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Prohibition against requiring contributions for political purposes: see sec. 1545, R. S.

Removals from classified civil service for cause: see act of Aug. 24, 1912, ch. 389, sec. 6, 37 Stat. 555.

Solicitation, by certain officers, of political contributions: see the Criminal Code, act of Mar.

EDITORIAL NOTES

An act of May 28, 196, ch. 252, sec. 19, 29 Stat. 184, as amended by act of Mar. 2, 1901, ch. 814, 31 Stat. 956, provi led for the appointment of United States Commissione s by the district court of each judicial district, such commissioner to have the same powers and perform the same duties as commissioners of the circuit courts. It provided, also, that "United States commissioners and all clerks and all deputy clerks of United States courts are hereby authorized to administer oaths."

1876, Aug. 15. Taking, by notaries public, of depositions, acknowledgments and affidavits.

That notaries public of the several States, Territories, and the District of Columbia be, and they are hereby, authorized to take depositions, and do all other acts in relation to taking testimony to be used in the courts of the United States, take acknowledgments and affidavits, in the same manner and with the same effect as commissioners of the United States circuit court may now lawfully take or do.--(19 Stat. 206, ch. 304.)

Circuit courts were abolished and their powers and duties transferred to the district courts by the Judicial Code, act of Mar. 3, 1911, ch. 231, secs. 289-291, 36 Stat. 1167.

This act, with "commissioners of the United States district court" substituted for "commissioners

EDITORIAL NOTES

This provision, which was part of an act making provision for the preparation and publication of a new edition of the Revised Statutes, was expressly amended to read as above by act of Mar. 9, 1878, ch. 26, 20 Stat. 27. Prior to its amendment, it provided that, "when printed and promulgated as herein provided the printed volume shall be legal and conclusive evidence of the laws and treaties therein contained, in all the courts of the United States, and of the several States and Territories".

This provision is summarized in the U.S. Code as a note to sec. 54 of title 1.

CROSS REFERENCE

First edition of the Revised Statutes: see act of June 20, 1874, ch. 333, sec. 2, 18 Stat. 113.

4, 1909, ch. 321, secs. 118 and 122, 35 Stat. 1110, as amended.

CASE NOTE

Character of the 1878 edition.- The second edition is neither a new revision nor a new enactment, but is only a new publication. It is a compilation containing a copy of the original Revised

Solicitation or receipt, in public offices, of political contributions: see the Criminal Code, act of Mar. 4, 1909, ch. 321, secs. 119 and 122, 35 Stat. 1110.

1877, Mar. 2. Second edition of the Revised Statutes.7

Sec. 4. *** when printed and promulgated as herein provided the printed volume shall be legal evidence of the laws therein contained, in all the courts of the United States, and of the several States and Territories, but shall not preclude reference to, nor control, in case of any discrepancy, the effect of any origfal act as passed by Congress since the first day of December, eighteen hundred and seventy-three, --(19 Stat. 269, ch. 82; 20 Stat. 27, ch. 26.)

of the United States circuit court", is embodied in the U.S. Code as sec. 642 of title 28.

CROSS REFERENCES

Authority of notaries public and other State officers to administer oaths made under Federal laws: see act of July 3, 1926, ch. 752, 44′ Stat.

830.

Notaries public of the District of Columbia: see act of Mar. 3, 1901, ch. 854, sec. 558, 31 Stat. 1279, as amended.

Taking or making, by notaries public or commissioners, of oaths or acknowledgments: 1778, R.S., as amended.

see sec.

Statutes, like the first edition, with certain
specific alterations and amendments made by subse-
quent enactments of the Forty-third and Forty-
fourth Congresses, incorporated according to the
judgment and discretion of the editor, under auth-
ority of the law providing for his appointment
(Act March 2, 1877, ch. 82, 19 Stat. L., 268). The
editor had no power to change the substance or alter
the language of the revision, nor to correct any
errors or supply any omissions. The whole text of
the Revised Statutes, as published in the first
edition, is preserved; but where by the specific
mendments made by the two Congresses mentioned, sec-
tions or parts of sections were repealed, those re-
pealed provisions are printed in italics and included
in brackets; and where, in like manner, by legis-
lative enactment, words were required to be added or
inserted, they are incorporated in their proper
places in ordinary Roman letters, and are also in-
closed in brackets." (Wright v. United States, 15
Ct. Cls. 80, 87-88, Dec. Term, 1879.)

