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


against the weight OF evidence and u newly discovered e
dence OF error your Honor notices. any oil th
Now in gs Kingdom have the points here ana a'
matter was presented the Court by the panth thefe
General Term and judgment Of The Court in both upon reason
and authority and the result Of that judgment az has been
stated
In Hicks rs Bradncr q Abb CT App. Dec. p 1927 tho
plaintiff was not a witness, and not offered
In Pee Howe supreme c. Rep the collection washo
taken, appears by the and points
nTayor Jennings in the seventh Of Robertson the qne7
ton exclusion Of testimony nurousy affecting the az"
m Of the witness was not involved The question was whether
lin an action to charge his wife with adultery the plaintiff cous
refuse 10 testify 10 his own adultery.
Nov nv learned friends have said that Rex Cvger has
en oycruled and the cases Of Rex and Rex
Baihck have been referred Anexamnaon Of these
will show what we supposed well understood before thai
Rex a. Cger decision not Oyerruod bat only
comprehensive dica Of the Court going beyond
the decision here reduced by the subsequent reasoning Of
cases And called your onors attention to the mater
before the value Of Rex Cger remains unimpaired fo
authority in this state because expressly approved by the
Court Of Appeals in the case in tie 9Th Of New York Of ~
brouc 49, Nander,oor, and questions Of IT. authority
| presented
Now, with statute in its text and some comments upon
that, shall have concluded ny observations learned
friends seem to have notion least the learned conn
sci who first addressed your Honor for the plaintiff
| seemed to have notion, from his view Of the Ia"
Of evidence as existing by statute At the time th'
statute was passed, that the rules Of general nature
for the admission Of parties interested witnesses covered
the Of husband and wife and that this statute was to Do
considered that considered it, as sort OF dia0AS
statute. Iconcs unable to take any such view Of us
statute, did understand that my learned friends aTSu
ment very wei cohcrcd that subject The Act a. decod
enablin, Act and attention called by my eaIheo
opponent that: AN Act enable husband and "ie OF
either Of them to be a. witness for or against the Otr on
behalf Of any party certain cases Now my proposition
that when this Act passed the rule Of our State As eva
denced by the decision in southwck a. Souh"ick IN f9h
Ncw.York and in the case in the i9th Of NcwYork,
was that husband and wife could not te'-
tfy in this case pending. Docs this ACT
enable either Of them to testify here IS the sole question
In any trial or inquiry any suit action or proceeding W
any court or before any prson hans ~ E, "nce The
husband or wife party thereto Of any person IN NO.
0on5scI OR defandd shall except hereinafter stated be
competent and compeaDle to give evidence 'Iy an ~
other witness behalf Of any party " 7UcA a"' -1'''" -
proceeding
Now, that would not admit either Mr. Mrs Tton in this
action What the exceptions First OF OIL an exception
limiting the privilege Orhe extent Of testimony mat coud ny
compulsion be drawn 1t applicable 70 al case II winch
husband was witness That Limitation No husband
wife shall be compelabe disclose any CONFIDENTIAL commn
nication made by the other during their marra2e
Now your Honor will notice that any qualification in
card 10 the range Of evidence that could De obtained
from them was qualification that might be tolerated in tho
ordinary course Of litigation in which they might be invoked
az witnesses very dinlculta very pcous rule 1t
seems to me, in two particulars. In the fret place.
| it did limit in the least the voluntary volume OF
testimony that husband wife could give and TO hayes
witness whose mouth is opened volunteer statements and
then closed by the law compulsory searches for truth from
the other side is a very dangerous condition Of The law Of cU
dcnce difficult for lawyers difficult for Courts difficult Tor
uries to determine the truth II witness comes upon the
stand with the law not dominant over his will bnt Dis VIII
dominant over the law woud like to know who would wish
20 be responsible for the trial Of their determination
difficult Imitation
and that is the rmnation a rule Of ccmarkaiion
| between what Is lssfl and what Is excluded, tho
exclusion being defined any confidential communca-
ton made by one the other during their marriage
Now do not adduce these qualifications for the purpose
| Of criticism or faull-andng with LEGISLATION. but
simply to adduce them necessary qualifications in
the opinion Of the Legislature Notwithstanding all defects OF
the prior administration OF the limitations upon tie ItFoduc
ton Of husband and wife known in ordinary htcations
| Well might the Legislature stand appalled, at tho
notion Of opening the mouth Of husband wife question
Of adultery other and seek have justice done consist
emily with limitations that it should De only when they
volunteered and never to compel them; that should
limited only what did not take place in the confidence Of
marriage and everything that did and thus expose
defendant in suit like this to volunteer antG to open
his mouth concerning the relations FAR be- pleased and
close it against the probing Of the testimony by the
| opposite side, and indulge in evidence that bore
against the defendant from his the plaintiffs the husbands
particular opportunities TO know Of his wfe actions and
then when the defendant by his counsel undertook 10 press
about things be knew in his wc action ana con
duct that would exclude and defend the defence against his
charge, that on his mere will he could say:
Oh that the province what learned b the confidential
| communications Of marriage
Now the Legislature impressed with the daicuy Of invading
the rule Of the common aw under which have proeed
long yielded the liberalization, but yet restricted it, It
said the English law had said with regard any judicial
that arises in consequence Of adultery this enabling has
no effect for can put limitations that will do in
justice and expedency that will justify the adj
mission ALL Consequently the exceptions that stated in
the first section in its enabling clause and taken out Of its
operation, includes what now read
Nothing herein contained shall render any husband wife
competent compe Liable give evidence for against tho
any criminal action proceeding except prove the
fact marriage in Of Dr. any any acton proceed
proceeding divorce aiucry any action
! for account Of criminal conversation
The genius and the policy Of the British Limitation fol-
lowed strictly here II citizen, it, member o., society.
look with horror this invasion Of the privacy Of marrsg
sought enforce these considerations upon your
Honor confess lawyer owing duty the almiuisra
ton Of Justice both TO the learned Court and the jury, who
hear all that say and do feel entire ncompeency deal
with witness introduced into the trial Of t cause must
examine him yic and he close his mouth wheue'orI
seek compel his testimony look with Gs upon the ad
dsdcd fragments Of evidence that the search after truth
to be displayed before this jury if this will Of the husband
master over me- and the law him. look with
dismay upon the other Of separation which TO
withhold from and from my clients the defense ID
penetration into the conuga relations that he can close under
having been gained by cOnhd nia COMMUNICATIONS
| between himself and his wife.
Now if the please something has been said about the
admission the defendant and exclusion OF the plaintiff
do in the least qualify did the law undertake to
qualify while its rules have read hem ana when Its
rules still the have proposed TO your Honor that
in certain a subornaton of the fun scope OF
the administration justice but only becsue was TO main
! itself n-tpd MhC