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remove that doubt, and to require that the rule of decision, not only in trials at common law, but in equity and admiralty, should be the same in the Federal courts as in the State courts. The obvious purpose of the provision was to introduce more fully into the Federal courts the rules of decision, in respect to all matters of property and local interest, which prevailed in the State courts, and to bring the several courts of the Federal and State governments into a more uniform and harmonious course of decision upon all such subjects. The next provision in the acts of Congress was that passed on the 2d of July, 1865, which was, 'that in the courts of the United States there shall be no exclusion of any witness on account of color, nor, in any civil actions, because he is a party to or interested in the issue tried.' — 13 Stat. at Large, 351. The immediate effect of the provision that no witness should be excluded in a civil action because he was a party to or interested in the issue tried, was to introduce diversity into the rules of decision in the Federal courts, as compared with the rules of decision prevailing in the State courts in the same district, as will be seen by reference to the Statutes of this State. Provision was made by the General Statutes of this State (c. 131, § 14), that parties in civil actions and proceedings ... shall be admitted as competent witnesses for themselves or any other party, . . . provided that, where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party shall not be admitted to testify in his own favor unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator. — Gen. Stat. (Mass.) 673. Certain exceptions are made in subsequent acts of the legislature, but they are not material in this case. — See St. 1864, c. 304, § 1- Supp. to Gen. Stat. p. 361. Also St. 1865, c. 257, S8 1 and 2- Supp. to Gen. Stat. p. 407. Like diversities were introduced by the last two clauses of that provision into the rules of decision in the Federal courts of many other districts, as compared with the rules prescribed for the State courts in the same district by the State legislature, but it is unnecessary to enter into such details. Congress became aware of the embarrassment, and on the 3d of March, 1865, passed an amendatory act providing that 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. – 13 Stat. at Large, 533. The material words of the provision to be considered in this case are, that neither party shall be allowed to testify against the other in the cases and under the circumstances therein described, unless ' required to testify thereto by the court,' as it is not pretended that the complainant was called to testify thereto by the opposite party. Strictly construed, the petition of the complainant did not pray that she might be required by the court to testify in the case as to any transaction with or statement by the testatrix; but as the prayer was that an order might be passed that she might be allowed to testify generally as a witness, no exception was taken to the form of the petition, and the order as recited was passed, reserving to the court the right to determine the questions involved in the petition at the final hearing of the case. The views of the respondents at the time the petition was presented and at the final hearing were, that, by the true construction of the phrase unless required to testify thereto by the court,' it only had the effect to save from the operation of the prohibition, that neither party should be allowed to testify, the power vested in the court when sitting as a court of equity to admit parties to be examined in certain cases, as universally acknowledged and frequently practised in equity courts. Stated in other words, the proposition of the respondents is that the act of Congress in question does not authorize the examination of the complainant in any case where it was not allowed in the practice of chancery courts before that provision was passed. They contend that the exception, 'unless required to testify thereto by the court,' means nothing more than if it read, ' unless required to testify thereto by the court, in accordance with equity practice.' Interest undoubtedly disqualifies a witness in an equity suit as well as in actions at law, unless it is otherwise provided by statute. - Gresley Eq. Ev. 237; 2 Daniel Chan. Prac. (3d ed.) 885; 1 Smith Chan. Prac. 343; Eckford v. De Kay, 6 Paige, 565; De Wolf v. Johnson, 10 Wheat. 367. Leave may be granted to examine a party, on motion, if the motion is accompanied by an affidavit showing that he is not interested; but the order is never granted without saving all just exceptions for the benefit of the opposite party, - Gres. Eq. Ev. 338; 2 Daniel Chan. Prac. (3d ed.) 886; Diron v. Parker, 2 Ves. Sen. 219; Murray v. Shadwell, 2 Ves. & B. 401; Phillips v. Duke of Bucks, 1 Vern. 227; Rogerson v. Whittington, 1 Swanst. 39. Based on these authorities, the argument for the respondents is, that the only effect of the last exception in that act of Congress is that it reserves to the Federal courts the power which they possessed before, as courts of equity, to require or allow a party not interested to testify in the case; but the court is of a different opinion, as the provision is general and applicable as well to the District Court as to the Circuit Court, and in common law actions as well as in suits in equity. Cases have seldom or never before occurred where the right of a party to introduce evidence in support of the cause of action set forth in his pleading depended in any manner upon the discretion of the court; but if Congress sees fit to make such a provision, the court is of opinion that it is the right of a party to present such an application, and that it is the duty of the court to hear and determine it whenever it is made in due form. be serious. Two of the judges cultivate large farms, and may be said to be retired lawyers, who hold the judicial position from love of its duties, and as a relief from the monotony of agricultural life. Another judge divides his time between the bench and the vineyard. Other judges have also other means of support, and on the whole, perhaps, the cause of justice does not suffer so greatly in Michigan as one might reasonably be led to anticipate.

