criminate between the judge's discretionary control over the subject of the questions to be put and the witness' privilege not to answer a question allowably put. Of this privilege (in such jurisdictions as still recognize its validity) it is enough here to recall that it does not apply to facts material to the issue, and that it does not extend to matters merely tending to disgrace, i.e. matters not in themselves disgraceful; and in these respects it differs from the privilege against disclosing self-criminating facts.1

It may be added that the term "scandal,” as indicating matters which a party in equity, when subjected to a bill of discovery, need not answer, is not intended to correspond to the subject of the present privilege of a witness in common-law trials; it designates, by a peculiar distortion of meaning, the privilege against self-crimination.2

§ 2217. (8) Party-Opponent in the Civil Suit at Bar; History and Policy of the Party's Privilege. It is a little singular that the oldest and once the most firmly established of all the privileges should be also the most obscure in its history and precise mode of origin. That the party-opponent in a jury-trial at common law was not compellable to be a witness seems unquestioned, since the beginning of recorded trials, though it is not explicitly stated until the late 1700s. On the other hand, that a party-opponent in chancery was compellable to answer interrogatories under oath, like any witness, is equally clear, from the beginning of systematic chancery-practice.2 The absence of a privilege in chancery is easily explainable; because the Chancellor merely adopted the system of the ecclesiastical Courts, in this as in so many other respects; and the ecclesiastical practice regarded as compellable the party, no less than other persons.3 But why was this not done in common-law trials also? Before the statute of Elizabeth, which virtually created compulsory process for witnesses in jury-trials, it is easy to see that a party-opponent was not compellable to appear; but, after that time, from the middle of the 1500s, why were not parties summoned by subpœna like other desired witnesses, as they were in chancery? It might be thought that, under the then prevailing notions, the party's resort to his own oath, being regarded as an advantage offering too easy a mode of exoneration, the first party would not care to call his opponent, and thus the question would not arise. Yet, if this were the reason, why was there such a common resort to the opponent's compulsory testimony in chancery? There

5

1 The detailed points in which its operation is to be discriminated from the self-crimination privilege are noticed under the latter head (post, § 2255).

For the witness' liability to expose his body, for evidential purposes, see ante, § 2194.

2 1831, Hosmer, C. J., in Skinner v. Judson, 8 Conn. 528, 533 ("The term 'scandal,' that protects a person from making answer, has a meaning limited and technical. Fraud, in the established sense of the word, is not the scandal, but this epithet is applicable to crime only. Notwithstanding the answer of the defendant, by the discovery of a private fraud, may tend to cast great reproach on his conduct and charac

ter, still he is compellable to make answer. But to the scandal and infamy arising from crime, he is never to be accessory by being compelled to make discovery ").

1 Cases cited post, § 2218.

2 Tothill, 71, 85, 145, 146, temp. Eliz., in the end of the 1500s.

3 Langdell, Summary of Equity Pleading, $15.

4 Ante, § 2190.

E. g. in 1590, a judge offers the defendant liberty to speak on oath as a notable and exceptional favor; Udall's Trial, 1 How. St. Tr. 1282. Compare the explanations ante, § 575.

seems to be no certain clue yet discovered to the incongruity, in popular and professional conceptions, of conceding the privilege in one set of trials and ignoring it in the other. We may suppose that in some way, not now appreciable by us, the party's appearance as a witness in jury-trials was regarded as wholly inappropriate, and that his incompetence to testify for himself, which was plainly a fundamental notion (ante, § 575), was somehow associated with a privilege not to be called against himself. Nevertheless, how readily the two might have been severed, even at an early date, and the common-law practice have been grafted with the chancery rule, may be seen from the circumstance that this very measure was taken in Massachusetts by the colonists, two centuries before the general reform of the law in that direction.6

As to the policy of such a privilege, it is amazing that there should have been so long a continuance in its recognition. The very denial of it in chancery, alongside of its recognition at common law, was an anomaly and an absurdity; and this the great commentator himself had long ago pointed.

out:

1768, Sir William Blackstone, Commentaries, III, 382: "The principal defects [of the common-law trial system] seem to be, 1, The want of a complete discovery by oath of the parties. This each of them is now entitled to have by going through the expense and circuity of a court in equity. . . . It seems the height of judicial absurdity that in the same cause between the same parties in the examination of the same facts a discovery by the oath of the parties should be permitted on one side of Westminster Hall and denied on the other; or that the judges of one and the same court should be bound by law to reject such a species of evidence if attempted on a trial at bar, but when sitting the next day as a court of equity should be obliged to hear such examination read and to found their decrees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted or else universally rejected."