1877, Mar. 3. Penalty mail privilege./

Sec. 5. That it shall be lawful to transmit through the mail, free of postage, any letters, packages or other matters relating exclusively to the business of the Government of the United States: Provided, That every such letter or package to entitle it to pass free shall bear over the words "Official business'

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an endorsement showing also the name of the Department, and, if from a bureau or office, the names of the Department and bureau or office, as the case may be, whence transmitted.--(19 Stat. 335-336, ch. 103; 35 Stat. 1155, ch. 321.)

EDITORIAL NOTES

As originally enacted, this section contained a provision which made it a misdemeanor, punishable by 2 fine of three hundred dollars, to make use of any such official envelope to avoid the payment of postage on a private letter, package, or other matter in the mail. This provision was repealed by act of Mar 4, 1909, ch. 321, sec. 341, 15 Stat. 153-1159, and was replaced by sec. 227 of the same act.

This section, as amended, and several related enactments are embodied in the U.S. Code as sec. 321 of title 39.

This seotion and the next section of the same act were extended to all officers of the United States, except members of Congress, by act of Mar. 3, 1879, ch. 180, sec. 29, 20 Stat. 362, which also contained other provisions relating to the Postal Service. Sec. 29 of the act of Mar. 3, 1879, supra, was expressly amended and reenacted by, act of July 5, 1884, ch. 234, sec. 3, 23 Stat. 158.

Regulations relating to the penalty-mail privilege are contained in U.S. Navy Regulations, 1920, and Gen. Order No. 24, May 13, 1935.

CROSS REFERENCES

Fraudulent use of official envelopes: see the Criminal Code, act of Mar. 4, 1909, ch. 321, sec. 227, 35 Stat. 1134.

Lending or permitting use of frank: see act of June 26, 1906, ch. 3545, 34 Stat. 477.

see

Limitation as to penalty mail privilege: act of June 26, 1906, ch. 3546, 34 Stat. 477; act of May 18, 1916, ch. 125, sec. 11, 39 Stat. 162; and act of May 6, 1939, ch. 115, sec. 6, 53 Stat. 683684, as amended.

Penalty mail privilege: see act of Mar. 3, 1879, ch. 180, sec. 29, 20 Stat. 362, as amended.

Postal arrangements with foreign countries: see sec. 398, R.S., as amended.

EDITORIAL NOTES

This section and several related enactments are mbodied in the U.S. Code as sec. 321 of title 39.

This section and the preceding section of the same act were extended to all officers of the United States, except members of Congress, by act of Mar. 3, 1879, ch. 180, sec. 29, 20 Stat. 362, which also contained other provisions relating to the Postal Service. Sec. 29 of the act of Mar. 3, 1879, supra,

Reports of mail transmitted under penalty mail privilege: see act of May 6, 1939, ch. 115, sec. 6, 53 Stat. 693-684, as amended.

Transmission of letters of soldiers, sailors and marines: see act of Mar. 3, 1879, ch. 180, sec. 9, 20 Stat. 358-359.

Utilization of penalty mail privilege: see act of June 28, 1944, ch. 293, 58 Stat. 394-395.

CASE NOTES

Scope and operation of statute.- The use of the official envelopes is limited to the Executive Departments, and the bureaus or offices therein, at the seat of Government. (15 Op. Atty. Gen. 262, May 16, 1877. See also 17 Op. Atty. Gen. 255, 256, Jan. 10, 1882.)

