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

h abandoned BY modern thought and modern enactment
beautiful charming they are and m subjects for the oratoy
my learned friend they arc but not ut subjects io as
russion in alesl argument toa court OF justice
Judge Folger continues:
"Ibaye reached the opposite conclusion II must be con
fered that the object o. the enactment was 10 alter the com
mon law which forbade the husband wife being witness or
against the other Its object was To MAKE aNaaot, ~ ~
trial OF issues OF evidence. the classes OF witnesses ~no @
any party the act0n and rs the wife OF any
the action II declared that all persons falling Wtn S
designations should be competent and c0mpcabe 70 CIV ~
dcuce the any other witnesses declared ii'hS
that they should be thus competent aud eompoAaoe Oh o
OF any party 10 the action"
Now mark, Sir the next sentence.
e." is conceded that when the husband or the wife parry
90 the action and the other Is not at tue VI 10
50 being party to the action, as the case may De- " ~
language OF the Statute"
That is the Statute OF 1867 where he is competent and com
pcabe 70 be a witness. 1t was conceded Sir ana assumed
Inv Cour and counsel although this action between
husband and wife that If alone party to the
acon that might BE- witness in the action And SIT Il
Sa upon grave discussion the spirit and effect OF this
Statute Of 1851 before learned Court conducted by learned
counsel and on all sides was conceded assumed and
dec ared by the conclusion accepted by ITSELF that
where husband the wc alone party as against
The third person that the husband or the wife, as the case might
be- was competent aud compcable witness in that action
c,nendcd that this language does not disclose an IN
tcnon he she might be witness for or against the
other both parties to the action and antagonc IN
it, Task your Honor attention to another case in this author
y. II necessary for to read Sir the Introductory
rcNoW OF the 0llhOTltcstne thsush hutnoii|o9 ann "'
own preceding the paragraph whicl think important But
speak ng Of the old rule, he says;
was to he maintained for the sake Of the present and the
future that by an adherence rule for the public good
tac 10 he c Tor the 4nbc good married folks might be
surcd OF sccrcy neither death divorce could abogate the
dcshor divorce enforced for The sake Of the public thought
could LONGER help harm the parties But the statute IN
c5ists I,ssnd and wife may now and for the future be
ID III
quality"
That is the quality OF confidential privileged communications
Put Sir said that This destruction OF conlusa ie
iic.,y; tha, in it, practical effect must necessarily
introduce wrugc dssnson into the domestic circle and up
root the policy Of unity upon which the principles and
the decision Of the common law rested Well, Sir the law
should BE- uniforms il public policy Of that character is TO he
pursued should be universal There should be no conflict Of
Inconsistency its application TO the varied cases OF human
lie; and is to be preserved it, as our Court OF Ap
peas In this ruled, husband and wife may sue each
ohcr husband and wife may be witness against each
other DOES involve just equally the present ex-
ample conflict with this idea of domestic harmony! Is not
the unity Of the conuga relation just directly assaied
VIII dicord and enmiy in the household be equally nur
ured and popagaed by allowing husband and wife not only to
each other bu when they parties to an action to be
witnesses against each other each swearing in support OF their
dsaccO1an interest testfyng mutual transactions be-
themselves each maintaining opposite theory OF FACT
rejecting upon the codby and integrity OF the other
and this beautiful idea OF unity and nnon and harmony eX
lists today that the doctrine of this case esab
Ished'
Suppose another case Sir suppose husband brings
ton against third party not for the seduction Of his wife, but
for encng her from his home These actions quite com
mon Sir Is the husband witness there, and viii anybody
dispute ' And yet does not that action necessarily involve
the quarrs and dssensOns OF private conjuga ef And
in case Of that character the husband was called
as witness as 1 will show your Honor. The
answer supposed up that the husband was
brutal unkind that he provided poorly for his family that
wife had just and reasonable deserving her home
Why does suggest dsenon, dscord separa
ton, death the family union And yet, the husband is
competent witness for against himself and may be
called by the defendant against himself to ask the
very alleged In the and Sir witness for him
self these between the husband and third party
introduced all the elements which strike the very founda
ton life Of domestic felicity utterly inconsistent Sir with
the idea my learned friend and with continuance Of
the law upon which he rests his objection may
well here SIR refer caseof 18th Robinson, 5i where
In for debauchng and encng away the plaintiffs
wife the alleged that the wife compelled to leave
the plaintiff house by cruel and nhuman treat
rnent and immoral conduct he having introduced lewd
woman h house and kept her there for purposes of sexual
intercourse Held
"That the plaintiff being examined witness for the de-
PENDENT before trial might be inquired as to the matter seI up
and competent TO answer
II makes difference that he called against himself for
the rule exclusion applied equally the husband wife
was against husband and the principle Of the
rule OF exclusion equally applicable to the condition as
the other Now your will bear in mind that in this
Argument the question 10 the nyioabDy Of confidential
communications is Involved all That is question Of
privilege not Of the competency Of the witness As to all
other husband and wife competent but they
arr compcabs TO disclose these confidential communca
And think Sir Of the authorities produced
by my learned friend from the common law but enuncae
doctrine and oil their beautiful theories founded
upon the idea in regard TO these the conferences and commu
which spring Of the intimacy and the faith Of
conjnsa life neither husband wife disclose them
dhrng the lives Of the other after the death Of the
They to the privacy Of that relation
while they are founded upon the faith Of that privacy
The progress Sir Of legislation upon this subject has been
very ably anayzed and presented by my learned FRIEND but
will your Honor permit read again short extract from
the opinion OF Justice James, upon which have already
drawn 50 largely. Your Honor will remember the
slow ami the struggling Of that legislation
First Sir the disability Of interest removed then the da
billy party far permit adversary call oppo
e party then removed all parties, with
ccIdons connected with assignees administrators,
&c Then you will perceive that up TO that period,
all the mpcdimens Of the common law as 10 the com
potency Of the witness removed, except the |
single disability OF marriage And then the
lsw Of m conceived In the spirit and enacted in the policy
declared the Of SOuthwck against SOuthwck, 49th
Y For the purpose Of opening all the avenues Of truth
founded upon confidence not only the integrity but in the
intelligence Of human uaureirs in the integrity that under
the solemn sanction OF OATH witnesses would tell the truth
and second upon intelligence Of the Court and jury that If
the wandered from the truth the could be de-
icced and repaired Aud Sir Mr. Justice James says
"of late years material changes made the law Of
particularly thi. The wife h4s been admitted scpa-
rate rights nj property ana a. consequence 70 separate nights
Of aoon even a. AGAINST the husband himself The marriage
ha- 0s' It's ancient feature Of ndissOuby and
tom bwecn prde- for he breach Of are constantly before
The Cou-is. m the case OF an acton between these
persons, whether IN regard 10 some disputed