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

legged erroneous rulings OF the Court below The first two
the said Mary Jane Fisher was al the time Of the alleged Of
Afterwards inermaei with one Edwin Hacket that sad
Iiacket was the person by whom she was got WIN
the child for whose miscarriage she was ope.
to perform the operation, and came to him with the
SAID Aar Jane for the purpose OF having II .
and ms wife were called witnesses for the government ana
admitted to testify against the objection OF me defena1 lS
obeeuqn oeg that the testimony Of each Of them "oue '
70 eliminate The other Of an ndcable ohense that 70 say
here OF lie 9fense OF fornicauon n Rhode Island 9ncIn
when the defendant indicted"
That IL, beng aecompce in the abortion Now, Sir the
Court in pronouncng Judgment held the decision Of the rule
in the Court below be in admitting the evidence aud
say reviewing the cases:
some Of these recognize distinction suggested In
the cases Of Rex All sais and Rex Ba hwck between
testimony which IL directly crminatyo and that when Is er
NATIVE only when connected with other testimony husband and
wife being deemed competent Witnesses TO give testimony IN
collateral cses IL OF the former description But upon pnc
pie We ana satisfactory ground for the distinction he
supposed disqualification OF husband and VIE 70 give
IN ooaerai cases testimony directly crmlnatYe OF eAch
other Is said the policy OF avoiding dssensohs
ought complete for such dsscnsions dcrng only
ges OF yIrence would be likely result rom testimony
wch lends To- crmnate as well as from that wich Il Directly
crnnatve There logically only two alternatives, either
to exclude the testimony entirely TO admit 10 any extent
accrue dlerefrom in any direct proceeding"
They then cay the rule and the sounder the logical
rule and the philosophical rule to admit the testimony Of the
wife, and it ratified Finally, by way Of authority
Of. one who indeed an oracle Of the law, mean
tie late Judge Cowen, who in note appended to page &c.
volume OF Phillips Upon Evidence" note a. uses this Ian
guagc, and finally sums up
Indeed would to be me settled doctrine both
on minority and principe that husband and wife may be re-
cged 70 contradict cmnae each other collateral mat
ter o. in all except where j. called TO contradict
or crHllnate the other as q party 70 some fraud
Now Sir thus stands the law upon the best Authorities
upon the weight Of the prepondeang decisions England
and BY The Uniform decision in NewYork mandy, that in
collateral procenghat 10 say in action between third
pare-husband wife is competent and compeIabe; GER
anly oompten; there question whether compeable
testify although that testimony tended directly to crninate the
other, husband or wife the might be. But II your
Honor please though the proposition Of law be sound though
tie rule be valid laid down by the learned gentleman il does
not touch this What the terms Of the rule? We are
considering upon the hypothesis that it is sound law that
ue,hcr husband wife in collateral proceeding, shall give
testimony tending TO what'-crminate the other that to
cay, tending convict the other Of criminal charge
heard. never limited that husband or wife
Incompetent collateral proceeding to give evidence
racn tended merely the paragement or to The nfamy Of
10 other.
JERSEY PRACTICE.
Instead Of wasting your time and wearing out your patience
With copous citations Of authorities which have at hand,
selected authority from the State New Jersey where
tie law contended for by my learned adyersae has been
carried extent In any State have selected
say from that State wherein the Limitation Of the rule
state IT, s propounded by the Courtpropounded too
with -y1we reluctance yet popounded under the constrant
Of q uniform stress and strain Of authority The Court
say:
INT The case now before . Court the charge o. the hus-
direct, testimony that he upon his wife
4. e n54,lon was direct the only consideration which
remu. Grim nation IS thin the meaning 81 the rule
The wife rad been ed and acquitted the charge wa Of an
ofelse for which she could be indicted
Now adultery IN NewJerey indctabe ofanse Mark
read this only as an authority FOR limitation upon the rule as
have stated. The Court gay:
was not enough that It attributed moral urpude;
technical crime that r. az act 10 I'D nature ctaDe must De
re imperfect one that accusations in the form Of eyl
pro ciae from husband and & against each oner OF
lt- ly irnuuui1Is ami dsgracefI, though HdctlJe
" a.. -r.. and ME Is 5oye stated was adou,ed Oh Tie
-s,urd OF Us eminent pracucalness. Il Was said in
-. M a,e u .le Id,e delivering the opinion Of the Court
a.. - , involve moral turT ade we settle with some
INVOLVE fraud urpIds II exceedingly difficult OF soiu
Tie OBJECT Of the Court TO establish uniform and
.-sctcl rue, easy De- understood anu applied and the
criterion adopted that husband and wife were inalmsbe
fr - p.pje odrcty charging each other with any odense
irhie. a. NSHutre rIs igatctaJls
That Is the extent " the rule.
The disqualification does form the hazard which
r-lt result party accused Of becoming subjected 20
by VI the eEden'e-thAi would have been
put the ground OF ner-bat from 10 iact
t- 4s eala tina. AL ofe.es which ndct-
a1c W-r OF -uca graceful charle . at Z imputed by one
would IT, fa inevitable result The ndictaJity Of the ofcnse
merely the grade u crime which might not be charged
y tallk" says the judge rule thus adopted should
not De narrowed Ny inclination would not be 10 extend ~
tnat be LEGALLY Effected 10 prevent husband and wife
from charging eaca other WIN any lct "Mch II e--e.Hy IN
famous . ue-a estimation 5-, tAe au nonues 60 NOT war
such lu on a3I We must administer lAe "a" Is
J.. Is handed down 10 us
Thus this Judge eager himself under any circumstances 10
prevent husband and wife collateral proceeding from
tesfyng asns, the other impatient AZ he Il OF the n-
iaton yet frankly admits the restriction and says although
may collide his ideas Of propety and Of law that
be he no alternative under the Of traditional
authority but 10 obey the lmtation-which limitation
"a e--a nv
Admitting it, for arguments sake to be sound that il aco-
aera procecdngthat H. in action between third parties
husband vile testify against each other when their ey
dcnce tends 20 convict them Of criminal odense an
oEease indc,abe IN It's nature.
FNAL CONCLUSIONS.
Now Sir snnpose the plaintiff here admitted TO the witness
box and gives evidence tending convict actually convict
m the wife Of adultery Does that convict her does that tend
% convict does that accuse her OF cmef No sir not IN
New-York BY the Leyca law your Honor aware both
husband denounced 70 death for the act Of adultery
which law though severe must be commanded for lis Impair
,,itv in view Of the tendency Of disposition in modern
civilization which rather applaud the man for his exploits
Of autry heap load Of gnomny the wreched
and unhappy woman So 1850 when the principles OF Pu
tsusu-pncpe borrowed from the Mosaic dspen atonWefe
predominant the Government Of Great Britain those bgod
fanatics passed law denouncng death sganst adultery But
upon the return Of and the Stuar that law was repealed
and never was the law in NewYork it portion Of
the common law Of England that adultery crime open
RIGHTEOUSNESS Is crime and indictable at common law but
adultery never crime at common law. The common law
left adultery the cognzance solely Of the ecclesiastical courts
who chassed pro salute 1HiH6, as they expressed IT,
Adultery never crime by the law Of New York. is no.
a crime to-day with II Is regarded private wrong,
exposing the b ar 70 action for civil damages but
WAS never considered penal OGense making him obnoxious TO
criminal prosecution Hence although the rule contended
m bv the learned gentleman be sound all its parts yet
napplbe here because the testimony which the plaintiff may
give and VIII give though tending convict the wife Of adu
te does not Of criminal ofense So that
FOR those reasons without dainng You with application
o. this argument the second ground presented by the learned