New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-30

not for me 10 say, Sir whether the cohhuen0e vi
that challenge rested upon circumstance that the revelations
were TO be made before his chosen judges appon'eu ny
and ruled by himself and that to-day that Challenge
answered before reliable and competent tribunal ana I'M
der the sanction OF judicial law. At any rate II Is
remarkable Inconsistency, and the Imagination VIII me-
cesssrily rove in the fancy for the reasons which
should thus have altered the tone OF confidence ana Dc
nance on the part OF this defendant.
THE SIGNIFICANCE THE TRIAL.
But Sir this litigation although represented by my learned
friend a mercenary pursuit upon the part oil TINS pah
Of money compensation to which shall aude hereafter
by no means action Of that character IL inciudes
questions Of higher interest to the community ana
to the parties Its object is far purer and mgher than the
consideration of damages 1t looks to the vndicaon OF
for whom yndcaton is necessary that Is the pahIn IN
action involves the question whether prominent ana
eminent leader of the Christianity of the age Is TO DC
stricken down by he and condemnation of MANKIND
and the vast which rolls around this case as
connected with public and farreachng consequences
far higher greater consideration than the technical ana
simple question Of the ultimate judgment for mere damages
which is to be expected alone from this Jury Undoubtedly
Sir for this defendant in the pursuit OF their Duty
are quite entitled present any technical objection to the ad
mission Of evidence which may their judgment appear apo
pirate and proper but whether they know 1t or not those
objections which seek exclude light and to still hide in dark
ness the alleged sin of this defendant reflect credit upon his
character and will not aid in the effort at his Justification
MORE ABOUT JUSTICE SMITHS DECISION.
1861 and the decision of MI Justice Smith, and as read that
decision Sir far greater import has been given to than it
deserves Your Honor will be good enough to perceive
that the simple question decided In this case is
that the husband, in an action brought by himself
for criminal conversation with his wife not competent
witness prove the fact Of marriage and that fact alone lie
was not offered witness generally in the to sustain the
allegation OF seduction, but the statement OF the case and
opinion Of the Court says the single proposition Of fact to
which he rendered to prove the marriage between him
self and his wife And mark the OF the Court After
the statement Of the case, which is:
AT the trial at the Onondaga Circuit the plaintiff TO prove
his marriage offered as witness on his own behalf rms
objected by the defendant the objection sustained ana
the evidence excluded to which the plaintiff excepted
not necessary TO state Sir the preliminary circumstances
which led the necessity of his being offered upon that single
and exclusive fact, but the Court say:
." has long been settled that in actions for criminal con
gS sa2n qRa d mas be e proved and that in these
cOhabiation Of the parties as man ana "lle tc az
the plaintiff acknowledgment Of the as his wife and
holding her such 70 his friends and anu
her reception in the family such are not suhceh 10 n
tain the suit"
And be refers to number OF authorities and says:
Tbe proof offered by the witness Damn the plaintiff was OF
the held sufficient and was properly excluded within these
cases"
And that was the ruling and that the whole extent OF
the decision Then argued the part Of the appellant
that he witness made witness under the Act of 1861
and the passed upon that and important ques
ton with the simple remark read by learned colleague but
which wish to repeat 1.-THE plaintiff was not
competent witness" For what Not competent
witness in the case ? No. Sir he was not Offered
as such he was not passed upon such The plaintiff was
competent witness TO prove such marriage and to that
extent and to that only did the Court constue the application
of the Act Of 1861 The Court proceeds TO say
"The Act of 1857, to enable husband and wife to be wit
nesses for or against each other expressly eTcGP tG caS
controversy except 10 prove former marriage IN case O DIG
amy, and the fact Of marriage in actions for divorce
any
previous authorities without any investigation OF the principle
or the policy Of the Act Of 1857 the Court passes that i'm
portant question submit to your Honor that in itself it's not
decision upon the point which presented where the
plaintiff offered witness generally in the case not only
as 10 the fact Of seduction adultery but to all the other
questions OF collateral importance and upon collateral
which have arisen and will necessarily arise in the
of the investigation, Now Sir think may be pardoncd in
making single additional suggestion, sufficiently inmated
perhaps by my learned colleague upon this law of 1861 1t
has been read 10 your Honor by its first section makes
husband and wife competent witnesses in all without
any limitation Comments upon this Act expressive Of its
spirit and policy and effect have read to your Honor from
decisions Of the Court Of Appeals Its object its pur
pose that single remaining impeachment from the
competency of all witnesses in oil cases, subject to the ma
ons contained in Section of the Act THAT declared by the
Of last resort Now, the Of Justice Smith arose
from superficial consideration of the limitations contained in
section He evidently Inexperienced the effect Of that
section evidently he msapped it, the ordinary common
aud intelligence Of any gentleman will lead him to per
ceiye listening the simple reading OF the section:
"Notng herein contained shall render any husband wife
oheP" OF '0''''-O' - give '''''-'' III
In any OF the actions enumerated Of which may
this to be one Now Sir the test the soul Of this section
the words for against each other" by the first
section they are made competent witnesses in all actions
and upon all occasions and between all parties The
Legislature then say that section shall not be construed as
qualifying them witnesses for against each other Is not
tho he
language Of the Statute, and before either is dis
qualified under that section, must it not appear that
he she is offered witness for against the other
And is it conceivable that any judicial mind brought
deliberately to the consideration Of that section can
msconceiye its import and the principle which intends
to announce that principle being simply although
the impedments of the Law removed, although
the ideas the unity OF the marriage relation exploded
although the fact Of actions between husband aud wife, and
tmony and wife may destroy the sentiments othe
cOnnuba relation nevertheless they shall not be witnesses for
against each other Then the question at arises Sir in
action Of this character brought against the seduCcr the
husband competent to testify against him? And STILL leaning
upon the exploded notions Of the law my friend
he is not because would interrupt and destroy the
unity and harmony Of the conjugal relation.
But Sir, this is action against the wife, She is not
party. As conceded, she cannot be witness 1t seeks
remedy against her 1t asks Judgment against her and
whatever may be the final defamation Of this action she yet
stands before the world and the Law the legal welded wife Of
Theodore Tton Whatever judgment you may power
less strip her Of single wfey right She the wife Of this
plaintiff entitled to all the legal consideration claimant fora
the duties arising Of that relation And how, then,
can testimony of the husband in this be considered
either for against her! Those terms must be applied
IN a legal lie must be witness against
her in legal meaning She must be party,
else the judgment be such will affect and conclude
her interests have shown your Honor think that such
consequences be claimed from the result Of this litigation
Tomorrow to-day she might file her bill for divorce. To-
morrow to-day she might her action for a legal