On

"Section 5 of the act of March 3, 1877, indicates no intention on the part of Congress to restrict the penalty privilege to classes of mail matter existing at the time of its enactment. the contrary, it refers in terms to 'any letters, packages, or other matter relating exclusively to the business of the Government.' This language is plainly broad enough to cover any class thereafter established, or any change in the weight limit of an existing class, unless the act creating the new limit or classification should restrict the scope of section 5 by excluding the Government, expressly or by necessary implication, from the exercise of the franking privilege under the conditions thereby created." (30 Op. Atty. Gen. 112, 116, Feb. 28, 1913.)

1877, Mar. 3. Endorsement on official envolopes.7

Sec. 6. That for the purpose of carrying this act into effect, it shall be the duty of each of the Executive Departments of the United States to provide for itself and its subordinate offices the necessary envelopes: and in addition to the endorsement designating the Department in which they are to be used, the penalty for the unlawful use of these envelopes shall be stated thereon.--(19 Stat. 336, ch. 103.)

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was expressly amended and reenacted by act of July 5, 1884, ch. 234, sec. 3, 23 Stat. 158.

CROSS REFERENCES

Fraudulent use of official envelopes: see the Criminal Code, act of Mar. 4, 1909, ch. 321, sec. 227, 35 Stat. 1134.

Procurement of envelopes: see act of June 26, 1906, ch. 3546, 34 Stat. 476; and act of June 7, 1924, ch. 303, 43 Stat. 592.

1877, Mar. 3. Lease of buildings in District of Columbia./

Hereafter no contract shall be made for the rent of any building, or part of any building, to be used for the purposes of the Government in the District of Columbia, until an appropriation therefor shall have been made in terms by Congress, and that this clause be regarded as notice to all contractors or lessors of any such building or any part of building.--(19 Stat. 370, ch. 106.)

EDITORIAL NOTES

This provision is embodied in the U.S. Code as sec. 34 of title 40.

A somewhat similar provision was contained in an act of June 22, 1874, ch. 388, 18 Stat. 133, 144.

Provisions relating to the making of reports to Congress respecting the leasing of buildings in the District of Columbia for the use of the Government were included in the following enactments: act of Mar. 3, 1883, ch. 128, 22 Stat. 531, 552; act of July 16, 1892, ch. 196, 27 Stat. 183, 199; act of May 1, 1913, ch. 1, sec. 3, 38 Stat. 3; and act of May 29, 1920, ch. 214, sec. 7, 41 Stat. 591. They were repealed by the first section of an act of May 29, 1928, ch. 901, 45 Stat. 986-996.

Detailed instructions relative to the execution of leases, licenses and permits are contained in Gen. Order No. 138, Nov. 26, 1940.

CROSS REFERENCES

Contracts or purchases in excess of appropriations: see act of June 12, 1906, ch. 3078, 34 Stat. 255.

Expenditures or contracts in excess of appropriations: see sec. 3679, R.S., as amended.

Lease of buildings in District of Columbia: see act of Aug. 5, 1882, ch. 389, 22 Stat. 241.

CASE NOTES

In general.- "If an officer, upon his own responsibility and without the authority of Congress, assumes to bind the Government, by express

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1878, Mar. 16. Competency of accused as witness.

That in the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.--(20 Stat. 30-31, ch. 37.)

Protection against compulsory self-incriminasee the Constitution, Fifth Amendment.

Protection against double jeopardy: see the Constitution, Fifth Amendment.

CASE NOTES

In general.- "At common law no one accused of crime could be compelled to give evidence in a prosecution against himslef, nor was he permitted to testify in his own behalf. The accused might rely upon the presumption of the law that he was innocent of the charge, and leave the government to establish his guilt in the best way it could.

"This rule, while affording great protection to the accused 'against unfounded accusation, in

or implied contract, to pay a sum in excess of that
limited by Congress for the purposes of such a con-
tract, the contract is a nullity, so far as the
Government is concerned, and no legal obligation
arises upon its part to meet its provisions."
(Hooe v. United States, 218 U.S. 322, 334, Nov. 28,
1910. See also: 16 Comp. Gen. 282, Sept. 21, 1936;
16 Comp. Gen. 941 Apr. 19, 1937.)