It could hardly be doubted which rule would have to yield when such a uniformity as was here recommended should come about. The benighted doctrine of the common-law Courts could not prevail, when the force of reason and common sense was once brought to bear. Yet that force was singularly slow in being put into motion. One cause, of course, was the general inertia of the end of the 1700s in the matter of legal reform, an inertia preserved in part, no doubt, by the general and fulsome laudation of the common law in the pages of the same learned commentator who so cautiously disapproved of this particular feature of it. During that period, whatever progress was made showed itself solely in the realm of silent judicial development of principles, and not in manly legislative abolitions. The energies of the Legislature were absorbed in war and political affairs; moreover, its constitution could have afforded small play for reformers' notions. With the exception

of Fox's Libel Act (which, however, required a contest of twenty years' duration), no substantial improvement was made by statute for a century after Lord Hardwicke's time. After Lord Mansfield's powerful genius left the Bench, in 1788, the reactionaries under Lord Kenyon and Lord Eldon maintained almost unbroken control for more than a generation. But by the Reform Bill of 1832, when the legislative constitution was renovated, room was made for the long pent-up energy of reform. In the next quarter of a century, so many statutes of improvement were enacted that the face of the law was transformed almost beyond recognition. Meanwhile the thunders of Bentham had made it certain that the rules of evidence and procedure would be among the first to feel the effect of the new forces. Some of his arguments on the present subject, which deserved to the full his ironies, are contained in the following passage:

:

1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. IX, pt. IV, c. III (Bowring's ed., vol. VII, pp. 445 ff.): "The question is, not whether a man shall be bound to commence a suit against himself; nor yet whether, without being called (the suit being commenced by any other person), he shall be bound to come and give evidence against himself; but whether, being called, and questions being put to him, he shall be bound to make answer to such questions. . . . Let us now take a more detailed observation of the mischiefs flowing from it. 1. In the first place, in so far as it is to be had, it has already been stated as being (not only upon the face of it, but by the confession of those who, notwithstanding, have been in the habit of excluding it) the very best possible sort of evidence the evidence the most completely satisfactory. . . . 2. Under the distress produced by the exclusion put upon the best evidence, recourse has been had (through a sense of necessity, and that the wound given to justice might not be past endurance) to bad evidence of various descriptions. . . 3. The person whose bosom is the source of self-disserving evidence (the plaintiff, or more commonly the defendant, in the cause) is one person; that person is forthcoming of course. Whatever evidence is extractible from that source, is extractible on the spot, and without addition to the expense. To the list of the uses rendered to justice by this best of all evidence, corresponds the list of the mischiefs produced by the exclusion of it promoting, in two distinguishable ways, misdecision and failure of justice; making a factitious addition to the natural and necessary quantities of delay, vexation, and expense. To these mischiefs may be added another, the opposite of which could not so conveniently have been presented under the head of uses I speak of the poison continually infused by the exclusionary rule into the moral branch of the public mind. . . . 'Hold nothing for base and mean, or, holding your heads high, and speaking in a tone of firmness and defiance, maintain that to practise whatever is most base and mean, is among the Englishman's most honourable privileges. Deny your own handwriting in so many words, or, denying it in deportment as significative as words, refuse or bear to recognize it: deny your written words; and when a question is put to you by words spoken, keep your lips close, lest the truth should make its escape, and justice be done.' Such is the exhortation which the exclusionary rule never ceases to deliver to the people. Such is the lecture delivered by the judge, by every judge, as often

verse, no man has the praise of having effected so much good for his fellow-creatures as Lord Eldon has thwarted" (England under Seven Administrations, I, 219; quoted in Martineau's History of England, III, 425).

8 "For twenty-five long years did Lord Eldon sit in that court, surrounded with misery and sorrow, which he never held up a finger to alleviate. The widow and the orphan cried to

him, as vainly as the town-crier cries when offered a small reward for a full purse; the bankrupt of the court became the lunatic of the court; estates mouldered away, and mansions fell down; but the fees came in, and all was well. But in an instant the iron mace of Brougham shivered to atoms this house of fraud and of delay" (Sydney Smith's Speech on the Reform Bill, 1831, Works, ed. 1869, p. 539).

