Hubbell v. United States

delivered tbe opinion of tbe court:

Tbe motions made in tbis case require tbe construction of tbe 4tb section of tbe act of June 25, 1868. Its enacting clause consists of two branches relating to different things; tbe first, to tbe competency of witnesses; tbe second, to tbe use of evidence.

It is not questioned that tbe first branch precludes parties and persons interested from testifying here from and after tbe date of tbe act. It is questioned whether tbe second branch precludes tbe use here of evidence given before tbe date of tbe act.

Tbe second branch forms, as it stands, a sentence complete *38in its construction and distinct in its effect. Its words are, “No testimony given by such, plaintiff, claimant, or person shall be used.” These words make an absolute and unqualified prohibition, and thus of their own force prohibit the use of the testimony by either party to the litigation. And if this is the evident effect when taken in their ordinary meaning and in their collocation as they stand in the statute-book, the court must so apply them, though no reason for them may be perceptible. But I think a reason for them is perceptible. When a party deposed under the previous acts it was because and on the consideration that these acts assured him that he, as well as the United States, should have the benefit of his testimony. He, in making proof of facts which he could not prove otherwise or without greater cost; the United States, in getting proof of facts not attainable by them otherwise or without greater cost; and after a party has testified on such assurance and consideration, to take away his right to use and yet leave his opponent, the right and option to use would be like enforcing a contract whose consideration had failed, and I think even-handed justice would prevent this, and therefore that the statute means what it says.

It was contended on the part of the United States that the second branch of the statute should be read by adding to, or repeating after, the words “ shall he used,” the words of the first branch, “ in supporting such title, claim, or right.” But to do that would be altering the effect of the statute by altering its terms, for it would change the absolute prohibition made by the statute as.enacted into a special prohibition confined to one of the parties to the litigation.

It was contended for the United States that the depositions given under previous acts by claimants, &c., might be used by the United States as admissions under the general rules of the common law, and that it was not to be inferred that the statute meant to interfere with the rules of the common law or the practice under them. But I think there is no room for inference ; the prohibition is express, and if it is in terms absolute and unqualified and interferes with the rules and practice of the common law, then these must yield to the statute which makes the rule here for the special matter to which it relates.

Besides, there is no rule or practice or right at the common law by which the depositions of a .party taken in a suit may be *39used as Ms admission in the same suit, and the statute of 25th June, 1868, relates to nothing known to the common law, for the statute relates to depositions of persons and parties interested. The common law recognizes depositions only of persons not parties or interested. And these cases do not and could not arise at the common law, but would have been precluded by it, and there is and can be no rule or practice of the common law in relation to them. íhey are created and are to be governed by statutes, and these are to be construed by their own terms and reasons. The previous statutes admitting parties to testify introduced a system unknown to the common law and repugnant to it, and the statute of 25th June, 1868, seeks to abolish that system, and it does this by repealing the previous statutes and also by abrogating their consequences in enacting in terms that the testimony given under them “ shall not he used.”

On the ground stated, I am of opinion that the deposition of the claimant cannot be used by him; that the United States cannot use it in tMs action as the claimant’s admission.

concurring:

In June, 1864, the Senate having under consideration the civil appropriation bill, Senator Sumner moved as an amendment to the 3d section this proviso: “ That in the courts of the United States there shall be no exclusion of any witness on account of color.” To this amendment Senator Buckalew moved an amendment in these words: “ Nor in civil actions because he is a party to, or interested in, the issue tried,” (Congressional Globe, part IY, p. 3259,1st sess. 38th Cong.)

Both of these propositions were adopted by the Senate, and the proviso on the 2d July, 1864, became the law of the United States. The section upon which this proviso was engrafted did not relate in any way to the law of evidence, but simply made an appropriation of $100,000 “for the purpose of meeting any expenses in detecting and bringing to trial and punishment persons engaged in counterfeiting.” '

This hurried legislation is the more to be wondered at, inasmuch as at the same time, and indeed almost on the same day, Congress also passed the act “ relating to the lato of evidence in the District of Columbia,” (13 Stat. L., p. 374, Cong. Globe, 1 sess. *4038th Cong’., pp. 3258,3375,3402, 3463,) an act which is little more than a literal transcript of the 2d, 3d, and 4th sections of the English uAct to amend, the lato of evidence,” (14 and 15 Yict., chap. 09, 7th Aug., 1851.) If in this admirable re-enactment the words “District of Columbia* had been stricken out, and “Courts of the United States* inserted, Congress would have given to the country one of the best considered statutes ever framed.

