The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-29

SO disquallnes the witness TO testify under the
present means, because where one. is called for
the other cross-examination might bring out facts
making II right for one to testify against the
other. Reeves says. distinctly, which is rule OF
or against each other. This is familiar 10 the re-.
lation OF husband and wife, The principle or
the law discovers TO preserve domestic senti-
ments. II q husband anu vile and all agree that
they may be "a witness the law mterferes and
prevents It, This Is just, and Is done because the
we Is Interested. that there is no propriety In
their being witnesses, but to sever such rela-
tendency to disturb that domestic tranquil
iity which s SO desirable, and therefore the
law prevents .u H. In the quaint LANGUAGE
not be witness for or against q husband.
because the in,im mac which is between them Is
must arse between them by perjury or through
great inconvenience" In Spooner's more recent
and enlarged Starkey In his book adopts the
same rule, that a husband and wife cannot give
cases, for to admit sucn evidence would cause
domestic dlssensions and disputes; that 1t is judi
THE DOMESTIC RELATION
snail DO retarded as sacred. ana 1t would be ex-
posing each OF the parties to domestic dispute.
suit. Is interested IN the general result, the hus-
band and wife can be permitted to prove any
one or the other or disclose any communi-
cation from one with the other. (Starkey, 20e.)
This matter OF crlminalty, as the authorities viii
but to the ideas that carry opprobrlum. When
man and vile are divorced by act OF Parliament
the vile IS not competent, and the rela ton should
be Kept involate. In "Iyler on Infancy and
Coverture" edition slxty.elght, page 800. this
cases OF England. New York and some OF our sis.
ter States we VIII also find these propositions. In
the third OF Douglass, 422. L2rd Mansfield says
"There has never been an instance in civil or
criminal case where the HUSBAND or the vile has
been permitted to he witness for or against the
other, except In cases Of necessity, and that
necessity is not a general necessity, as where No
other witness can be had, but q necessity where,
for instance. the wife would be otherwise
exposed without remedy to personal injury, i
think the husband would not be competent
witness. NOW, the husband was there called by
tine defendent TO prove the formers IN rrlage to
plaintin. who had sued, and on his evidence was
non-suited." The case OF necessity, as Your
mitted In criminal law to testify against personal
violence, If otherwise the husband would be pro-
private injury to the vile. In Davis Vs. Dill
worthy, by our second Chief Justice, page 678 the
rule Is laid down :-"Independently Ofthe question
oil interest, husbands and wives are not permitted
as Witnesses either Tor or against each other and
from their being so nearly connected they are
supposed to have such bias upon their minds
that they are not permitted to give evidence
either for or against each other" Now to show
that divorce does not open the mouths OF either
party to previous marriage. In the case OF
Monroe vs.. Crssam, in ''AddItional Cases." page
2le. Lord Away refers to the testimony OF q lady
divorced from her husband.
SHE WAS BOUND TO SECRECY
when married. and what she did was IN view of the
Al.
way says:-"It shall here be evidence that the con-
fdence which the Law has created while the parties
are bound In the most Intimate Of all relations
shall be broken whenever by the misconduct OF
one party, and only misconduct can nave that ef-
feet. that relation has been dissolved" I'm case"
the Chief Justice says, "Ihave ever refused 10 al.
low woman, after divorce, to speak or the con-
verssti0ns that were had between herself ana her
nnsSana aurn e me fh existence OF the marrage
and that the happiness OF the marriage state re-
qures that the confidence between man and wife
ahn a OF AYot iv,
the Munros decson me eae Court s was unan
sna never esdenss either for ", os
against her husband nor for him because
thsr are the same nor against him for
families. We are asked to conhne our Judgment
only to cases OF contdentia nature, but think
that would be injurious and inconvenient. 1t is
better to aDlde by the law and follow the Judgment
in the case OF Monroe against Crssam. that Is bet
ter and sounder ruling.n In Barber against Allen
the exclusion does not stand on the ground OF the
conjugal communication. The opinion ISL am
not prepared to express assent to these Observa-
lions, but rule that so lar law respect these
communications 1t uoes 40, and all 1t can do. So
IN all interests where the husband and wife are
against Clark, twenty.arss "Law journal Il was
held, Lord Campbell giving the opinion; it
was to introduce q certain latitude for
was that It rests not only on me ground
OF interest but oi union and incapacity; the only
reason Is to preserve the basis OF families. Wight
mau says the reason lor ruling the evidence In
question rests not merely on the interest but on
tween husband aud wife. Now, the ' New York
cases 10 wnicn call Your Honor's attention begin
with some Important OBSERVATIONS. The People
vs. Mercer winch Your Honor Will recoect Is
having 10 do with the right OF parent with re.
spect to her children. Walworth, Chancellor. OBJ
witness against her husband; that the happiness
Of the marriage relation requires that perfect con-
nden ,S should exist between husband and wife
communicated TO ner should not be gwen in evil
dence against MIN Tor his injury Dy his vile, to
whom he had communicated these matters.
AFTER RECESS.
Mr.. Evarts-n Your Honor please have been
directed to line of authorities IN our own Court
o little sooner than should have been, and I wish
TO call Your HOnors attention 10 case OF some
under the general rule. cite the
opinion given by Lord marlborough. This was q
case know to the English law and TO our laws as a
stands, was to FIX the responsibility OF a putative
lather Tor bastard Guild to save the public from
the expense otherwise entailed upon It. And the
TENOR Oh tn0se cases. which IN form are or crim-
nal character, nave the same public reputation as
against putative father. SO Your Honor sees no
party intervenes there to make a ruling growing
out OF man VINO is the iather; the character OF a
party Is on one side and the putative fa,her
Oh the other. After the bastard child
mother or that BASTARD being "a married oman
the husband OF the womal should be admitted as
duce the conclusion OF the adultery OF his wife,
she being the mother OF this child, not by her nus
D@hu, uut w ,Hc pututlVc IdJner. And Wnen, Dy
part OF the proof before the public. it was proved
tnat TINS cnd, porn or parents In wedlock. was
not the enid OF the husband but OF the putative
father, and when the necessary Ink or important
Ink WAS or might be proved by the non-acccss OF
husband 10 the wife during the period OF gesta-
ZION or me enid, and the husband the ordinary
necessities and convenience Of the law would be-
the natural witness to prove that incidental TACT
IN reference TO his wife's adultery and his
non,access during the. period of CESSATION
Df the child. And it was held by the
courts that the husband could not be al.
United as witness to prove non-access, on the
ground OF the marital relations. that he could not
be allowed 10 furnish testimony that formed any
part OF tme prooI ana the im2utation of this great
crlininalty on the part OF the wife and use the
word "criminality'' IN regard to thus offence or
SIN because 1t Is language uniformly used IN the
law books, ana does not turn upon the question
whether adultery mas been maze by imputation as
IL was AZ common law q crime. The English Court
has found In reference TO this kind OF a case, and
this point Is excluded
BY THAT POLICY OF THE Law,
That IL is not permitted OF a husband or wife to
testify concerning one or the other ana to prelu.
dice one or the other In matters OF TINS nature
Counsel here quoted from Lord Elenborough to
snow that husband could not testify against his
vile or WE against her husband where the
nature OF their relations would make such