as he marks with his approbation this flagitious rule. A man who, uninvested with any coercive power, should, in the character of a moral instructor of a schoolmaster, a lecturer, or a divine-stand up and say to his auditors, 'If a man with whom you have a difference happens to have in his hands a letter or memorandum of yours that you apprehend would make against you, deny it, do not own it, put him to the proof of its being yours; and if he is not able, triumph over him as if he were in the wrong'; — if it were possible that a man without power for his protection should take upon him to preach such doctrines, he would be abhorred, and not without reason, as a corrupter of the public morals. What, then, shall be said of those by whom such baseness is not simply recommended, but efficaciously rewarded? Men sow vice, and then complain of its abundance! The same hands which are every day occupied in thus planting and propagating mendacity, are as constantly lifted up against it, and employed in punishing it. . . . The only sort of person to whom it is possible (speaking of suitors) to profit by the pretended tenderness of this rule, is the knavish and immoral suitor, who, being in the wrong, and knowing himself to be in the wrong, avails himself of the inability of the adversary to fulfil the conditions thus wantonly imposed upon him by the law, -avails himself of this misfortune to obtain a triumph over justice. It is for the purpose of rewarding and encouraging the iniquity of one knave of this description, that the useless burthen above delineated is fastened upon the shoulders of perhaps a hundred suitors."

1844, Lord Langdale, M. R., in Flight v. Robinson, 8 Beav. 22, 33: "According to the general rule which has always prevailed in this [chancery] court, every defendant is bound to discover all the facts within his knowledge, and to produce all documents in his possession which are material to the case of the plaintiff. However disagreeable it may be to make the disclosure, however contrary to his personal interests, however fatal to the claim upon which he may have insisted, he is required and compelled, under the most solemn sanction, to set forth all he knows, believes, or thinks in relation to the matters in question. The plaintiff being subject to the like obligation, on the requisition of the defendant in a cross bill, the greatest security which the nature of the case is supposed to admit of is afforded, for the discovery of all relevant truth, and by means of such discovery, this Court, notwithstanding its imperfect mode of examining witnesses, has, at all times, proved to be of transcendent utility in the administration of justice. It need not be observed, what risks must attend all attempts to administer justice, in cases where relevant truth is concealed, and how important it must be to diminish those risks. . . . The arguments which have been used in some late cases, seem (as was observed by the counsel for the plaintiff) to have assumed, that concealment of the truth was, under the plausible names of protection or privilege, an object which it was particularly desirable to secure, forgetting, as it would seem, that the principle upon which this Court has always acted, is to promote and compel the disclosure of the whole truth relevant to the matters in question, and that every exception requires a distinct and sufficient justification."

§ 2218. Same: (a) Testimony on the Stand; Discovery in Chancery; Statutory Changes. In the common-law courts, the party-opponent was not compellable to be a witness at the demand of the other party; this much has never been doubted.1

But in chancery the plaintiff (who might be identical with a defendant in

Compare the arguments in Chief Justice Appleton's work on Evidence, c. V, p. 69.

Besides the cases cited post, § 2222, which assume this principle, are the following: 1779, Cox v. Whalley, 10 East 399, note, semble; 1808, R. v. Woburn, 10 East 395, 403 (L. C. J. Ellenborough: "It is a long-established rule of evidence that a party to the suit cannot be called

upon against his will by the opposite party to give evidence"); 1812, Fenn v. Granger, 3 Camp. 177; 1831, Worrall v. Jones, 7 Bing. 395; 1827, Mauran v. Lamb, 7 Cow. 174, 178. The rule was even carried so far as to entitle one codefendant to exclude the testimony of another: 1844, Frazier v. Laughlin, 6 Ill. 347, 360.

some pending suit at law) was not obstructed by this privilege; by a bill of discovery he could insist on testimonial answers from his opponent:

1836, Lord Langdale, M. R., in Storey v. Lord Lennox, 1 Keen 341, 350: "From the mode of proceeding at common law, a man with the full knowledge of facts which would show the truth and justice of the case may, by concealing those facts within his own breast and merely for want of disclosure or evidence, succeed in recovering a demand which he knows to be satisfied or in resisting a demand which he knows to be just. This conduct is by Courts of equity considered to be against conscience; and they accordingly enable the party in danger of being oppressed by it to obtain from his adversary a discovery of the facts within his knowledge or belief by filing a proper bill for the purpose; and by the general rule the defendant to a proper bill for discovery is bound to make a complete disclosure of everything he knows or believes in relation to the matter in question." 2

The subject of this right of discovery was, nevertheless, limited to the facts which bore upon the plaintiff's own case; he could not compel an answer upon facts affecting solely the opponent's own case. This limitation has been already examined in considering the right to discovery before trial (ante, § 1856); it is enough here to repeat that there is no reason for it, as applied to compelling testimony at the trial itself, nor is it apparently perpetuated under the statutory practice of to-day.