At the next term of this court the question came up whether the new law of evidence extended to cases wherein the governments a party, and more especially to cases in the Court of Claims, The question was very carefully considered, and after prolonged deliberation it was held that the exclusive statutory right of the government to examine a claimant in this court, and use or withhold his testimony at its option, is a prerogative which an act of Congress does not take away, except by special and particular words; and hence that in the Court of Claims a party cannot testify in his own behalf under the general words of the act. Jones and Brown's Case, 1 C. Cls. R., p. 383.

This being the declared law appertaining to this court, the House of Representatives in January, 1867, (Cong. Globe, 2d sess., 39th Cong., p. 529,) added to the general appropriation act, then under consideration, a section which declared that the proviso in the “ civil appropriation act* of 1864 “ shall be construed to embrace all suits to which the United States shall be a party in the Court of Claims, either plaintiff or defendant.* When this amendatory section reached the Senate it was by that house all but unanimously stricken out of the bill. But there were various other amendments to the bill made by the Senate; and it so happened that in all of these amendments the House did not concur; the bill therefore went to a committee of conference.

Among the items of the bill was one allowing to certain clerks and employés of the House of Representatives additional or increased compensation. The 44th amendment of the Senate struck out this item of appropriation, and in regard to it the two houses pertinaciously disagreed. Near the end of the session, on the 2d March, 1867, Senator Trumbull, to save the appropriation bill, and at the same time save the chief objection of the Senate, moved that “the Senate recede from all its amendments to the bill disagreed to by the House of Representatives, except the forty-fourth.” (Cong. Globe, 2d sess. 39th Congress, p. 1977.) *41Tbe Senate so voted; tbe House then receded from, its position against tbe 44tb amendment. Tbe other amendments of tbe Senate were lost, and tbe bill with this provision relating to tbe Court of Claims became a law.

I bave been thus particular in tracing tbe bistory of tbe evil intended to be cured by tbe statute under consideration because it is essential to its construction to see precisely bow far tbe evil extended and precisely how it was brought about by legislation. With this peculiar history before us it will not be considered disrespectful to say that tbe law of 1867 was overlooked in tbe consideration of tbe expenditure on which tbe two bouses differed, and that its passage was, in fact, a legislative inadvertence, which tbe two bouses promptly and almost imanimously corrected.

Tbe chief controlling principle which governs and must ever govern courts when construing statutes is to discover tbe true intent of tbe legislature, and it is a familiar rule that effect is to be given “ to every clause, section, and word, if an effect can be given to it.” (Dwarris on Stat., p. 574.)

Neither Congresses nor men are apt to say precisely tbe same thing over twice in different words; nor can we suppose that in a statute of this character Congress v'ould bave exercised such abundant caution that after declaring that no claimant “ shall be a competent loitness in tbe Court of Claims?’ they would immediately further enact that bis testimony shall not be used. So, also, with regard to tbe proviso, it would hardly be giving a reasonable effect to that part of the act to say that it secured to tbe United States tbe right which tbe former statute of 1863 distinctly gives, and which no provision of this statute by tbe most forced construction could take away.

It is therefore, I think, tbe duty of tbe court to give to each of these three parts of tbe section an effect, taking care, nevertheless, that in assigning to each part an office of its own we are not straining tbe construction beyond tbe true intent of tbe statute. Tbe only manner in which this can be done, I think, is to give to tbe first clause a prospective effect and say that it means hereafter “no claimant shall be a competent witness in. supporting bis claim;” to give to tbe second clause a retroactive effect and say that it means, “no testimony heretofore given by a claimant shall be used on the trial of the case.”

This disposes of tbe first question relating to tbe right of *42claimants to nse their own testimony, but there remains that relating to the right.of the defendants. The question of construction here is what words shall be- added to the clause, “ no testimony given by such claimant shall be used.” Shall we add “by such claimant'?” or “by either party!”