"The limitation upon the authority to impose contract obligations upon the United States is as applicable to contracts by implication as it is to those expressly made.". (Sutton, Trustee v. United States, 256 U.S. 575, 580, June 1, 1921. Compare: Semmes and Barbour v. United States, 26.Cls. 119, 129-130, Jan. 12, 1891; Rives et al. v. United States, 28 Ct. Cls. 249, 252, Apr. 3, 1893.)

Scope and operation of statute.The law we have been considering is a re-enactment of a former law of the United States, (Stat. of 1874, chap. 388,) and the legislative power has most strongly indicated its intention that no building should be rented, not actually in use by the Government, until an appropriation therefor shall have been made in terms." (15 Op. Atty. Gen. 274, 276, May 18, 1877. See also: 17 Op. Atty. Gen. 87, May 13, 1881; 27 Op.Atty. Gen. 270, Apr. 6, 1909.)

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This provision is not limited in its application to the renting of buildings or parts of buildings for occupancy by regular officers of the executive departments and independent establishments but is applicable to their field offices in the District of Columbia. (2 Comp. Gen. 722, May 8, 1923. See also 6 Comp. Gen. 685, Apr. 20, 1927.)

many cases deprived him from explaining circumstances
tending to create conclusions of his guilt which he
could readily have removed if permitted to testify.
To relieve him from this embarrassment the law was
passed. In mercy to him, he is by the act in ques-.
tion permitted upon his request to testify in his
own behalf in the case. In a vast number of in-
stances the innocence of the defendant of the charge
with which he was confronted has been established.
"But the act was framed with a due regard also
to those who might prefer to rely upon the presump-
tion of innocence which the law gives to every one,
and not wish to be witnesses. It is not every one.
who can safely venture on the witness stand though
entirely innocent of the charge against him. Ex-
cessive timidity, nervousness when facing others
and attempting to explain transactions of a sus-
picious character, and offences charged against him,
will often confuse and embarrass him to such a de-
gree as to increase rather than remove prejudices
against him. It is not every one, however honest,
who would, therefore, willingly be placed on the
witness stand. The statute, in tenderness to the
weakness of those who from the causes mentioned

might refuse to ask to be a witness, particularly when they may have been in some degree compromised by their association with others, declares that the failure of the defendant in a criminal action to request to be a witness shall not create any presumption against him.". (Wilson v. United States, 149 U.S. 60, 65-66, Apr. 17, 1893. See also Wolfson v. United States, 101 F. 430, Apr. 10, 1900, cert. den., 180 U.S. 637, Jan. 14, 1901.)

"This statute in terms makes a defendant a competent witness. The statute does not say 'a competent witness for himself'. It does not say 'a competent witness for the government'. He is made simply 'at his own request, but not otherwise, a competent witness. It would clearly be improper for the government, while he was on trial, in the absence of a request on his part, to call him as a witness. The purpose of the law was to make defendants competent witnesses, but at the same time preserve to them the right to remain silent without prejudice. When any defendant chooses to testify, the statute permits him to do so. It does not matter whether his testimony is for or against himself, or for or against his co-defendant. The only limitation in the statute is that he shall not be made a witness except on his own request. Being sworn as a witness at his own request, he is amenable, generally, to the rules governing other witnesses. He could testify against or for his co-defendant on trial with him, because the only reason why he could not do so at common law was that he was a party to the record, and interested in the case. In other words, the only common-law reason for his exclusion was that he was a defendant also on trial. The statute clearly removes that objection." (Wolfson v. United States, 101 F. 430, 436, Apr. 10, 1900, cert. den, 180 U.S. 637, Jan. 14, 1901.)

that

"It was not until March 16, 1878, persons charged with crime in the courts of the United States were made competent witnesses in thei own behalf. Thus for nearly a century the commonlaw disqualification obtained as to persons charged with crime.". (Maxey v. United States, 207 F. 327, 330, July 23, 1913.)

