The New York herald., 1875-01-30

lore, DTOuxnL Dy WTODReQ nuSD6Qu, an action
SRI Consider how strong he wasl Consider how
weak she M Was Consider how submissive she was
to his teachings, and imagine-imagine with what
specious and inslduous tongue he conveyed to her
the theory OF ms pans-that lornication was but
the natural expression Of love He taught her to
believe In
PIoUs ADULTERY,
and oy steady steps he led her along the nowery
path 10 the precipice IRON which she fell That se-
docer IS brought into court vf justice to answer
ducer, guilty, stand before the immaculate justice
Of tue law. aud before 1t each is 10 answer Tor the
deeds done TO this woman. And we are told. sir,
this aged and venerable and gifted seducer may
take the witness stand, and polish and apologize
his learned ingenuity, and that the husband must
oe stu. silent! And tnat this is law! The law.
holds out even jusuce to all litigants before 1t.
ana That the seducer with all his great powers
tnat administraton OF innsn,ce and wronu
say no, sirl Before Your Honor Will admit any
sncn before you T 10 0 any ny
the force OF an irresistible legal logic. Thank God
there Is IN my belief no such rule OF law IN tins
State. There is no such injustice In the policy Of
Iny considerable length the authorities, or to
learned adversaries to declare that the policy OF
the common law excluding husband and wife as
upon the inviolabiity OF the domestic relations.
deny mat proposition. 1t Is maintained. un-
and is III one authority OF this State as a ground
OF exclusion But in later times, ana in better
considered authorities, submit that the dogma
has no support whatever. Now, refer again to
the case OF
already spoken Of; 10 the opinion OF Justice James,
which is the most elaborate and thorough exami.
nation. not ony IN the policy oil the State decls.
other reports but 1t has ueen adopted aud
affirmed by tue Court OF Appeals. Upon the
uase Common law Proceeded in ID distruss Of
human nature; 1t believed witnesses Interested TO
be incapapie OF verify" Consequently grew up
ever allowed the facts in a gwen case to come
out fully, and was often an occasion OF great
system were too manifest not to Call attention to
tnem. Many thought the truth might be pro-
ceIving it from ali persons having the iacts bearing
IN the case, especially those most conversant with
them Tue parties themselves should be permitted
they believed In the principles OF human integrity:
they believed IN the capacity OF human nature.
fra@ such BASIS Of thought asre % have
sprung up in England, and in some OF the States
ana competency OF persons as witnesses. new
system has developed itsell, whose foundations
policy and It's superiority over the old Is no
longer questioned, except Dy the lew who have
a1 IN wno only
ing fast anchor to the past" Omittmg few par.
agrapbs, sr, ne says:-"Acttons between married
persons should constitute no exception to the
general rule Of practlce. such suits represent
Well-defned rights OF action, both as concerning
property and personal rights; sultors can instl-
tute them, courts must entertain them, triers
must try them. so In other actions husband and
some instances may be sued by the vile. Sucn
actions must be entertained and tried by the
Court Tne simple question @ then m ls IS Snai M sacn
exceptional method9 Win the law, while 1t ell
tertans them, say they shall be decided rightly as
quence how rar they may be disposed or or II
their decision is matter OF some concern to the
suit consonant with the dignity OF the law ana
the rights OF individuals in other cases. or shall
the trers grOpe their way through the darkness
to sucn result? In Otner words, shall
THE HUSBANDS MOUTH
be closed In his own oenalf. when his wife Is CO.
party, though permitted to speak II sued alone? It
Is rule OF the common law tnat husband and
Miic can be witnesses Tor or against each other.
The nrst branch Is based entirely upon interest,
the second upon interest and public policy. All
persons III nterested In an action were at common
law held incompetent TO testify this oI course ex-
cuded parties to the record. In common law
Wifes civil existence was merged with her huS.
band's she was part OF hlm; she had no sepa-
rate right to property or action, and hence was
excluded from being witness in her own behalf.
This Identity o. interest was also the real supporJ
to the rule excluding the vile as witness against
the husband. In consequence OF this identity
Of interest-and in both sentences the word
uniformly appeared before the court IN a friendly
attitude. Legally, their relation was one Of mu-
reason to lear, therefore, that in view OF the III
PRODUCTION OF suit by the adversary OF one or
tnc Ot0cr some testimony WOulQ Oe cLlCttcQ which
woud DC detrimental TO the interest OF one or the
other. and therefrom discOrd and dlssensions
would arse between them. and the peace OF the
family would thus be jeOpardzed merely to serve
the Iecuniary interests Of tnird person." And
ne proceeds to cite elementary authorities, and
he concludes W saylng:-"l think 1t clear, there
lore, that the true principle which excludes the
husband or the wife where either was party from
being ID witness Tor against each other, the
union OF interest and privilege existing between
them may be prevaed.n Aud that privilege
fers, sir, to q confidential communication, ana as
In no cnnn W of lvCV r.
the harmony OF the domestic relation. 1t Is true
that authorities can be cited which sustain that;
family, and wnere it is said that the admission OF
sucn testimony would lead to dissension, discord
and even perjury, aud that the confidence exist
MAN AND WIFE
should be sacredly cherished. But II those cases
are carefully examined 10 will be found that this
question IN Its origin and cause was not iuly con-
sldered. And then ne % proceeds to examine those
ton OF confidential communications between hus.
band and wife tnere Is good reason Ior such pro-
tecton at all tines but no such principle has been
brought into practice. The decisions excluding
husbands or wives OF parties are often accom-
panied with sacred decaratlons in lavor Ol such
protectlon; but as the exclusion extended to all
the testimony, whether 1t was confidential or not,
and as no protection was given to cOnIuga conf
dence IN respect 10 witnesses not parties. who
were as much within the reason OF the
rule as it existed. or the other class, it
as yet been established. AS to the authorities,
most OF the decisions In lavor or excluding the
excluded and therefore no matter now strong
may have been the expression OF puolic policy,
And In favor OF preventing domestic discOrd, and
30 lortn. All these decisions are consistent with
the principle tnat interest was the ground OF OBJ
Jection." AND ne tnen proceeds 70 reason upon
the effect OF aoOlishng the disqualification Oi ln-
terest, and finally nolds IN consonance with opin-
tons have read TO Your Honor. ask Your Hon
or's attention 10 the case OF Wehrkamp vs. WIllet,
10 be found III the fourth volume OF "Abbotts
Court OF Appeals Decisions" at page 54S. That
was case, sir. where the vile was u party plain
I'm and offered as witness where the question
was as to whether the properly, which had been
seized by the sherin, against wnom the action was
brought. belonged to the vile or 70 the husband.
Tne question was whether she was competent
witness, and II was held that she was And
read tins, sir, or two purpOses-nrst, to maintain
the doctrine asserted by Justice James. that the
exclusion OF tue vile or the husband, as the case
might be, was not founded upon the idea OF
DOMESTIC HARMONY.
consequently, tnat In an action like the present,
even at common law, the objection offering
party removed, where husband and vile were
party, the other would be a competent witness.
the Court say the rule OF the common law did not
r,rn httsn "a nd