New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-29

This Is an important decision your Honor please in which
the whole doctrine considered and the conclusion Is based
upon this general proposition OF the protection OF marriage
against any invasion by the administration Of justice
The case Of The King The Inhabitants Of Clyiger In
rnford East 1873 There they say that wife shall not be
called any to give evidence tending to crmnae
her husband
In case OF settlement where marriage had been proved
between two paupers wife OF the husband Is not
competent witness prove former marriage with him. De-
such evidence tended " show him TO be guilty oil Big
amy"
bigamous marriage which he speaks of II Is an
authentic marriage which he is permitted toprove although
the case OF indictment for bgamy but only case
Of settlement raised in the general form that have stated
somE AMERICAN rEEoxDEsrs
There Virginia the case OF Robin and others
pauper. against King which the Court Of Appeals OF VIZ
GINA the highest Court OF that State says:
"In suit by persons held slavery against their master to
recover Their freedom defendant claimed the plaintiffs as
paSfs offered K, widow Of W X to prove that X in his
lifetime before sale to defendant repeatedly declared IN
encc family and without injunction or secrecy th inc
mother OF plaintiffs then held BY him in slavery was an haan
woman"
Which would nc,tiy. the idea Of progeny being slaves
"a yOur Honor understands
Held the widow competent witness to prove SUCH decia
ration Of her deceased husband"
Though death had terminated the relation yet the wife could
not speak even OF Of that kind though it was not
question Of any personal interest OF hers the estate
Now very important in the Supreme Court OF the
Peters. e)9:
1T general rule that neither husband wife can be
witness for against each other This rule Is subject 70 some
person OF hs wife The husband and wife be called as
witnesses the and il their statement OF facs they
should contradict each Other that would not destroy the com
petcncy either II would not follow from such conTadc
ton that either wac guilty Of perjury and IN some cases
wife may witness under peculiar circumstances where the
husband be interested in the question: ana 10 some oAen
in the event Of the cause"
Now the peculiar circumstances OF this will strike your
Honor
Te wife cannot he witness crminate her husband
10 state thai which she has learned from hi in their conhden
from 1OsPs rests upon Considerations connected with the
peace OF families and it is considered that this principle does
not afford protection to the husband and wife whe they are az
liberty 10 invoke It their discretion, when the question
is prp)unicd but Il renders them incompetent to disclose
this easel ben, dead weaken the principle would
seem lher 30 than lessen the force OF the rule
Now the to which the wife was brought as witness
after her husbands DEATH in behalf Of of the parties against
bo her husband had testified was which the husband
during his lifetime has testified aud now dead and the wife
was addaced witness to contradict those statements OF the
husband and that the not az he represent
ed but was fraudulent ansacton-o his knowledge mean
Mr. Justice Mclean delivered the opinion Of the Court and all
the learned Justices which included at that time the late emil
ncnt Chief Justice fancy Judge story Mr. Justice Thompson
~ oar STATE Judge Mclean Judge Baldwin, Judge Wayne
judge Barbour Judge Caron and Judge the
Court was filled with those eminent Judges-estabsh the
ropoon in its fullest extent and upon the principles OF the
interest OF society lay down extensive rule as to exclude
the wife under the peculiar circumstances that have stated
hc law does TO be entirely settled how lar IN
collateral vile may be examined on matters IN whch her
husband may eventually interested Nor whether IN snch
s she NAV be asked questions as TO the iac at may
in some measure criminaic her husband but which
afford ground for the foundation Tor prosecution
seem 20 have been Influenced by the circumSa nces
Of each cas Ha iny All the cases that wife Il not
competent except of violence upon her person. directly
70 crmnac her husband 10 disclose that winch she mas
fr,y, him in tlplr
lie then sudcs 70 analoges that have been involved upon
the relations Of attorney and client:
"Ybe rule which protects an attorney in such s
9 be aimin,tion Of justice But this privilege is
the privilege Of client and not Of the attorney Inc rule
which projects the domestic relations from exposure rests
upon considerations connected with the peace OF families
and conceived that this principle does not merely AFFORD
protection 70 the husband and wife which they are at liberty
20 invoke or not their discretion Wheu the question
!, propounded But it renders them incompetent I'll to
disclose facts in evidence In violation OF me RUE s
ana T s ps 21t tnf & in most Instances it would
afford no substantial protection persons unnsructed in
their aud thrown OF their guard and embarrassed by
in the present case the witness called to dscred her
husband TO prove in fact"--
That is no, in issue but prove in suit in which her hus
band had testified contrary testimony that he had sworn
aelyf she was be believed of There con-
tradcton between them.
To prove in fact that he had committed perjury and the
establishment Of the fact depended his own confessions
confessions whch ever made were made IN al tne confidence
suhsts between husband and wife t IL true the hus
this weaken the principle Can the wife, under such
circumstances either voluntarily be permitted by force Of
authority be compelled to state facts IN evidence when reder
infamous the character OF her husOandF
That the proposition upon which It ums-"to render in
famous The character Of her husband"
we think clearly that she cannot be Public policy and
established principles forbid it,"
The rule is founded upon the deepest and soundest pn-
ccs nature, principles which have out of those
domestic relations which constitute the basis OF civil society,
and which essential the enjoyment OF that confidence
which between those who connected by the
near and dearest relations Of life To break down impair
the great principles which protect the sancy OF husband and
wife would be to destroy the best soace Of human exist
cnce."
Judge CASTOR whose repue is well known to the lawyers Of
our country celebrated North Carolina Judge in the Of
the state o. Curen jolly In the 81 Of Deyereux Battles Re
ports, 40, says:
The husband after divorce not competent toprove the
adultery of his wife on her prosecution therefor
Tn, next case New York that ask your attention to is
that Of Babcock Booth Ill., 1871, where the opinion given
by Judge Bronson. The Court says:
ct sound policy exclude the wife whenever she il called
either against husband his representative aud asked to
disclose any which her knowledge in consequence
Of the intimate relation which once existed between herself anu
her husband"
The decision below reversed for admitting the testimony
OF widow in behalf Of the defendant in suit by her hus
bands administrator far as 1t applied TO statements made
by the her alone concerning the subject OF the
controversy In Burri o. Bull Sanford, Oh. Is, Vice
Chancellor Sanford lays it down that by OCOnnor MAORI
banks g Lond Jur 500; s. c. g. Scots NeO Rp, 39i the
case that read to your Houor from the Kings Bench:
1.-THE rule established consideration that husband and
wife should not be witnesses either for or against
each other in civil cases. and, that without regard to the
circumstance whether the fact TO them conhdentiay
Otherwise neither could be permitted after the marriage
terminated testify concerning what ranspred between them
during the marriage came to their knowledge BY reason Of
the relation Of husband and wife"
In the case Of Hasbrook O. yandervoor Y, 158 the
action involved the wifes separate estate but she not
party to the record though having interest in the result Of
the suit Her husband offered witness Held that
abongh his wife would be competent witness by
Of the incompeency Of interest having been removed by the
Code the husbands incompeency not removed the
settled rule in this State that husbands ncompeeny
on the marriage relation and not interest