If we should restrict the clause to claimants, I can see no possible use of the succeeding proviso in the section. It in terms relates to the claimants previously mentioned. It is not necessary to save the general right given to the defendants by the act to which it refers. It is in close connection grammatically and logically with the two preceding clauses, and manifestly was intended to limit them. It is moreover a restriction in favor of the defendants, and therefore restricts something which is a restriction upon them. Now the only restriction which the section can possibly put upon the defendants is this one inhibiting them from using a claimant’s deposition given in his own behalf. I therefore feel constrained to thus construe the statute.

.When thus construed the parts under consideration will read, “ No claimant in the Court of Claims shall hereafter be a competent witness in supporting any claim; and no testimony heretofore given by such claimant shall be used ly either party, but the United States shall if they see cause have the right to examine such claimant as a witness under the regulations and with the privileges provided in section eight of the act of 3d March, 1863, reorganizing the Court of Claims.” Such a construction will not be inconsistent, I think, with the will of Congress. It was probably thought that after claimants had been at the trouble and expense of making depositions and printing-testimony, it would be an unnecessary unkindness to both destroy the depositions as evidence in their favor, and at the same time leave the defendants free to use this testimony taken at the claimants’ risk and cost.

But if the depositions are not evidence for either party as depositions, it is still claimed and is urged with great force that like any other written declaration they may be jiroved and put in evidence as admissions. There are two reasons why this should not be done, in my judgment.

First, when Congress prohibited them from being used, and left the defendants free to re-examine the claimant under the act of 1863, the prohibition was general, and meant in anyway. *43They would be just as valuable to tbe defendants as admissions as any other form of testimony, and it does not agree with the dignity of Congress to say that they protected the claimant in the one form of evidence and intended that he should be injured by the same paper in another form.

In the second place, apart from all intent of Congress, I think the court should protect the claimants for this reason: The depositions, though likened to testimony given by a party in another court, or in another action, and to a letter written by a claimant to a third person, differ in this from the illustrations, that they have not yet been uttered. The testimony given by a party in another suit has been completed, but these depositions have not yet been read in evidence. Until the trial there was a ground for reflection, a locus penitentice, in which the claimants might turn and correct them, or indeed, if they found they had erred, in which they might altogether withhold them. The depositions were filed in the clerk’s office simply-for authenticity, not as evidence already given. They were like incomplete declarations — like a letter partialy written but left unfinished. I am aware that this- distinction is a narrow one, but I think it throws á substantial doubt upon the depositions as spoken declarations, and that the claimants are entitled to the benefit of that doubt.

concurring:

This court in the case of Jones & Brown v. The United States, (1 C. Cls. R., 383,) held that the proviso in the third section of the act of July 2,1864, did not include the United States as a party, or authorize a party in an action against them to testify in his own behalf, nor did it take away the prerogative of the government to examine a claimant in this corut, and to use or withhold his testimony at its option. Subsequently Congress, in the act of March 2,1867, gave a legislative construction to this proviso, in which they declared it should u be construed to embrace all suits to which the United State shall be a party in the Court of Claims, either plaintiff or defendant.”

This legislative interpretation of the proviso of the 3d section of the act of July 2,1864, did not, however, remain in force but .little over one year when Congress overruled it, and in plain, unambiguous terms declared, as before shown, that no plaintiff *44or claimant, or person from or through whom any such plaintiff or claimant derives his alleged title, claim, or right against the United States, or any person interested in such title, claim, or right, shall be a competent witness in this court in supporting any such title, claim, or right.

The act of June 25,1888, in this respect, is incompatible, both with the proviso contained in the 3d section of the act of July 2, 1864, and the construction put upon it by Congress in the 2d section of the act of March 2, 1867, and therefore repeals so much of the proviso as relates to the right of parties or persons interested in the issue of causes tried in the courts of the United States to testify in their own favor.

In this view of the case, it is plain that the supposed right of the plaintiff to give his testimony, under the acts of Congress in his own behalf, is flatly denied him, and the case stands as at common law, (except only as it may be modified by the 8th section of the act of March 3,1863,) which precludes a party to the record in civil suits from being a witness either for himself or his co-suitor. .

