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


relation OF client and ,orney; that or clergyman
anu penltent; tnat OF physician and patient
TRIVIAL as compared with the relation OF husband
and wiie. Barriers are raised against the intro.
ductlon OF evidence from sources thus be-
cause without that respect from the law for those
relations no client could connde in lawyer to
defend him, no patient in physician 20 save him,
no penitent In u priest or clergyman to aid him.
But when we come to the relation OF husband and
vile, which IS the foundation OF our civilized
society, although nature provides the sexual
instlrnllon OF marriage that makes civilized
ana ustlul hersinss of the common race'
as a er up Sy ns nn
ments, uses no nne sentimental phrases such
come from platform orators or from eloquent law
yers, but iL understands the institutions that 1t
has undertaken to frame and to protect. and pro-
ssss an ns 4 mat when
law OF purity, that they twain should become one
nssn' and that the popnlatlon OF the world snail
the divine command. And wnen the common law
says That man and his wife are one" OF IN
SON" It Is said, No man shall put asunder those
VINO ar thus Joined together and least Of all IN
pull and tear asunder
by the step OF sheriff, or the precepe OF Judge
compel one to come and petray the other; It Is
men the & before n court SO
circumstances OF an individual case oil marriage
sue
marriages; it Is the whole system OF marriage, by
Sence WITH their U nouseuod and IN each Others
embrace; and no interests Of society, no Jaw OF
and every American prides himself ' upos the IN.
volatility OF MS threshold against the King or al
as x
passage of II, how mucn more important
ssno "a snp maze; 70 N,srnsy s%e the n
volatility OF the family and the protection OF
marriaye should be sustained BY law AGAINST the
Now there are various aspects In which this mat.
ter presents Itself IN respect to this institution OF
r.
mind as such by the particular circumstances OF
any case IN which the question Is agltated. Let
US suppose that happy marriage has been In.
yaded by a seducer, and that the vile mas con-
tesssd TO her husband and the husband has par
continue and preserve the threatened unity, and
have children born them on their renewed vows.
NOW. while that ndellty continues, and that hap
pness Is maintained, stranger, by libel suit, IN
Sspa &c % BY ne mus
and break TINS marriage and disgrace and degrade
DOES THE LAW DO THAT
! think not: suppose that IN tho case ! have
mag . ned the guilty wi,e had as the partner in her
TINS pardon and these years OF continued affec-
ton ana OF family the fruits Of 1t, there comes to
Queer IS the husband, and by new discoveries OF
the jealous wife there is an institution OF suit in
regard ~ That husbands adultery-t0 wit, his
adultery with this wife OF the other marriage.
Now, does our law permit this wiie suing Tor ner
bringing from this other family the husband 10
prove prove. me ! adultery Of his wie.h.s own wife
Under those circumstances l think not, and
Nv case can be NJ FOUND that justiaes any
such proposition W the law then allow tue
TO De disturbed to depend upon the voluntary dis
position o. the husband Is that the way the law
deals with the general interests societyf ana II
you can imagine the baseness that could bring
husband into court after having received COMES
sion ano pardoned 1t and lived with his wife years
In mat reatlon; II you can conceive the baseness
IN which the husband should volunteer as wit
ness, does he law change Its rule In respect
sancl!y and the protection OF the marriage? think
Your Honor will find that the book Justlfes SUCH
al rulQ RI tho
subject IN a different attitude, and IN which the
community Is Interested. Suppose that tine nus.
bis vile, or invented an adultery Of his wife; sup
pose mat through the process Of law there is
and menace on he community well known to the
police, tnat is the combination OF corrupt married
persons to make victims OF third persons. NOW what
Is he rule OF our law2 That the wife should bring
ABOUT attitudes duplicating an impropriety." and
then that the husband should De allowed to come
into court aud prove the wife's adultery by con-
fesslon? What would be said Of the partys No,
this law In respect to the marriage relation IS not
ety-nOt merely law inter Sc Sc between the mar.
against the invasion Of the one to the injury Of tie
other; but 1T is the position OF the married people
disturbed. See, If the husband is admitted to tes.
thy in suit OF this kind, how the law, defective
volves the interests OF justice and throws down
the protection OF the opposite party. Suppose q
by which the defendant Is destroyed in that suit,
faislty. do not now speak Of her exclusion from
that suit have already referred to- but when the
vindicate truth and justice 1t the criminal bar,
and 1ndicts the false witness-the husband-ior
perjury, the law says the sanctity OF the marriage
rel,uon don't permit you TO call his wife to con-
Wet HIM. Rules oil law are universal; they are
not undertake to DO by halves and lmperlecty
what the absolute interests OF society require TO
Honor please, as have no DOUBT Your Honor will
consider the question here TO be disposed OF as
encs to this trial, but in reference to the
general aomlnis ration of justice and the
cali your attention 10 the uniform tenor OF the
commentators and authorities upon this rule, not
marriage Bacons "Abridgment" gives as the
reason OF The rule, the impacaole dissensionA
Of perjury from taking the oaths OF persons under
so great olas and extreme hardship OF the case.
Tins rule vas not limited to protecting rom dis
closure matters communicated In nuptlal conf
acquired IN consequence OF the relations OF hus-
band and vile, but was an absolute prohibition
snecs hs husband or vines as 50 a ny cases
i might be, however the knowledge Of those
on with This observation, winch it Is right I
should call attention to, though the book shows the
husband or vile was party to the suit in which
the other was called as witness. and did not ex.
parties In AN action Ior wages earned by the
wlle, Cnie Justice Lee, VINO IS the eminent sue
asa 10 e in tas s
saying tnat husband and wife cannot be admitted
TO DC witnesses Tor eaGh Other because Their In
Dther because contrary to
THE LEGAL POLICY OF MARRIAGE.
Coke Middleton says CIT has been resolved BY
the justices that the vile cannot be produced
either against or for her husband, and 1t might be
the cause OF impIacable discoTd and dissensOn be-
tween the husband and the wife and means OF
great ins co Espnasse says:-"They
cannot be witnesses for each other against
eacn otner on account OF 1t being
likely 10 create disputes ana so Is against
tne policy OF marriage. aud this rule Is founded
upon tne policy OF the law, and not ON the ground
OF interest,"" Gilbert says IL would occasion i'm
placaLle divisions ana quarrels, and destroy the
very iegal policy oil marriage that was so contrved
tnat their interest should be one which 1t could
never be II wives were admitted 70 destroy the in-
eiests OF ,ner husbands and the peace OF IA m lies
could not be easily maintained II the law ADM tied