The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-29
to such suit, action or proceeding There is moth
ing In tnls that changes the rule Of

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The act OF 1857 was to qualify and modify the
exclusion OF husband and wife as witnesses in
be- OF 10 nsss
to The arReness OF their testimony. This act has
disturbed the rule as to the admssbiliry OF their
| evidence here. The second section oil the act
says, Nothing herein contained shall render any
husband or vile competent or compellable for or
against the other In any criminal action or pro-
ceeding, except 10 prove the fact OF marriage in
case OF bigamy, or in any action or proceeding
action OF divorce on account Of adultery except
60 prove the fact OF marriage, or in any action on
account OF criminal conversations" This rule or
evidence Is retained at common law and the
statute statute. WIN wise respsc. to the value oil the
PUBLIC POLICY
that in an inquiry OF this nature the admission OF
against the other. shall not be t toleratsd to any
extent whatever, and that any careless expecta-
sucn issues ana controversy the testimony or
either. and expect TO reduce or connne It BY any
rule. protecting what was Just or excluding what
was criminal, would be vain and illusory, and
would lead
THE MARITAL RELATION
ultimately into equal disgrace and danger. Hav-
cided In the Supreme Court. General Term, he
witness was called to prove was the marriage
between him and MS vile That was not ques-
ton arising in tile confidence OF marriage.
was always celebrated in the face of the church
and OF the world. Therefore proof OF that fact did
not come within any reason or rule OF exclusion
! from Its arising In the confidence OF marriage.
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married BY Justice OF the Peace without the
attendance OF troops OF friends. The Justice OF
was found to De detective, and could not be used
| as evidence. The plaintiff was offered as u wit
assa he wond s%S
witness. He was excluded. Every effort OF c0un-
sci relying on the statutory rule OF 1867. by
which the witness could he called, overruled
by the Court, although tue statute had expressly
ed tss IN on hs
In an action for divorce. though the parties were
excluded from every other part, they could be ad-
united to prove the TACT OF the marriage, and that
no such saving rgh. could be applied TO all action
lor Grim. con. And the Court could not find, IN
the charge Of the common law, anything applicable
TO an action o. Grim. con. In the statute books OF
the stale OF New YORK. We are unable to see by
what statute OF New York Mr.. Triton Is competent
Is q witness In this action. He stands in the
same same, position now, Now It may seem. II the
In respect to the testimony, pro and con. IN this
case whether the plaintln might reasonably oe
expected to be admitted as q witness II the de.
1enuant Is. The d1lculty that he is tied by the
rules OF law that relate 20 ana sustain, against his
WILL his loyalty to the marriage VOW ana to hts
vile, In order that all other men may know that
LOYALTY TO THE MARRIAGE RELATION
Is part Of the law Of the land not depending upon
the capricious Will oil any person. How inequi a.
bic would be o cnange in the law that should
winch would open the mouth OF the husband ami
close that OF the wlIe WHAT precludes Mrs. Tiltcn
from being witness IN TINS case is she TO prove
prove any peril or ruin TO her chdren9 None.
she cannot testify against the money interest OF
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that ground, on the charge That the statute has
introduced here, YET 1t cannot be supposed that
the common law which SHUTS the mouth OF the
witness who knows the truth anu whom the law
presumes innocent TIL she Is lound guilty, can
tins husband who can destroy her because he Is
the husband o. Of this WE apErehend the com.
foundation. Suppressed applause.)
Mr.. Evarts' manner was classical elegant difru.
sive and excellent IN model, as We all know It to
be. He Is, for small and mcagre man, a little
giant Of thought, plausi6iity and scholarship. He
spoke to the point Yesterday AMI with ali ingenious
ampltncation. and the witness watched him like
the most patient auditor.
MR. PRYOR REPLIES.
General Pryor, on opening his address, said that
he would refrain from INDUCING IN replies technl.
would not urge any points which do not bear on the
question. The question is SIMPLY this:-"is the
versation, a competent witness on MS own be.
halfr' IL IS not pretended By us that In the COM
action competent wltaess. The common law
arbitrarily and peremptorlly excluded all persons
most mos familiar with the circumstances OF INC case
tue subject from the wllness box. They ad United
that point Of the argument THESE unjust and
! promlscuous ideas were, however, exploded. and
had all persisted as unphilosopncal ana unjust
Jeremy Bentham commended Tor The crediDlty,
! and would leave all persons TO be judged by the
jury. soon the sentiments OF Bentham became
tue Jurisprudence OF Britain The counsel re erred
| TO enabling acts OF Lord Denman, IN lS47 rcmov-
ing incOmpe ences arising from ''lnancy,' In
terest and cOverture in England. The spirit OF
reform In the State Legislature OF New YORK In 1S45
abolished the iacompetency OF persons testlIylng
because OF peculiar religious tenets, oonox-
lous laws were wiped OUT and In 1857 the Legisa.
ture accorded to The husband and wife the right
to testify in mis- or her behalf And now even the
behalf We have so changed tue old common la W
that the barbarous enactments nave been re.
moved These changes nave always been maze to
enlarge and amply the rules OF evidence. The
plaintiff IS, under the AMENDED statutes, therefore
admitted to tell his own story or
w
me Legislature, IN amending the act Of 1857,
did not Intend to break down the competency OF
the husband or vile as a witness, out desired TO
clearly express the rgnt OF either TO give evil
dence where they are not parLles 10 the case as
case where u husband and wife we're sued for
SANDER and offered themselves a. witnesses.
was given for the paintn. Tue case was ap.
pealed To the Genera Term and their compe
clded that they should nave been received as wit.
nesses. Tney were parties 10 the record and
OF Porter vs. Marsh tne same right was acceded
by the Court. The authorities show that no l,m-
tatlon OF restriction Is made by the law-maklng
witness taxing the witness cnalr ana TESTIFY
ing In his own behalf. husband swore
been intimate with his wife, and he was indicted
Tor perjury, ihe Court OF, Appeals ruled that tue
husband could THY, ne being party directly III
interest In Hooper VS.. hooper, the Court says,
referring to the act OF 1851, chat the disability to
give evidence IN ones own Dehalf Is removed
rom all parties, /! the words OF the Legislature
are 70 be taken at their PLAIN meaDing"
THE FRAMERS OF THE
knew that married women and their husbands
were in many cases necessary witnesses, and n
they were to be excluded the Legislature would
have signined It's intention IN many words. In
Hall VS.. Hall 1t Is neld that though hus-
band and vile may not testify against
each other, eacn is competent in MS or her
own oehalI. In Artbn agalnsG White, an action
Tor cr.n, con-, IT is decided that wife could not
De witness, solely because she was not party
TO the action. In the case OF smith vs.. Smith,
wn,cn was a SUIT for divorce on toe around Of
adultery. was admitted as witness. Tne action
brought by Maverick aud wife against the slXth
Avenue Railroad Company, OF New York, the
husband was declared competent witness,
although he was Jointly party to that suit. Judge
Mullen says, "a party 10 an action may be ac-
cepted In his own behalf the same as any other
witness" In the case Of Parker against White, 1t
was decided that In an action criminal conver-
satiOn, the vile Is an incompetent witness, AZ she
does not really appear rs party ol the action. one
principle stands out salient and uncont ested, that
when husband vile are not both parties TO the ac-
In h1rh