But admitting this view of the case, it is insisted that the act of June 25,1868, is prospective in its terms, and cannot, unless a retro-active operation be given it, in any degree, affect the case in hand; and that such interpretation of the act renders it opposed to the Constitution of the United States, and therefore void.

This argument, pressed as it has been upon the consideration of the court with much earnestness and ingenuity, cannot be maintained. The act of Congress under review contains none of the features of a retroactive law, or law impairing the obligation of a contract, which is condemned by the Constitution.

It may, perhaps, in a limited sense be retroactive, so far as it deprives the plaintiff' of the use of his own testimony given in support of his claim, under the proviso of the third section of the act of July 2,1864. But if such is its effect, be it so; a retrospective law, which does not impair the obligation of a contract, or partake of the character of an ex post facto law, is not condemned or forbidden by any part of the Constitution of the United States. This doctrine was recognized by the Supreme Court of the United States as early as the case of Sutterlee v. Mathewson (2 Peters, 380, 411,) and to my knowledge has never been since departed from. The act itself, is not in the nature of a contract, and no absolute rights vested under it. *45It grants nothing to the claimant out of which an obligation could spring, which the act of the 25th June, 1868, might impair. The supposed right of the plaintiff to give his testimony in his own behalf, sprang from the law as it then existed — [the act of July 2,1864, § 3,] and that section, or the proviso contained in it, being itself a rule of evidence, and vesting the claimant with no absolute right, may be repealed, and the rule abolished, changed, or modified, as the national legislature in its discretion, may think best, without any violation of the federal Constitution. Jackson v. Lamphere, (3 Peters, 280;) Curtis’s Com., §§ 252,253, and authors there cited.

This brings me to the consideration of the second general question involved in this case, which contains more difficulty than the first; but which, I think, is capable of a clear and satisfactory solution.

It is obvious Congress intended, by the act of June 25, 1868, § 4, not only to cut off the supposed right of the plaintiff, or claimant, in all future cases, from testifying in his own favor, but to deprive such plaintiff or claimant of any benefit he might derive from his own testimony which had been delivered and filed as evidence in his cause then pending and undertermined in this court. The words of the statute, “and no testimony given by such plaintiff, claimant, or person, shall be used,” immediately following the prohibitory clause of the act, and closing the sentence, can have no other reasonable construction, and, in fact, no meaning without such interpretation.

It therefore follows as a corollary that the plaintiff or claimant is not only prohibited from testifying in all future cases, at his option, in his own behalf, but from using such testimony heretofore delivered and filed with the record. We can derive no benefit whatever from the deposition in question, because of its intrinsical illegality. The deposition after its suppression by the court is not a lawful paper in the cause, and constitutes no part of the record, unless it be made so by order of the court or bill of exception. Now, can the Attorney General put such paper, in whole or in part, at his own discretion, in evidence, and thereby make that which is illegal and incompetent lawful and competent testimony ? I think not. It is a universal rule that garbled extracts cannot be taken from any paper and used against the party uttering it. Such party is always entitled to the whole he has said upon the same subject, and at the same *46time. To grant tbe rule asked for, and allow tbe government to split tbe plaintiff’s deposition, and at tbe discretion of tbe Attorney General to put in evidence against tbe claimant sucb extracts from tbe deposition as be may select, and withhold others, would not only violate this general rule of law, but place it beyond tbe power of the court to judge whether or not tbe parts put in evidence were explained by tbe parts withheld. Great wrong-might result from sucb a practice, and I apprehend it is not tolerated by any court, and certainly not recognized by any rule of evidence of which I have knowledge.

But it is earnestly contended that notwithstanding the United States may not introduce garbled extracts from the deposition, they may nevertheless, at the ox>tion of their Attorney General, put the entire paj^er in evidence against the jilaintiff. I cannot assent to this prox>osition. Its x>ractical result is to carry the whole dex>osition as evidence in the case to the court', and thus to make legal a deposition which by the act of Congress is x>osi-tively declared to be illegal and inadmissible. It is unlike the case of a deposition which is legal in itself, taken by one party, who by reason of its contents refuses to read it, and the opposite party chooses to read it as his testimony. In such a case there is no question arising on the legality of the deposition. It is a legal paper in the cause, but containing such matter as the party who took it may think not calculated to advance his cause, and therefore he withholds it. But in the case now under consideration, the dex>osition is illegal, and for intrinsic cause of illegality it has been supx>ressed and put out of the case, and cannot, at the election of the Attorney General, be directly or indirectly rendered legal and admissible.

