2 Ct. Cl. 605 | Ct. Cl. | 1866
dissenting :
Whether the claimants can ho witnesses in their own cases, in this court, is a question of great importance, as it meets us at the threshold of almost every case. The solution of it depends upon the interpretation and application of the legislation of Congress upon the subject. By the act of the 6th of July, 1862, (12 Stat., 588,) it was enacted : “ The laws of the States in which the court shall be 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, in equity, and admiralty.” This left the admissibility of the witness in each case to depend upon the law of the State where the United States court was being held at the time. If the State has retained the rules of the common law, under this act, of course, all the parties interested in the event of the suit, and the parties to the record, are excluded. If, on the other hand, the legislation of the State has abolished the common law restrictions upon the admissibility of evidence, they would he admitted.
In the act making appropriations for the civil expenses of the government, approved the 2d of July, 1864, (13 Stat., 351,) it is provided in the 3d section of that act, “ That the sum of one hundred thousand dollars is hereby appropriated, out of any money in the treasury not otherwise appropriated, for the purpose of meeting any expenses in detecting and bringing to trial and punishment persons engaged in counterfeiting treasury notes, bonds, or other securities of the United States, as well as the coin of the United States : Provided, That in the courts of the United States there shall he no exclusion of any witness on account of color, nor in civil actions, because he is a farty to, or interested in, the issue tried."
The 1st section of the act approved the 3d of Marclu 1865, (13 Stat., 533,) enacts : “ 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 statement embraces and exhibits all the legislation I have been able to find by Congress upon the subject. And while it is admitted that it establishes a uniform rule for the courts of the United States in cases arising between individuals or corporations, it is denied that it extends to or affects the United States as a party in auy cause. The grounds of this exemption are based upon the sovereign character of the United States, and upon the maxim that
. But the rule of exemption is subject to many limitations, restrictions, and exceptions. Thus it does not apply to statutes made to provide for the poor, to found or advance charities, to sustain religion, to suppress fraud, maintain the truth, and promote justice and right, for these are among the principal objects for which governments are instituted among men ; and just governments and sovereigns feel themselves called upon to further and promote these great purposes by their examples, as well as to enjoin and enforce them by precept. Thus in 5 Rep., 14, (b,) a lease made to the Queen by colleges, deans, chapters, &c., contrary to the Stat. 13 Eliz., ch. 10, was held to be restrained by that statute, although the sovereign was not named in it. And one of the reasons given for the judgment is : “ In divers cases the King is bound by act of Parliament, although he be not named in it, nor bound by express words ; and therefore all statutes made to suppress wrong, or to take away fraud, or prevent.the decay of religion, shall bind the King, although he be not named therein, for religion, justice, and truth are the sure supporters of the crowns and diadems of kings.”
In 1 Woodeson’s Leet., pi 31, the general doctrine of the exemption of the sovereign is stated, and acts for the advancement of religion, to provide for the poor, and to prevent wrong, are mentioned as exceptions. •
The same doctrine is held and maintained in 2 Inst., 681; 5 Reports, 14, (b;) Co. Litt., 344, (b;) 2 Inst., 353, 354; in Rex v. The Arch
The act of Congress of the 2d July, 1862, relating to evidence in the District of Columbia, is almost a literal transcript of the 14 and 15 Viet., cap. 99. The latter act came under review in the case of the Attorney General v. Radloff, 10 Exch. Rep., 84; that was an information to recover the penalty of treble the value of the goods smuggled, under the act of 8 and 9 Viet., cap. 87. The 82d section contained this provision : “ That all penalties and forfeitures incurred or imposed by this or any act relating to the customs, or to trade or navigation, shall and may be sued for, prosecuted, and recovered by action of debt, bill, plaint, or information, in any of her Majesty’s courts of record.” It also provides that the penalty may be recovered by summary conviction. On the trial of the case before Lord O. B. Pollock, the defendant’s counsel proposed to call the defendant himself as a witness in support of the defence. This was objected to on the part of the Crown, and the objection sustained, on the ground that the case was, in substance and effect, a “ criminal proceeding,” and so within the exceptions contained in the act itself. A rule nisi was granted for a new trial, and the cause was fully argued before the court in banc. During the argument., one of the counsel insisted that the Crown was not bound by the act, the Queen not being named in it. Pollock, O. B., remarked, “ in such cases, the Grown is not bound as to its person or property, but is bound with respect to the administration of justice.” The judges differed in their conclusions; were equally divided, and delivered opinions seriatim. But none of them even allude to the ground here set up. It was placed by those opposed to the admission of the testimony upon the ground that the witness was excluded on the words, of the statute. The whole contest was, whether it was a civil or criminal proceeding. No decision was reached, and the rule was dropped. The cases of Rex v. Wright, 1 Ad. & EL, 434, and De Bode v. Regina, 14 Jurist, 970, decide nothing that reflects any light on this case. (See 1 Kent’s Com., 507; Com. Dig. tit. Parl. R., S.; 15 East., 333;
To my mind it is entirely clear that the objects and purposes of this act bring it distinctly within the exception. The acts relate to the administration of justice. They are intended to advance right, and to elicit truth from parties who were heretofore excluded from testifying. To settle controversies, to maintain right, to vindicate the law, and thus promote social order and personal security, are among the most important and primary objects for which governments are instituted. Whenever these are ignored or neglected, government itself must become feeble and inefficient, if not contemptible. As these are among the fundamental objects and purposes of government, and necessary to its own preservation and efficiency, it would be strange, indeed, if the government were excluded or relieved from laws made to promote or further them.
