New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-29
WORDS or WISE COMMENTATORS CITED.

1, The uniform tenor Of the commentators Of authority upon
this rule and 20 say that it H. in substance rule
not 50 much Of the law evidence OF the law OF marriage
Baoons Abridmert" gives the OF the rule the
imp.rabIe senson which might be caused by and the
great danger OF perjury taking the oah Of persons under so
greet bas and the extreme hardship OF the case ana bes'
adds this observation Of Bacon:
This rule WAS not limited oprocctng from disclosure mat
tiers communicated in nups confidence 1ae knoWo1
Of which had been acquired IN consequence OF the feaoh
husband and WIFE and was A. absolute promOon OF he te
mouy Of the witness to any facts affecting the husband OF w
the might be- however the knowledge OF thiac might
have been acquired"
lie goes with this observation which It is right that
should call attention TO- though the book shows the limit OF H.
the rule only applied whore the husband or wife was
marty the whth the other called witness ana
did extend collateral proceedings between third parties
Bat your Honor understands that this commentary writ
ten la state Of the law where idea that party to suit
could himself witness excluded by the mere fact that
he was party and therefore it loses its pertnancy
Ia action for wages Chief Justice Lee who was the emil
nen Of Lord adwcke refused to let the wife
confession Of receipt of fsO be given in evidence saying
Husband and cannot be admitted TO be witnesses for
each other because theirnteets absolutely the same nor
rage"
Cords Rights Of Married Women says:
"The declarations of the wife not evidence for the hns-
band and action for criminal conversation, the We
confessions are not evidence for the husband.
Coke upon Lleton says:
NoHI hath been resolved by Justices that wife cannot
dnadr in care nf might be Of nlacabe dis
cord aud dsenson between the husband aud tue wife, and
means OF great inconvenience
Bspnasses says, N. P 1872:
"Those husband and wie being person in the con-
dcraOn Of the law, and their interest absolutely the same
they cannot witnesses for each Other against eqeh oe
account Of its being likely to create disputes and so against
And this rule is founded the policy OF the law, ana not
the ground Of interest"
Gilbert on Evidence after laying down the rule Of exclusion
cooay from the exclusion Of the party says Of the con-
trsry rule
Such law woud occasion impacable divisions and quar-
res and destroy very legal policy Of marriage that has so
cOntrycd that their interest should be but one; when II
could never be wives were admitted 10 destroy the interest
of their husbands peace Of families could not be easily
maintained the Law admitted any atlesston against the
wife"
The rule Of exclusion Of husband and wife is grounded on
the identity Of interest public policy The former reason
other and the latter not allowing them TO be called against each
other"
Greenlcai our own eminent commentary. says:
communication between husband and wife belong to the
class privileged communications and therefore protected
independently Of the ground OF interest and identity which
precudes the parties from tetying for against each
other The happiness of the married state requires
there should be the most unlimited @
shall be kept forever nyoabe that nothing shall be extracted
ION o1 afr aftc The ,riirs are srI,aTaed whether IL
be divorce by the death Of the husband the wife still
She may be admitted to testify fgc, which came TO her
knowledge by means equally accessible to any person not
And he adds again:
This exclusion that ohu,band and wfcI founded partly
the identity OF their legal rights and partly on principles OF
essential the happiness Of social life that the confidence sub
sng husband and wife should be acredy protected
and cherished in its most Unlimited extent.
Kent says q Kent's Comm. 17SD:
"The husband and wife cannot be witnesses for against
each other in civil suit hi- is well settled principe Of law
ties being the same as on public policy
Peake on the Law OF Evidence" speaks Of this relation a
coming under rule Of this kind:
we are now consider those who stand in different situa
ton and excluded not by of any disability but on
Of higher duties either domestic Or public binding them
II has been before mentioned. that be witness
for himself aud 1t follows Of course that husband and
wife whose interests the law has united incompetent
give evidence Of other any other person whose interests
are the same and the law considering the policy OF marriage
also them from giving evidence against each other
for would be hard that the wife, who could not be witness
for her husband should be witness against him. such rule
would occasion mplscabe divisions and quaTels between
them"
And again:
"Tbe rule Of sw does not merely prevent husband or wife
from giving evidence FOR e purpose Of eliminating each other
much further ana precudes any evidence Mhch mas
the kdst tHdency TO t. or which directly peJudices me c
rights Of each other. Neither in civil action, nor criminal
prosecution are they permitted to give any evidence winch IN
its future effects may cmnale eac Olher and th rule Is so
nvoabc that consent OF the other party Will authorize the
breach Of it,"
Phillips on Evidence supports the rule placing it upon the
same principles have stated:
"The reason excluding the husband and wife from giving
their identity Of interest," and partly on principle Of public
policy which deems il necessary guard the security and con
dence Of private life st the risk OF an occasional failure
OF Justice They cannot be witnesses for each other because
their interests absolutely the they are not Witnesses
against other because this inconsistent with the relation
Of marriage
And Reeves in his Domestic Relations" and other COM
enators says that relation that the removal Of the dis
qualification Of does not affect the aforementioned
reason because when called for the other either exam
nation might bring facts making for against the other
Reeves says distinctly:
ct is rule of law that husband and wife cannot
be Witnesses for or against each other Thus Is
The principle Of the rule arises from that anxions socitude
which the law discovers to preserve domestic tranquility
and wife and their antagonist all that the wife may be
witness the law interees and preyentst This shows that
not because the wife interested that she prevented from
being witness for the right OF the opposite party to object to
an wines may De snd % I a, SdeG 1ch
urb that domestic tranquility which 50 desrabe and there
fore, the law forbids IT.
In the quaint language OF Role ABR 1856:
"A married woman cannot be witness for against her
hu -band nasach they in law and inasmuch
deasure arise between Them or perjury or other great
In Schoers Domestic Relations I'D Ed published in 1870
this principle insisted upon and enlarged and Starke in his
Evidence says lpage 1881;
"On grounds OF public policy it is general rule
that the husband and wife cannot give evidence 10
other, either as seems cyily crimnaly For
10 admit such evidence would occasion domestic dissenson
and discOrd 1t would compel violation Of that confidence
which ought from the nature Of the alton to be regarded
a. sacred and would be- armng each Of the parties with
the means oi ohense which might be used for ye dangerous
purpOses.'
ION page 100 he adds:
"Where neither OF them ehera party 10 the suit or inter
e-ed in the general result, the husband wife Il IL seems
competent any fact provided the evidence not
directly crmnae the other as involve the Dis
closure Of some communication made by the other"
This matter OF terminate" as the authorities win show
means not exposure criminal justice but 10 the imputaons
that carry opprObum.
"Where man wife divorced by Act OF Parliament
To
previous divorce because the commence between
and wife should be kept forever inyiolabe
In Tyler Infancy and Coyerture 3D. I'd 1858 page 7O
this same principle Is laid down.
Ia, uour Honor come OF the leading In the