"Such an application is doubtless addressed to the discretion of the court, but it is a legal discretion; and our opinion is that the court, in granting or refusing the application, ought to be governed as far as practicable by certain fixed rules, to be applied in all similar cases. Intrinsic difficulty, it is apprehended, may arise in every attempt to define such general rules, and perhaps it would be unwise to make any such attempt, except when an application is before the court calling for the decision of the court under the power conferred by the act of Congress. New as the provision is, and called upon as the court is for the first time to determine its true meaning, the court is not disposed to go one step beyond what the necessities of the present case require. Viewed as a whole, the several acts of Congress in relation to the competency of witnesses indicate an intent on the part of Congress so to legislate that the evidences of title to real estate, and the rules of decision in all controversies affecting rights of property, shall be the same in the Federal courts as in the State courts of the same State and district, and the decisions of the Supreme Court throughout the period since its organization tend strongly to the same end. Impressed, also, with the conviction that that course of legislation and of decision has been highly beneficial, we are of the opinion that the court ought not to grant such an application, under the pro vision in question, in any case where the effect of granting it would be to adopt a rule of decision in the Federal courts of the district different from that which the legislature of the State has prescribed for the government of the State courts in all similar cases. Where an executor or administrator is a party, the other party, under the law of the State, cannot be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify; and this court decides that in such a case the court will not pass an order in a controversy respecting property requiring the living party to testify in his own favor to any transaction with or statement by the testator or testatrix, intestate or ward, as the case may be. Obviously the case at bar falls within that rule, and the decision of the court is, that the complainant is not a competent witness in this case to testify to any transaction with or statement by the said testatrix, and that all such parts of her deposition as fall within that rule are rejected as inadmissible."



UNITED STATES DISTRICT Court. — Ex parte Hewitt & Mcllwaine. In this case the following important decision on the powers of military commissions under the Reconstruction Acts was pronounced by the Hon. R. A. Hill, District Judge. The facts are sufficiently stated in the opinion.

"From the allegations made in the petition in this cause, and the return made thereto by John R. Hynes, Superintendent of the Penitentiary of the State of Mississippi, to whom the writ was directed, the following facts appear out of which the questions now submitted for the determination of the court arise. The petitioners were arrested and put upon their trial before a military commission appointed for the trial of offenders by Major General A. C. Gillem, commanding this district. The specifications and charge upon which they were put upon their trial are substantially as follows: “That said petitioners, with others, citizens of Natchez, in the State of Mississippi, in the county of Adams, in said State, on or about the 19th day of July, 1868, did unlawfully, maliciously, and feloniously conspire and combine together to kill and murder one George Stewart, a teacher of a school for colored children, and, in pursuance of said agreement and conspiracy, did proceed to the house of said Stewart, and by false pretences induced him to leave his house, and did then and there order him to reveal the password of a secret association called the “Loyal League,” and, upon said Stewart's refusing to do so, did pour about one gallon of coal oil or turpentine on his head and body, and did order him to kneel down and say his prayers, that he had but a few minutes to live; that said Stewart escaped from them, when they fired at him with a pistol, with intent then and there to kill and murder said Stewart.'