"In the courts of the United States, and in those of Pennsylvania, the disability of a defendant to testify in a criminal case has been removed by statute. These statutes, are in his interest solely. He may stand mute, or testify, as he will. This right does not arise under the Constitution, but under the statutes, which remove his disability. Before they were passed he could not be compelled to testify adversely to his own interest, because he was not competent to testify at all. The disability continues, unless he chooses to waive it. The prosecution cannot even ask him to be sworn, as this would compel him to make choice in the presence of the jury, which might tend to prejudice his rights.' (United States v. Wetmore, 218 F. 227, 233-234, Nov. 24, 1914.)

Comment on the failure of accused to testify.This statute restrains both court and counsel from comment upon the failure of the accused to testify. (Stout v. United States, 227 F. 799, Nov. 15, 1915. See also Nobile v. United States, 284 F. 253, Sept. 23, 1922.)

"The rule that the prosecution shall not comment on the failure of the accused to testify should not prevent an argument that the evidence of the government is uncontradicted or unexplained." (Carlisle v. United States, 194 F. 827, 830, Feb. 7, 1912. See also: Rosa et al. v. United States,

227 F. 357, Sept. 21, 1915; Slokoff v. United States, 8 F.2d 9, Sept. 29, 1925; Hood v. United States, 59 F.2d 153, May 21, 1932.)

It is only objectionable to comment upon the failure of the defendant personally to testify; and if at the close of the whole case any given point stands uncontradicted, such lack of contradiction is a fact, an obvious truth, upon which counsel are entirely at liberty to dwell.". (Lefkowitz et al. v United States, 273 F. 664, 658, May 11, 1921. See also Baker et al. v. United States, 115 F.2d 533, 544, Vov. 20, 1940, cert. den., 312 U.S. 692, Feb. 17, 1941, rehng. den., Mar. 3, 1941.)

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"That prosecutor mentioned defense attorney's failure to call other witnesses, if any, to explain defendant's possession of stolen property did not make the argument objectionable as commenting on defendant's failure to testify in his own behalf. (Gargotta v. United States, 77 F.2d 977, May 10, 1935.)

The reference of the judge advocate of a courtmartial, in his closing remarks, to the fact that the accused failed to take the stand as a witness in his own behalf is improper and contrary to the spirit of the act of Mar. 16, 1878, ch. 37, 20 Stat. 30-31. But where the proofs of guilt are so clear and conclusive that the cause of the accused could not have been harmed by such reference, the proceedings need not be set aside. (File 26251-14575, March, 1918, C.M.O. 30-1918, p. 19. See also File 26262-11771A, July 9, 1925, C.M.O. 8-1925, p. 5.)

Status of accused party on witness stand. "Where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and makes his own statement, it is clear that the prosecution has a right to cross-examine him upon such statement with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts." (Fitzpatrick v. United States, 178 U.S. 304, 315, May 28, 1900. See also Sawyer v. United States, 202 U.S. 150, 165-165, Apr. 30, 1906.)

* * *

⭑ * ⭑

"The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be crossexamined as to the facts in issue. He may be examined for the purpose of impeaching his credibility. *** His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may be the basis of adverse inference, and the jury may be so instructed. *** His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing. (Raffel v. United States, 271 U.S. 494, 496497, June 1, 1926. See also: Edwards v. United States, 18 F.2d 402, Mar. 22, 1927; Brown v. United States, 56 F.2d 997, Mar. 14, 1932.)

11,

"When ✶ ✶ ✶ the defendant in a criminal trial in a United States court takes the stand as a witness in his own behalf, he does so at his own election, and, by the federal practice, as a witness he becomes subject to all the rules and tests applicable to any other witness, and to test his credibility

he may be interrogated as to all matters affecting
his credibility. He may be impeached, like any other
witness, by proving that he has been convicted of a
felony; ***.". (Gordon v. United States, 254 F.
53, 54, Oct. 24, 1918.)

"In testifying, a defendant subjects himself to the same liabilities and is entitled to the same privileges as other witnesses. (Beyer v. United States, 282 F. 225, 227, July 14, 1922.)

"We conclude that, when a defendant in a criminal case voluntarily becomes a witness in his own. behalf, he subjects himself to cross-examination and impeachment to the same extent as any other witness in the same situation, but he does not subject himself to cross-examination and impeachment to any greater extent." (Tucker et al. v. United States, 5 F.2d 818, 822, Mar. 26, 1925.)

