The New York herald., 1875-01-30


rulel Tor not admitting the husband aud wife as
witnesses against each other. was because OF
against eacn other because this was deemed con- I
trary to The legal policy OF marriage. Husband
De witnesses Tor or against each other, partly
because IL Is impossible that their testimony
the union OF persons. and therefore II they were
admitted 10 be witnesses for other, they would
ms aasnss ese
they would contradict another maxiW, no one is
obliged to commit hlmseli.'" You see, sir, upon
what policy the common law rested. add you See,
sir, how clearly this idea OF unity OF Identity OF
sy the :" this state ate
swear Tor each other they will not be believed,
because their interests are absolutely the same,
and therefore they can give no more credit when
they attest for each other than when a man
attests lor himself 1t would be very hard II q
husband and not attest ior him. such law
would occasion impacaDc quarrels and divisions
But. says this Court OF iaie years in this state,
material and radical changes have been made In
evidence and the competency ana admissibty or
evidence. undermining in great degree the uses
OF and practical abrogating OF the common law
rule. Now If Your honor please. 1t is the effort
oil my learned friend to re-establish that rule, TO
ia inly OF legislation TO ask Your Honor 10 re.ani
mate the abrOgated lessons and principles OF the
as tine the Of law Of e
And hence. as before remarked all the author-
prsty Hs and aecency and pabYc policy WHEN have
been so eloquenty advanced bv my learned irieod,
nouncea "nder deren policy and With ae
ent views, and which ou: court OF last resort Say
are
ADVOCATED BY THE LEGISLATION
OF the past few years. ask your attention again,
sir, toI moment to the case cited and commented
sonthwick, IN the 4sth New York. In that case, Il
Your Honor please. the question presented was
her husband to recover an alleged balance OF
moneys, tney were witnesses Tor or against each
careful and learned analysis OF the law. and % ior
hts patient industry In the formation OF his opin-
is whether the defendant was properly admitted
as witness IN hts own behalf againsl the PLAIN
t his VIE e., y Il IS ella calmea .aa' ns Of
come witness against his wife IN an action IN
which they are anagonistlc parties. have reached
she object OF the enactment was to alter the COM
mon law which forbade the husband or wife being
witnesses for or against each other. noticed q
remark OF my learned adversary that, by the first
section OF the act OF 1867, although II would enable
the vile to be witness against the husband IN
an action brought by him against third party, 1t
did not render the husband competent. That
State wnat was the object and the spirit OF that
law, and If Your Honor Will follow the course OF
legislation, the tardy and reluctant steps by which
1t has been driven by public sentiment and has
reached the present condition, even has declared
the law Of 1867 was enacted as but a complement
TO the other invasion upon common Jaw principles
previously established that It was enacted for the
competent for or against each otner with the
certain exceptions provided for in section two;
that 1t was intended TO uprOOt the whole policy OF
the common law upon TINS subject, and thar the
SENTIMENTAL THEORIES
upon the subject were abandoned by modern
thought and modern enactment, beautiful ana
charming as they are, SIR, ft subject Tor the
1T subject tor discussion in legal argument mi
court OF justice. have reached the opposite con-
enactment established and the letter OF the COM
mon law, where 1t forbids husband and vile
was to make available in he trial Of issues s the
evidence Of classes OF witnesses whom the rules OF
law sXe,uaea these
and ss ws any TO
compeIiaDe to give evidence. the same as
any other witness; It declared further that they
action" Now mark the next sentence :-"It Is
conceded that where the husband or wife Is
husband or the vile may testify, as the case might
be-" 1t was conceded and agreed by Court ana
connseI, althougs this was an action between
husband and wlie, rnat II one alone was party
TO the action that one might be witness. IL was
Of this Statute Of 1857 before iearned Court, con-
Quoted by learned counsel, and on all sides It was
was assumed ana ~ aecarsd by ns
the husband or the wife Was alone party as
against third person. that the husband or the
wife, as the case might De. was a competent wit
ness IN that action But 1t is concluded that this
language does not declare an intention that he or
when both are parties to the action and antago.
nists IN Il. ! ask Your Aonor's attention to an
sary Tor me TO read, Sir, the Introductory review
THE ENGLISH AUTHORITIES
and our own, but proceed to the paragraph
Which think important. But speaking OF the old
present and the iuture that by an adherence to
the rule Tor the public good" The ''pubc policy"
my say tnat ny an TO
death or divorce IL must be enforced, Tor 1t could
no longer help or harm. But the statute in ques-
tlOn dIscards the rule OF the common law to stand
for confidential communications between husband
and wife, 1t would longer exist. The husband and
vile may now De witnesses Tor and against each
otner IN all cases except In those IN which Is
quality that Is, the 49,. quality OF being conf:
that this Is the destruction of conjugal
felicity that in It's principal effect 1t must
INTO the domestic circle, ana destroy that union
npOn wnlcn the principles OF the common law rest
rne 81 law should D BE- firm h II policy Of that KIND IS
Is 1t to be preserved II, as our Court OF Appeals
ruled, the husband aud vile may sue each other.
against each other. Does not that conflict with
tins idea OF domestic harmony Is not the unity
and Will not ulscOrd and enmlty be equally propa-
gated ny allowing the husband and vile to be wit
transactions between themselves, and each rehect-
ing upon the crediolnty Of the other. And II this
beautiful idea OF
HARMONY AND UNION
existed to-day would not snch law totally de.
stroy ity suppose another case suppose hus-
band brings all acton against third party-not
10r the seduction OF his vile or lOr enticing her
from her home, his actions are quite admissible
The husband was witness there, and VINO will
dispute that 1t does not IN that case necessarily
involve the quarrels and dissenslons OF
PRIVATE CONJUGAL LIFE.
The answer sets up-the answer IN this supposed
case sets up-that the husband was brutal, was In
human aud laiIed to provide Or his Iamily-that
the wife mad Just and reasonable cause Tor DESERT
Ing ner home. Why, sir, don't that at once suggest
dlssenslons, discord, separation, death the lam
lily unont And yet the husband Is q competent
witness there against himself, and may be called
very facts alleged IN the answer; and here, sir, n
witness iOr himself, either as between the hus
band and third parties, are Introduced all
the elements which strike vt the very
foundation and lie OF domestic felicity. These
are the very ideas, sir that nv learned Trend ad.
vances upon which he Iounds his objection. may
as well, SIR, here refer to the case on the TIN of
Robinson, page 5Sl, case In when the plaintiffs
wife. and the answer alleged the wife was com.
oIInd IaaN iha- -nnlIc 49,