Finally, the common-law rule was abolished, by statutes dating from the second half of the 1800s, and in its stead was granted free scope for compulsory examination of the opponent as a witness. A few of these statutes, indeed, particularly in the Southern States and in special classes of litigation,

2 There was, however, this limitation (due to nothing but a kind of perverse ingenuity), that the defendant in equity could not in turn examine the plaintiff as a witness, but must go to the formality of filing a cross-bill of his own: 1785, Hewatson v. Tookey, Dick. 799, per L. C. Thurlow; repudiating Troughton v. Getley, ib. 382 (1766).

3 Eng. 1851, St. 14 & 15 Vict. c. 99, § 2 (parties made compellable to testify); Can. : B. C. Rev. St. 1897, c. 52, § 124; Man. Rev. St. 1902, c. 40, Rule 387; N. Br. Consol. St. 1877, c. 46, § 2; Newf. Consol. St. 1892, c. 50, Rules of Court 28; N. W. Terr. Consol. Ord. 1898, c. 21, Rules 201-225; N. Sc. Rev. St. 1900, c. 163, § 35; Rules of Court 1900, Ord. 30, Rule 1; Ont. Rev. St. 1897, c. 73, §§ 4, 16; Rules of Court 1897, §§ 439-462, 481; 1898, Fleury v. Campbell, 18 Ont. Pr. 110 (criminal conversation; defendant not compellable to be examined for discovery, under R. S. 1897, c. 73, § 7); P. E. I. St. 1873, c. 22, § 245; U. S.: Ala. Code 1897, §§ 1794, 1850; Ariz. Rev. St. 1901, §§ 2528, 2534; Ark. Stats. 1894, § 2914; Conn. Gen. St. 1887, §§ 1060, 1099 (but no party may compel an opponent both to give discovery before trial and to testify on trial); D. C. Comp. St. 1894, c. 71. § 1; Code 1901, § 1063; Del. Rev. St. 1893, p. 797, St. Feb. 18, 1859; Fla. Rev. St. 1892, §§ 1116, 1117; Ga. Code 1896, §§ 5269, 3954; Haw. Civ. L. 1897, §§ 1396, 1397, 1414; Ill. Rev. St. 1874, c. 51, § 6; Ind. Rev. St. 1897, § 522; Ia. Const. 1857, Art. 1, § 4; Kan. Gen. St. 1897,

c. 95, § 332; Ky. C. C. P. 1895, § 606, par. 10; La. C. Pr. 1894, § 349; Me. Rev. St. 1883, c. 82, § 93; Md. Pub. Gen. L. 1888, Art. 35, § 1; Mass. Pub. St. 1882, c. 167, §§ 49-56, 77, Rev. L. 1902, c. 173, §§ 57-63, 88; Mich. Comp. L. 1897, § 10211; Circuit Court Rules of 1884, Post's ed., rule 48; Minn. Comp. St. 1894, § 5659; 1900, Strom v. R. Co., 81 Minn. 346, 84 N. W. 46 (statute applied); Miss. Annot. Code 1892, §§ 1738, 1762; Mo. Rev. St. 1899, §§ 4654, 8920; Nev. Gen. St. 1885, § 3399; N. H. Pub. St. 1901, c. 224, § 13; 1900, Whitcher v. Davis, 70 N. H. 237, 46 Atl. 458 (statute applied); N. J. Gen. St. 1896, Evidence § 11, Practice §§ 159-166; St. 1900, c. 150, § 7 (re-enacting the terms of Gen. St. Evid. § 11); N. M. Comp. L. 1897, §§ 3017, 3022; N. Y. C. C. P. 1877, § 828; N. C. Code 1883, §§ 580, 1351; N. D. Rev. C. 1895, §§ 5646, 5653; Oh. Rev. St. 1898, § 5243; Okl. Stats. 1893, C. C. P. § 333, Rev. Stats. 1903, C. C. P. § 310; 1898, Re Abbott, 7 Okl. 78, 54 Pac 319 (applying C. C. P. § 333); Pa. P. & L. Dig., Evidence § 22; 1899, Costello v. Costello, 191 Pa. 379, 43 Atl. 240 (abolition of the privilege applies to divorce proceedings); S. C. C. C. P. 1893, §§ 391, 400, Code 1902, §§ 391, 400; S. D. Stats. 1899, §§ 6484, 6491; Tex. Rev. Civ. Stats. 1895, §§ 2271, 2293; Vt. Stats. 1894, c. 66, § 1246; Va. Code 1887, §§ 3345, 3350, 3351, 3359; Wash. C. & Stats. 1897, §§ 6008, 6745; Wis. Stats. 1898, § 4096; Wyo. Rev. St. 1887, $ 2591.