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U. S. ACT OF MARCH 1865 INTENDED

court to render an incontestably correct decision, he may require the introduction of other direct testimony to make his conclusion irresistibly clear, and to satisfy his judicial conscience. If a court be so inclined, it may, under and by virtue of the concluding terms of the act of 1865, require a party to appear and testify in such a case. Such an act would be but an act of judicial discretion, honestly and fairly exercised; and, therefore, would be strictly compatible with the terms of the act, and entirely conformable to the intent and tenor of the recent legislation in regard to parties as witnesses.

A legislative act is to be interpreted according to the intention of the legislature, apparent on its face; and every technical rule as to the construction or force of particular terms must yield to the clear expression of the paramount will of the legislature. Wilkinson v. Leland et al., 2 Pet. 662.

The intention of the legislature is to be extracted from the whole; 2 Cranch, 358, United States v. Fisher et al., assignees; and the intention of the legislature, when discovered, must prevail; any rule of construction, declared by previous act, to the contrary notwithstanding. 3 Dallas, 365, Brown v. Barry.

Generally, statutes are to be construed to operate in futuro, unless a retrospective effect be clearly intended. 2 Gall., Prince v. United States.

Laws are construed strictly, to save a right or avoid a penalty; and liberally, to give a remedy or effect an object declared by the law. 1 Bald. 316, Whitney et al. v. Emmett et al.

The statute of 1865 is obviously remedial to a certain extent; and as such, should be so construed as to re

TO ENLARGE JUDICIAL DISCRETION.

333

move the evil and advance the remedy. The evil is, the exclusion of witnesses on the ground of interest; the remedy is, to remove the disqualification by admitting persons and parties to testify notwithstanding their

interest in the result of a trial.

The object of the late legislation is plainly to admit parties liberally; and not to exclude, possibly, the best evidence, on the ground of interest solely. Whatever may be extracted from the whole, as the clear intention of the legislator, ought to be steadily adhered to and judicially followed.

The object of the legislation being to discontinue the ancient technical rules of evidence in reference to interest and competency of witnesses; it is plain, that the intention of the legislator, in these various enactments, is to accomplish this express object by a corresponding action, adopted to effect his purpose. That purpose, now become a policy, is to reform the law by liberaliz ing its technical rules. It is a progressive and not retrogressive career and course of policy, in this respect; upon which the State and National legislatures have entered. And if the terms of the enactments express duly the legislative intent, are suited to promote the adopted policy, and effectually accomplish the object and purpose of this enlightened and ameliorated legislation, no judicial construction should be interposed as an impediment. Certainly, there should not be any authentic restoration of the antiquated technical rule of evidence, the abrogation and discontinuance of which has been, of late years, the obvious aim, purpose, and intention of the various legislatures which have taken action upon this subject.

It could hardly be supposed that a judicial interpre

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IN THE U. S. FIRST CIRCUIT, DISCRETION tation would be adopted, which would produce confusion, by rendering nugatory the object and policy of recent legislation as to the competency of parties; or so restricting the power of the Federal courts, as to render that intended to be conferred upon them of no practical value to suitors, parties, or the public.

A first interpretation of a fresh legislative act, unless it be made with a view to promote and not to neutralize or nullify the object, purpose, and intention of the legislature, will tend directly to create the necessity for additional legislation. And if the intent of the legisla ture be manifestly misapprehended or misinterpreted, new and declaratory legislation will become an imperative necessity.

In the United States First Circuit, on November 14, 1868, the court declared an opinion, holding that a party could not be admitted as a competent witness to testify, upon the hearing of a bill in equity to enforce the specific performance of a contract for mutual wills, upon the ground that it was not, by the act of 1865, a matter discretionary with the court; or, if it were so, that it was a discretion to be governed by fixed rules; or, in other words, a legal discretion and not therefore may be supposed a judicial discretion.

it

How far such decision will ultimately be sanctioned by the appellate court at Washington, would be to indulge in an unsatisfactory and possibly useless speculation. It would be mere speculation.

Should the decision be sustained, then a grave question might arise, whether it would equally affect trials in admiralty as in equity. Should it, however, be reversed, then no occasion will exist for modifying or qualifying the doctrine of the text already advanced.

JUDICIALLY DECLINED.

335

The case to which reference is made, is that of Hetty H. Robinson v. Thomas Mandell et al.; and the complainant's evidence was ruled out as incompetent. The court adjudged, that, without her evidence, no sufficient proof had been produced to sustain the allegations of the complainant's bill. It does not, however, positively appear that, with such evidence, the proof would have been sufficient. But if, with her evidence admitted as competent, proof adequate to sustain the material allegations of the bill might have been furnished, then it would seem to constitute just the precise occasion contemplated for the exercise of a reasonable judicial discretion, in requiring, beside the other proofs offered, the additional and direct testimony of the party living, who alone might be cognizant of all the facts and state

ments.

A court ought not to be "left without proof," as Mr. Greenleaf says, if, by its own order, and its own discretion, the necessary proof can be supplied. To prevent a wrong, or secure a right, every instrumentality to such end should be supplemented, if consonant with the principles and policy of the law, and clearly within the legitimate judicial discretion of a court. For, it may well be supposed that, in a case of paramount necessity, when a failure of justice might otherwise occur, no court would decline, or hesitate to resort to, the exercise of its judicial discretion; and, to avert such failure, exhaust its every conceded judicial power.

The exercise of an undoubted discretionary power is ever optional with the court, as to the time or manner of such exercise. But whenever a court elects to resort to it, no artificial rules of practice or evidence can

336 JUDICIAL CONSTRUCTION NOT TO SUPERSEDE LEGISLATION.

restrain it in such election, or inhibit such exercise. If once clothed with such authority, it is imperative on a court not to lay it aside, but to use it. The contrary course would be a dereliction of official duty; and a formal abnegation of admitted power might tend to the practical temporary suspension of some act of the legis lature; whereas the sustaining and enforcement of such acts, is the principal duty, and special province of a judge, in administering and declaring the law.

To reinstate, by judicial construction, therefore, those identical rules of evidence which it has been the obvious design and policy of the legislature to modify or abrogate, would seem to be a palpable irregularity. Any voluntary return, by the courts, to former rules, now abrogated or designed to be, would be in conflict with the existing legislation; and so substitute judicial for congressional legislation.