“ That, after the testimony on said trial had been heard by said commission, the commission found from the proof that said acts were committed, but were not committed with the intent to kill and murder said Stewart, but with intent to outrage and injure him, and for this offence the petitioners were sentenced to hard labor in the penitentiary of this State for the term of one year, which sentence was approved by the commanding general, and in pursuance to which they have been placed in said penitentiary, in the custody of the superintendent, John R. Hynes. To be discharged from such custody and punishment is the purpose of this application.

The petitioners by their counsel concede the jurisdiction and power of the commanding general, when in his opinion a fair and impartial trial of offenders cannot be had, and the offenders punished by the local courts, to cause them to be arrested, tried, and, if found guilty, punished by a military tribunal ; but insist that they must be judged by the laws in force in the State, and can only be subject to the punishment prescribed by those laws, although the mode of trial may not be required to conform to the forms prescribed by the State laws, and insist that the punishment inflicted in this case is unknown to any law of the State for the offence of which they were found guilty, and is not authorized by the act of Congress empowering the military commander to protect the citizens in their persons and property, and to secure the citizens in their persons and property, for which purpose he is directed and authorized to cause offenders to be arrested and punished, and further insist that this court has the power and should discharge the petitioners.


"The counsel for the respondent, not conceding that the sentence is illegal, insists that, if it were so, this Court having no appellate jurisdiction to review and reverse the action of the military tribunal, has no jurisdiction to discharge the petitioners. Two questions are thus presented : 1st, Is the sentence thus pronounced, and which is being executed, authorized by the act of Congress conferring this quasi civil jurisdiction upon the military commander ? and, 20, If such power was not conferred, and the sentence authorized, has this court the power to relieve the petitioners from such unauthorized punishment ?

"I am satisfied from a careful examination of the Act of Congress that the only purpose was to secure all classes of citizens in their rights of persons and property under the laws of the State, whether created by statute or arising out of the common law, and to this end to secure a certainty of punishment on those who might violate the laws; that it was not intended to create any new law for the punishment of crime, but to secure the enforcement of those then existing, and for this purpose their execution was authorized to be committed to the local courts then and now existing, and which were declared to be provisional only, unless that when, in the opinion of the commander, a fair and impartial trial could not be had, and the punishment of the guilty secured in such courts, he might, and it would be his duty to order military commissions or tribunals to convene and try the offenders, and, if found guilty, cause them to be punished; and whilst the mode of proceeding might and necessarily would vary from those pursued in the courts of the State, that the party charged should only be required to answer a violation of some known law in force in the State, and that only such punishment should be inflicted as was annexed to the law for its violation. The act itself, to secure this end, provides that no cruel or unusual punishment shall be inflicted. Congress in this was governed by that which experience has long demonstrated, that certainty in punishment, more than severity, prevents crime. This brings us to the consideration of the question as to what the crime or offence is of which the petitioners have been found guilty, and what is the punishment annexed by law therefor.

The petitioners' counsel insist that it is only a conspiracy to commit a crime; that they have been acquitted of any crime or offence the punishment of which is confinement in the penitentiary. That the conspiracy of which they were found guilty is not embraced in the one charged, and therefore no punishment could have been inflicted. This position has been pressed by the learned counsel with great earnestness and ingenuity, but has failed to produce on my mind a conviction of its correctness.

“ The charge and specifications are to be considered in place of an indictment, and constitute but parts of the same indictment, and, when viewed in that light, charge that these petitioners with others did unlawfully assemble, combine, and agree to kill and murder said Stewart, and, in pursuance of that unlawful agreement, did feloniously and maliciously assault said Stewart with intent then and there to kill him. This charge, if true, would constitute a felony under the provisions of the 18th art. § 8, and c. 14 of the Code of 1857, then in force in this State, and the punishment of which is, by the same act, fixed at confinement at hard labor in the penitentiary for a period not to exceed ten years. The commission, sitting in place of a jury, have acquitted the petitioners of the felonious intent to kill and murder, but have found them guilty of an assault with intent to outrage and injure.

“It is conceded by counsel that if the offence charged is a felonious assault, it contains the less offence of a misdemeanor, and that the party charged may be acquitted of the higher crime and yet found guilty and punished for the smaller offence. But if the offence charged were only the unlawful assembly and conspiracy to commit

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