The New York herald., 1875-01-30

but in the intelligence OF human nature
First, in the integrity that under the solemn
Second, upon the intelligence or the court ana
jury, tnat n they wandered from the truth. the
sir. Mr.. Justice James says :-"Oi late years mate.
rial changes have been made IN the law OF hus-
band and vile. notn In TINS country and IN Eng.
land, and particularly IN this State. The wife has
been admitted 10
CERTAIN RIGHTS OF PROPERTY,
and, az q consequence. to separate rights or ac-
ton even against the husband: the marriage con-
tract has lost ITS ancient feature OF Indssolnbiity
and actions between parties Tor breach OF ft were
before the courts. In q case OF an ac-
ton between these parties whether in regard TO
some disputed property. or whether by husband
for divorce OF wte Tor separation, II Is Idle TO
state that they stand before the Court ia that
amicaoe attitude in which, IN civil SUITS thoy IN
varlably stood before the common law. Radical
changes have also been effected witnin the last
sixteen years In the law OF ENGLAND In the adms-
Brougnam saying that It's general effect was
that no person should be excluded from In
viso that the same does not extend TO par.
ties enumerated, nor to husband and wife. Lord
Broughams act passed In 1851. in the first section
repeals tho proviso OF LOrd Dumon's act except
that relating 10 husband and vile; the second Sec
tion made the parties competent witnesses; the
third section made husband and wife. parties In
criminal proceedings, incompetent; but the fourth
section rendered either incapable In actions
founded on adultery or breach OF promise OF mar.
any further citations.
Judge Neson--I you can suspend your argu.
The Court then took recess until two O'Clock.
AFTER RECESs-MR. BEACH RESUMES HIS ARGUMENT.
at That hour Mr. Bsaco, taking up al the poInt Hu
where he mad lett or at recess continued his argu-
ment IN the following language
ment OF the learned gentlemen on the otner side.
It was divided into two branches. The first rested
law, and the other was founded upon the special
legislation OF this Stale. The first nave consd-
cred so lar as 1t appears to me important or justl-
nrn foh on1l \
pass from It with single remark. that this case
presents this singular pecullarity, tuat the de-
the world Tor the production OF all possible evi.
dence that could be introduced against him. To
mandlng that - evervsody who G can throw any vt
upon tnts mixed and troubled controversy should
appear and present NIT IT. Today, through his coun-
dence to MS adversary, who awhile ago ne called
upon to appear before mis- CHOSEN tribunal and ex-
hibIt his proof. He makes the objection or incom-
petency 1t Is not for me 10 say, SIR wnether the
confidence in that challenge rested upon the CIR.
cumstance that ll.
THE REVELATIONS WERE TO BE MADE
before his chosen judges, appointed and ruled by
himself and that to-day that challenge s an
and under the sanction OF Judicial law. At any
rate, this is q remarkable Inconsistency. ana the
for the reasons which could thus have aIlered the
tone OF confidence and defiance on the part OF the
defendant. The spirit OF this litigation, although
represented by my learned friend as a mercenary
pursuit upon the part or this planlin for money
Compensation (Which shall allude to hereaiterj,
wolves question OF higher interest to the commu-
nifty and TO the parties Its object is lar purcr and
1t looks to the vlndlcation OF one ior whom vndl.
cation IS necessary. e. the plaintiff In this ac-
tion. II involves the question whether proml-
nent and eminent leader Of the Christianity OF the
age is to be stricken down by the scorn and con-
demnation OF mankind, and the interest that
public and far reaching consequences IS OF far
higher and greater consideration than the technl-
cal and simple question and the ultimate judg.
alone from this Jury. Undoubtedly, slr. the coun.
sci for thts defendant, in pursuit OF their duty,
tions TO the admission OF evidence which may to
their Judgment appear appropriate and proper.
But whether they know II OF not those objections
which seek to exclude the light ana still hide IN
darkness . lt
THE ALLEGED SIN.
Of this defendant reflects no credit upon his char
acter and Will not aid any effort III his justlica-
ton. ] pass now, sir, TO very priel considera-
Smith, and as read that decision far greater I'M
port mas been glven to II Than 1t deserves. Your
Honor VIII be gooa enough to perceive tnat the
husband, In action brought bv himself for
criminal conversation with his wife, was not
and that fact alone. He was offered as witness
generally In the case to sustain the allegation OF
aud the Opinion Of the Court, the single S point and
proposition OF the tact 10 which he was rendered
was to prove marriage between himself ana vile.
And mark the reasoning OF the Court and the
statement Of the accused. The plaintiff was
offered to prove his marriage-was offered as o
and the objection sustained, TO which the
paintin excepted. 1t Is not necessary to
sSas s ina lea
and exclusive TACT; but the Court says:-"t has
long been settled that IN actions Tor criminal
conversation and divorce, and In prosecutions Tor
bigamy, an actual marriage must be proved. and
that In these cases the cOhdb:aS0n or the parties
as man and vile, their oeclara ions or admissions,
n
plantlff's acknowledgment OF the woman as his
wife, and holding her out as sucH to his friends
and acquantances, her reputation In the Iamily
as such, are not snflcent TO maintain the suit"
And he refers TO number OF authorities, and
plaintiff was OF the class held insufficient, and
was properly excluded within these cases. And
that was me ruling and that was the whole extent
Of the appellant, that he was made witne ess
under the act oil 1867, and the Court passed that
very grave ana important question, with
the remark read by my learned colleague, which
ask to repeat. he pIa,nufr was not compe-
tent witness lor whatf Not competent witness
he was not passed upon as such. the plaintitf was
competent witness to prove sucn marriage. And
to that extent and that only did the Court con-
strue the application OF the act OF 1867. The. Court
proceeded 10 say. "rhe act OF 1857 enabling the
husband ana wife to be witnesses iOr or against
each other expressly excepts where the ques-
tOn OF the adultery Of the husband or wife Is
troversy, except TO prove iorlner marriage 10 ac-
tiOns OF DlRamy, and the TACT OF marriage IN ac-
tions Tor divorce." And with tnar single remark,
without any examination OF previous authorities.
without any investigation oil the policy OF the act
OF 1861 the Court passes that very Important ques-
tlUn. submit TO Your Honor that in Itself Is not
a decision upon the point which Is now presented,
where the piainun IS offered as witness
generally in u cause, not only as to the
TACT OF seduction or adultery, but to all the other
questions Of collateral Importance and collateral
issue which havo arisen and Will necessarily arse in
the course OF the investigation. Now, sir, think
may be pardOned IN making one single 8dditiOnal
suggestion. sufficiently intmated, perhaps, by my
learned colleague upon the law OF 1867. 1t has
been read TO Your Honor. BY che first section 1t
makes husband and vile competent witnesses In
a cases and without any Limitation. have read
TO Your Honor IRON the decisions OF the Court OF
Appeals. Its object, It's purpose was to remove
tnat single remaining impeachment from the CON-
potency OF all Witnesses IN all cases subject to tho
limitations contained in section OF the act. That
Is declared by the court oil last resort. Now, the
error OF Justice Smith arose from a SUPERFICIAL con-
sideration of the limitations contained In such
second section. He evidently Inexperienced the
effect OF that section; evidently ne misappned It,
as the ordinary common sense and intelligence OF
any gentleman Will lead him to perceive on listen
ing TO the simple reading OF the section :-"Noth-
ing herein contained shall render any husband or
vile competent or compellable to give evidence