In cases in which a deposition is rejected for informality, the. rule is, “ yet as mere declarations of the witness, under his hand, they are admissible against him, wherever he is a party,' like any other admissions; or to contradict and impeach him Avhen he is afterwards examined at a witness.” (1 Greenleaf on Ev., §552.)

“But,” continues the learned author, in the same section, “as secondary evidence, or as a substitute for his testimony viva voce, it is essential that they be regularly taken, under legal proceedings duly pending, or in a case and manner x>rovided by law.” (Ib.)

While the common law rule here stated does not fall exactly *47within the facts of the case under discussion, I have no doubt that the Attorney General upon application to the court, and on sufficient cause shown, may, under the eighth section of the act of March 3,1863, avail himself of all the admissions made by the plaintiff or claimant in his former deposition, tending to defeat his alleged cause of action. And if, as suggested in argument, this mode of proceeding is impracticable from any cause, such as the death or removal of the plaintiff beyond the jurisdiction of the court, it can scarcely be doubted that the defendants may jw’ove the claimant’s admissions by other testimony as in other cases of admissions.

The deposition must be suppressed; and the application of the Attorney General to read it either in whole or in part as evidence in this case, denied.

dissenting:

1 agree with the majority opinion just read, that the act of Congress approved June 25,1868, clearly excludes the testimony of a claimant in support of his claim. And there is no difference in the result, whether the testimony was taken before or after the passage of the act. Nor is such an enactment retroactive in its character and effect. It operates in the future, and does not seek to go back to instances where the testimony has been used and*tlie cases decided, but only prescribes the rule for the trial of all future cases.

I am satisfied that neither the Attorney General nor any special counsel acting on behalf of the United States, as the law now stands, has the power or authority to waive the provisions of this act and allow the claimant to introduce his own testimony in support of his claim.

A different question arises when it is offered by the United States to defeat the title, claim, or right of the claimant; in that case it is not offered in evidence as the testimony or deposition of the claimant in support of the claim, but as a solemn and deliberate declaration or admission made against his interest. A letter, a deed, an agreement, or even a verbal conversation containing such a statement affecting his interest would be competent evidence. Why not a deposition taken in the very cause, with due care and deliberation, under the sanction of an oath and obliged by every consideration to speak accurately *48and truly ? I do not think that the clause in the act that “ no testimony given by such claimant, plaintiff, or person shall be used,” was intended to exclude the testimony when offered to defeat, and not to support the claim. The object of introducing this sentence, I think, was to meet one of the very questions raised in this motion, that when the testimony had been previously given it should not be used after the passage of the act in support of the claim.

