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8 Funk ve. Umied States. however opposed, in principle, to the general current of legislation and of judicial opinion, it may have become, leaving to Congress the responsibility of changing it. Of course, Congress has that power; but if Congress fail te act, ag it haa failed in re- spect of the matter now under review, and the court be called upon to decide the question, :4 it mot the duty of the court, if i possess the power, to decide it in accordance with present day standards of wisdom and justice rather than in accordance wit, some outworn and antiquated rule of the pastf That this court has the power to do so is necessarily implicit in the opinions delivered in deciding the Benson and Rosen cases. And that implication, we think, rests upon substantial ground. The rule of the common law which denies the competency of one spouse to testify in behalf of the other in a criminal prosecution has not been modified by congressional legislation; nor has Congress di- rected the federal courts to follow state law upon that subject, as it has in respect of some other subjecta. That thia court and the other federal courts, in this situation and by right of their own powers, may decline to enforce the ancient rule of the common law under conditions as they now exist we think is not fairly open to doubt. In Hurtado v. California, 110 U. 8. 516, 530, this court, after suggesting that it was better not to go too far baek into antiquity for the best securities of our liberties, said: “Tt is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and in- dividyal right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modern ideas of self-government. “This flexibility and capacity for growth and adaptation ts the peenliar boast and excellence of the common law. , and | as it was the characteristic principle of the cominon law to draw its inspiration fram every fountain of pastize, we are not to assume that the sources of its supply have been ex- havsied. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.” Compare Hoiden v. Hardy, 169 U. 8. 366, 385-387. a Funk ve. United States. 9 To concede this capacity for growth and change in the common law by drawing ‘‘its inspiration from every fountain of justice,’ and at the same time to say that the courts of this country are forever bound to perpetuate such of its rules as, by every reason- able test, are found to be neither wise ner Just, because We have once adopted them as suited to our situation and institutions at a par- ticular time, is to deny te the common law im the place of its adop- tion a ‘flexibility and capacity for growth and adaptation’? which way ‘‘the peculiar boast and excellence’’ of the system in the place of its origin. The final question to which we are thus brought is not that of the power of the federa)] courts to amend or repeal any given rule er principle of the common law, for they neither have nor claim that power, but it is the question of the power of these courts, in the complete absence of congressional legislation on the subject, to declare and effectuate, upon common law principles, what ia the to declare and upon common law present rule upon a given subject in the light of fundamentally altered conditions, without regard to what has previously been de- clared and practiced. It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions. In Ketelsen v. Stulz, 184 Ind. 702, the supreme court of that state, after pointing out that the common law of England was based upon usages, cus- toms and institutions of the English people as declared from time te time he the epurts. said {n. TOT): GO Lille OF wut Clie, oma ype rely ‘'The rules so deduced from this system, however, were continu- ally changing and expanding with the progress of society in the application of this system to more diversified circumstances and under more advanced periods. The common law by its own principles adapted itaelf to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. One of its oldest maxims was that where the reason of a Tule ceased, the rule also ceased, and it logically followed that when it oceurred to the courts that a particular rule had never been founded upon reason, and that no reason existed in support thereof, that rule likewise ceased, and perhapa another sprang up in its place which was based upon reason and justice ag then con- ceived. No rule of the common law could survive the reason on which it was founded. It needed no statute to change it but abro- gated itself, '