It is an error to say that the exclusion of witnesses on account of being parties or interested in the event cannot be considered a wrong, or their admission an advancement or promotion of justice, because such exclusion has existed for centuries under the sanction of law. This argument would be equally effectual as applied to any other legal .or political reforms. Special pleadings, the numerous absurd fictions of the old English law, which were often permitted to defeat the ends of justice; the remnants of feudal tenures, and- the numberless absurdities and crudities which the enlightened progress of modern times has swept and. is sweeping away, could have pleaded the same prescriptive rights, and claimed immortality by virtue of centuries of toleration. But to introduce and establish such rules is the prerogative of the lawmaking power. It is a matter of which they are exclusively to judge. The courts are to administer these rules, and to give them force and effect according to the views and intentions of the legislature. And we are not to presume that they were mistaken, or to refuse to give full effect to the law, because we may differ as to its policy or propriety, or even doubt whether it will accomplish the end proposed or intended. In the present case there is no just reason to doubt the wisdomor policy of the law. Some of the most enlightened states in the world have been pioneers in this reform. And the nearly unanimous judgment of the profession, both at the bar and on the bench, has sanctioned and approved the rule. I cannot think that in framing a general rule of law of this character, establishing it as the guide of every court, making it universal, it could have been intended or even thought of that the government itself should_be excluded from the benefit or the observance of the rule.
The courts of the United States are a part of the government of the United States ; a co-ordinate branch with the legislative and executive. As such they represent a part of its dignity, power, and sovereignty, and constitute, in every sense, a necessary and essential part of the government itself; for the Constitution provides that “The judicial power of the United States shall he vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” The whole judicial power of the nation is vested in those courts. It can reside nowhere else. Even Congress cannot vest it in or confer it upon any other body, individuals, or department. These courts represent, in the administration of justice and the enforcement of right, and the maintenance of social order by civil process and penal sanctions, the sovereignty and power of the people of the republic. And when we speak of the “ courts of the United States,” it is but another term or designation for the government of the United States, as it is constituted and displayed in one of its great departments. To prescribe a general rule of evidence in judicial proceedings for the courts of the United States is to prescribe that rule for the government of the United States; for in all cases falling within the judicial power of the United States those courts alone, and exclusively, represent the United States in their corporate or national capacity; for the power and jurisdiction of those courts is full, plenary, and exclusive. It is the government that establishes this rule by Congress. It is the same government that is to carry it into effect through another branch or department. It is a rule established to guide, control, and direct, in the matter to which it relates, the operations of the government, and it would be strange, indeed, if the government were not affected and bound by its provisions.
But let. us examine whether the acts upon their face do not show that they were intended to include the United States as well as private parties. The one act admits “ The person in whose behalf any such
I find nothing in the act of the 3d of March, 1863, reorganizing this court, which militates in the least against this construction. The statutes we are considering were enacted subsequent to that act. The 8th section, allowing the United States to examine the claimant as a ' witness, was a step forward. It went, too,- in the very direction of
As to the objection of the want of mutuality, I do not regard it as sustained by the facts. The government of the United States has no legal similitude to that of a natural person. It acts through and is represented by its officers and agents; and in all matters which may become the subject of contest in a court no one is excluded as a witness because he is an officer of the United States, or because, as such, he made the bargains, contracts, or agreements out of which the controversy arises. In all cases of this kind the claimants have been excluded, while those with whom they made the contracts, or transacted the business, have been permitted to testify on behalf of the government. In this respect it appears to me that the want of mutuality is rather to be charged to the old rule than to the provisions of the act. In the case of suits by or against executors
Upon every ground, therefore, I am of opinion that the party claimants, under the acts of Congress cited, have the right to testify in their own cases, and that the evidence in this case ought to be admitted.