary to be stated,
made applicable in all legal proceedings elsewhere. An able writer
says, "Every eminent lawyer in Westminster Hall will readily admit
that it has been productive of highly beneficial results." He
adds:
"In courts of law it has not only enabled very many honest
persons to establish just claims which, under the old system of
exclusion, could never have been brought to trial with any hope of
success, but it has deterred at least an equal number of dishonest
men from attempting on the one hand to enforce a dishonest demand,
and on the other to set up a fictitious defense."
The common law commissioners, in their report upon the subject,
said:
"According to the concurrent testimony of the bench, the
profession, and the public, the new law is found to work admirably,
and to contribute in an eminent degree to the administration of
justice. [
Footnote 5]"
The innovation, it is believed, has been adopted in some form in
most if not in all the states and territories of our
Page 88 U. S. 491
Union. [
Footnote 6] It is
eminently remedial, and the language in which it is couched should
be construed accordingly.
A doubt has been suggested whether the enactment before us does
not give merely a privilege to each party which may be availed of
or not as a matter of choice, without conferring the right upon
either to compel the other to testify.
This view is too narrow and cannot be maintained. The first
sentence forbids, in the courts of the United States, exclusion in
any case on account of color, and in civil actions on account of
interest or being a party. If either party offers to testify and is
excluded by reason of being a party, there is certainly a clear
infraction of the statute, both as to its language and meaning. If
either party calls the other, and the party called is excluded upon
this ground, is not the infraction equally clear? The language
applies as well to one case as to the other. Both are alike within
its terms and meaning. We see no ground for a distinction. A doubt,
the converse of the one suggested, might with equal propriety be
insisted upon. Such a proposition would have the same foundation,
and might be sustained by an argument,
mutatis mutandis,
in the same terms. The same doubt and the same reasoning would
apply as to colored witnesses. All such doubts rest upon an
assumption unwarranted by anything in the statute. The case is one
where the language is so clear and comprehensive that there is no
room for construction, and the duty of the court is simply to give
it effect according to the plain import of the words. There should
be no construction where there is nothing to construe. [
Footnote 7]
But if there were doubt on the subject, the statute being
remedial in its character, the doubt should be resolved in a
liberal spirit in order to obviate as far as possible the existing
evils. To permit parties to testify, and to limit the statute to
this, would deprive it of half its efficacy, and that much the most
beneficial part. Where the testimony of one party is important to
the other there is, of course, unwillingness
Page 88 U. S. 492
to give it. The narrow construction suggested would leave to the
party needing the evidence in such cases no choice but to forego
it, or fall back upon a bill of discovery. It is hardly credible
that Congress, in departing from the long-established restriction
as to parties to the record, intended to stop short of giving the
full measure of relief. We can see no reason for such a limitation.
The purpose of the act in making the parties competent was, except
as to those named in the proviso, to put them upon a footing of
equality with other witnesses, all to be admissible to testify for
themselves and compellable to testify for the others. This
conclusion is supported by all the considerations applicable to the
subject.
Order made.
[
Footnote 1]
1 Smith's Chancery Practice 343; 1 Greenleaf on Evidence § 361;
Eckford v. De Kay, 6 Paige 565;
Ashton v. Parker,
14 Simons 632; 2 Daniell's Chancery Practice, Perkins's edition,
1865, p. 885, note.
[
Footnote 2]
2 Story's Equity §§ 1483, 1489.
[
Footnote 3]
Greenleaf on Evidence §§ 329, 330.
[
Footnote 4]
Vol. 1, p. 3.
[
Footnote 5]
2 Taylor on Evidence § 1218.
[
Footnote 6]
1 Greenleaf on Evidence § 329.
[
Footnote 7]
United States v.
Wiltberger, 5 Wheat. 76.