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

gard 70 morality, IN regard 10 crime.
Roscoe, the Law ni prs, the same commentator "Hon
my learned friend cited on the criminal law, says
$50 though not party the suit neither the wife nor nus
band Of an incompetent witness was competent
Now the proposition made that in the present stae o' our
laws although this husband would be excluded from ahan
ing ~ a witness the Of his wifcs adultery whch Is Tue
only issue in this case although he be excluded from tha
adultery were crimnally punishable in our courts YET
the rules Of law which protect the husband ana "l'c
against each others testimony regulated and cohoo
by the proposition whether the public law makes cre
Wo now, that is novel proposition, and for some causes III
which the Of other States have been led INTO te prop"
son rather apparently find ruleo demarkaon thah
being satisfied upon the principle for the leading case from
New Jersey relied upon by learned friend was case
learned Judge refuses the proposition made 70 MN "
enlarge rule Of admission over that obstacle ~
so his opinion that ought to cover the queso
adultery even when adultery not crime, ana theh
the witness because adultery crime, and therefore "
either view the law was to be excluded say that Is no'ey
For all the English doctrine grew up and ~as enoFceu uu
system OF the law where adultery was not crlmc anu
We, it is spoken Of a crime in the courts ~ " |
Of as eliminating the party 1t Is spoN'n " ~
within the rule that witness Is no' -
TO crjninate himself He Obliged to admit III answer
10 questions for true sexual connection adul'eHe7
or not aiulteres that would crminate himself "neh 'l00
fore our courts and the English courts lay down e Iuc ina
husband or wife shall be allowed to tsty 70 any matters
that crminat the other nobody in England was srcwd enough
IN raise the objection that that the crime that
can be best punished by Imprisonment under Statute or
common law These basardy cases involved nothing but
adultery and yet the mouths Of husband and wife were closed
upon that Why Because it crimnatcd the other party to the
couJuga relation.
RRcEST DECISIONS CITED TO SUSTAIN OBJECTION.
Now the law OF all these States confesedy excludes both IN
the maintenance Of the public justice or OF any
private remedies, the testimony Of the husband or
the wife to the adultery Of the other. Maine, New
Hampshire, Vermont, Connecticut Massachusetts, Ne"
jersey and North Carolina those States also having Statutes
make adultery criminal Now, case is produced in TINS
that undertakes say that in action Of this KIND the
wife husband may thus crmnate the other upon an Issue o
adultery because is made public crime And the Eng
lsh cases TO which | now call your attention concusiyey
show that in that country the legal ephe and description Of
charges Of this kind s criminal and incriminatng refer
your Honor Faus,ett Falsso in the 'h note Of ecce'
astlcli cases, page -, a.
1T i. true this is not q criminal proceeding hiswa in
the ecclesiastical lead 20 any punishment 81 thc
nature Of fine or imprisonment III every s!.
not guilty Of a crime,
and the evidence is excluded
The case Of King u.s. King in Cd Robertson English Eccesi
astcal Reports, Dr. Lushngton says:
1.-THE right Of party exclude depends on the
form Of proceeding II the suit be prosecuted BY articles on
no account answers be at al exaced In civil case
contrary prevails Answers are due but eneraed on that
rule j. this exception that the party giving his answers
- I'm TX cpc.ion which have now to determine
When sc.ted to counsel 10 confne Themselves the 10th
srce of I6e Ull did 80 considering that the validity Of
sbe sr U 1g Would be better eg On that Than
the other articles looking at tt a,CriN.y slY-NVs
in a mi cr without reference any other part VI the libel
would certainly Sc extremely difficult for me 70 say there Il
any which could crminate the wife; but unless
those oycrmcns tend in somc way establish the charge
AGAINST her cannot understand Why thcy introduced Inc
cnuin Of evidence is TO be completed by Inc 81 INES 10"
far be important or unpoTtan' La" not III Po
90 determine.
Ard that at that stage Of the proof although the mere
purport questions might not appear that 1t tended TO
crmnate in this concerning adultery yet that she
should not be compelled to in that behalf until ap'
pearcd that the effect Of the questions wholly innocent
The case Of Schues Holgson, LIST Adams Eccesiastica
Reports English the question in ecclesiastical
touching the parties Of correction OF his excuses
more especially touching and concerning the crimes Of fornca
ton adultery and ncontnency committed BY hin aud com
planned thereof.
In criminal suits the defendants u9on oath not
TO be required even TO thus auce the positions "cn arc not
in themselves crElnatOry'
But that enough u.s. If your ouor please this qucs
on-enough Of authorities this question-which in my
learned friends apprehension has nothing substantial in
sect the quality Of the acts complained Of to base dec
ion upon entirely upon the quality Of
the act as criminal and in the appreciation Of society but upon
the prctence Of the Legislature IN maas it, not making il
public crime.
In the case Of souhwckr souhwlck Rcxford in the 9Th Of
Cowan page PSI the question arises the form Of whether
witness. was bound question that carried that
decree Of mputaOn him of Illicit sexual connection and the
testimony excluded and the Court Of Error upheld it
jushaby excluded the ground that came within the law
which protects witness against eliminating himself and yet
there was indctabe OfTense.
BeachOn the ground that the witness not compelled
to disgrace himself
Mr Eyars-The very cases have read in England the
crimes Of fonicaOn, adultery and nconnency witness
would answer and yet they not ndictable oenses
very famous case in which Lord Mansfield laid down the
general Of evidence bearug upon Of this kind
Il oil Al,
sition az the English law the action called GRIM
ina and treated a criminal one though treated the
civil side Of the court, and the same rgor and
funess Of proofs required part OF plaintiff
ton OF this kind is required by the law for the conviction Of
defendant in criminal case and under that the rule
tabhcd which occasoned much inconvenience in the
Of Damn Kingdom that the marriage must be proved in
action Of GRIM con- with Formally and dstincncs
in criminal indictment and that marriage By reputation could
not be proycdt SO much then, for that view.
Now the question raised by learned friends that
this an action in which the husband side, and
the wife the other Wherever your Honor please the
issue is Of the wfes adultery it is not collateral suit it
collateral proceeding, it action Of libel for
puted adultery the husband the wife it not action
for perjury concerning evidence given such trial is
the very trial itself in which the plaintiff proposes the
Of his action his complaint the adultery Of the wife and
seeks his REMEDY against the defendant the guilty party
compshing that adultery with his wife. And now, what
becomes OF le PROVISIONS ol lhs law Oh loo WHICH Nessy
says that its enabling clauses in respect TO removal of dsQua
iacaons witnesses that husband and wife shall not in
cude the permission Of any wife or husband to testify for
against other action criminal conversation Did your
Honor Of action Of criminal in which
husband the plaintiff, and the wife formal defendant
And yet this whole Statue is sulted If this anagonism be-
tween husband and wife this issue of the adultery Of
the wife is not Of issues and thus form Of
action respecting that issue, which the second Section
Of the Statute of 1867 has denounced as not
being within the competency according TO testimony
Of husband and wife think my learned friends make no
answer to that any judicial find reply
g,t,, ;.,,.f.