"The law has long been settled that evidence of the commission of one crime cannot be used to *** To prove the defendant committed another. this rule there are exceptions, for instance, when two offenses are inseparably connected and evidence of the first tends directly to prove the second.

The rule against the admissibility of evidence

EDITORIAL NOTES

This paragraph was amended by a provision of an act of Mar. 3, 1883, ch. 97, 22 Stat. 472, which had the effect of changing the title of "master" to "ljeutenant, junior grade". In this connection, see Schuetze v. United States, 24 Ct. Cls. 299, 303, Apr. 1, 1889.

1878, May 4. Detail of officers as secretaries and clerks at sea.7

That on and after the first day of July, eighteen hundred and seventy-eight, there shall be no appointments made from civil life of secretaries or clerks to the Admiral, or Vice-Admiral, when on sea service, commanders of squadrons, or of clerks to commanders of vessels; and an officer not above the grade of lieutenant shall be detailed to perform the duties of secretary to the Admiral or Vice-Admiral, when on sea service, and one not above the grade of master to perform the duties of clerk to a rear-admiral or commander, and one not above the grade of ensign to perform the duties of clerk to a captain, commander, or lieutenant-commander when afloat.--(20 Stat. 50, ch. 91.)

EDITORIAL NOTES

The omitted part of this section repealed part of sec. 5 of an act of June 20, 1874, ch. 328, 18 Stat. 110-111.

So much of the last sentence as precedes the proviso was superseded by a provision of an act of July 7, 1884, ch. 334, 23 Stat. 236, 254.

of one crime to prove another is equally applicable
whether the evidence is elicited from witnesses for
the prosecution or from the defendant himself. But
when the defendant takes the stand in his own
defense, he offers himself as a witness and, like all
witnesses, submits himself to attack as to his cred-
ibility. For this purpose alone he may be asked,
and be compelled to answer questions as to the fact
of previous convictions. And in this way his test-
imony may lawfully be weakened." (Weiner v. United
States, 20 F.2d 522, 523, July 1, 1927.)

This section was amended by the Budget and Accounting Act, 1921, approved June 10, 1921, ch. 18, title III, 42 Stat. 23-27. Sec. 301 of that act created the General Accounting Office as an establishment independent of the executive departments and under the control and direction of the Comptroller General of the United States; and sec. 304 vested in and imposed upon the General Accounting Office, in so far as not inconsistent with said act, all powers and duties conferred or imposed by law

"The common-law disability of an accused as a witness in his own behalf was removed by statute, 28 U.S.C.A. § 632. The act does not limit the scope of the testimony or restrict its effect. It simply provides that he shall be competent to testify at his own request, but not otherwise. His testimony is not different from that of any other witness. It may be considered on any issue as to which it is material; and it has the probative value, of that of any other witness, subject only to the duty of the jury to consider the circumstances in which it is given and the source from which it emanates. (Freeman v. United States, 96 F.2d 13, 15, Apr. 14, 1938, cert. den., 305 U.S. 596, Oct. 10, 1938.)

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1878, June 14. Examination of claims under exhausted appropriations; reports to Congress.

Sec. 4. ***. And it shall be the duty of the several accounting-officers of the Treasury to continue to receive, examine, and consider the justice and validity of all claims under appropriations the balances of which have been exhausted or carried to the surplus fund under the provisions of said section that may be brought before them within a period of five years. And the Secretary of the Treasury shall report the amount due each claimant, at the commencement of each session, to the Speaker of the House of Representatives, who shall lay the same before Congress for consideration: Provided, That nothing in this act shall be construed to authorize the re-examination and payment of any claim or account which has been once examined and rejected, unless reopened in accordance with existing law.--(20 Stat. 130, ch. 191.)

This paragraph, as amended, is embodied in the U.S. Code as sec. 112 of title 34.

Information relating to the grades of Admiral and Vice Admiral is contained in notes under secs. 1362 and 1466, R.S.

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