In giving a construction to this enactment it is important to take into consideration the object which the legislature had in view in the passage of this law. What was the evil to be corrected or good attained by its provisions? Whenever the meaning of a statute is distinct and unambiguous the legislature shall be presumed to have meant what they have so plainly said. But where the words or phrases of a law admit of different interpretations, we are to give them such a construction as will be in harmony with the general intention, scope, and purpose of the enactment. To this rule I know of no exception. Our first inquiry, then, is, does this law by its plain, direct expressions prevent and forbid the United States from using a claimant’s deposition taken on his own behalf to defeat the right or claim set up in the case ? It does appear to me that it cannot be made even to imply, much less express, such a prohibition. There is nothing in the law which even touches or hints at this question. On the contrary, the phrase “ and no testimony given by such plaintiff', claimant, or person shall be used,” is but one member of a sentence related to and connected with ts adjunct by the copulative conjunction “ and.” It was, therefore, unnecessary to repeat at the end of it “in supporting such title, claim, or right,” because that was implied from the natural connection and collocation of the terms and phrases in which the enactment is comprised. But whether this be admitted or not, it is very evident from the different routes by which my different colleagues arrive at the same conclusion, and the various reasons upon which they base it, that the act is not entirely free from doubt, and that there is at least some room left for interpretation. If that be so, then how are we to construe it? Where the words used are at all ambiguous or doubtful in themselves, we must then resort to something else to ascertain the intention of the law giver. That intention, when it is apparent, or can be ascertained, is the governing and con*49trolling idea in construing and applying tbo law. And one of tlie surest and best means of learning and exploring the intentions of the law-making power in the passage of any statute is carefully to scan the aim and purpose of its enactment. The question nat-lu’ally arisep, what was the evil the legislature sought to avoid and suppress, what good to be attained and advanced, by the law under consideration ? Does any one doubt what was the mischief or the remedy in the view of Congress when the section we are considering was passed? This appears-to me transparent. The law allowed parties and interested persons to testify in their own behalf in the Court of Claims against the Hnited States. In practice this was supposed to be mischievous and pernicious. It was supposed to give an undue and unfair advantage to the claimants; the temptation was strong to color their statements too highly in their own favor, and even to fabricate evidence to sustain them claims. This was the mischief. The simple and natural remedy proposed was to exclude this interested evidence of the parties in their behalf. It has this extent, no more. To prevent the United States from using the evidence to defeat the claim never for a moment entered into the contemplation of the persons who framed and passed this statute. It is not within its purpose, intention, or scope. No such mischief existed, and therefore no such remedy was provided. I have shown that the law had quite other and different aims and objects to accomplish. And it should not, therefore, be extended by implication beyond the purpose apparent on its face. We can give full and fair scope and effect to every word and syllable in this section and yet confine it to the exclusion of the testimony of claimants or interested persons, when offered to support the claim.

Had the claimant sat dorvn in the office of the commissioner before whom his testimony was taken, previous to being sworn, and recited over the facts, precisely as he afterwards swore to them, and were reduced to writing by the commissioner, would such a declaration or admission, proved by the commissioner or some other person present, be evidence for the United States ?

If against the interest of the claimant, and distinctly proved, it will scarcely be pretended that it could be excluded. Then how do the facts — that the claimant made solemn oath to the same words, that they were reduced to writing by a sworn and responsible officer as they fell from the lips of the witness *50in bis presence, were carefully read over to him, and were deliberately signed witb his own band — detract from tbeir quality as evidence 1 What solid, sensible reason can there be for such a difference 1 To show the error of the conclusion we need go but one step farther, and hold that the first verbal declaration could not be given in evidence, because it Was afterwards reduced to writing, and of which that writing was the best evidence, and that could not be received because it is in the form of a deposition. This, I submit, instead of making the law the perfection of reason, would make it something entitled to quite a different designation.

With the highest'respect for the opinion of my brethren, I fear that a departure from the plain and obvious meaning of this law, as interpreted by its words, as well as its objects and purposes, may produce inconvenience and confusion, and am therefore compelled to enter my dissent to so much of the ruling as debars the United States from using the deposition of the claimant as an admission or declaration against himself, and to defeat the claim.

The proviso which follows limits and restricts the enactments in the body of the section, but does not extend or enlarge their meaning, application, or effect.' It is to be strictly construed. United, States v. Jackson, 15 Pet., 141.

How much of a deposition is competent under this rule, would depend upon the special facts of each case. The only general rule that could be stated would be that everything contained in the deposition relating to the declaration or admission relied on, or that would tend to modify, restrict, or explain it, must be admitted, received, and construed together. Whether such deposition when thus admitted would be evidence as well for the claimant as for the United States, is a question which does not arise in this motion, and can only be properly ruled when it fairly comes up. I am therefore of opinion—

1st. That testimony heretofore taken either before or since the act of 25th June, 1808, of a claimant cannot be received in support of the claim.

2d. That where such depositions contain declarations or admissions tending to defeat the claim, they may be given in evidence for that purpose by the United States.

3d. That all parts of the same deposition which relate to such *51declarations or admissions, or tend to modify, restrict, or explain them, should be admitted.

4th. Tbe effect to be given to such evidence, when admitted, is to’ be decided by all the facts and circumstances in proof in the particular case.