New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-29
ARGUMENT OF Ml. PRYOR.

shall adhere strictly point in dispute and shall urge
topic which, in judgment docs bear directly on ths
solution Of the problem The question IN s simplest
form Is this: Ii plaintiff in action Of criminal
conversation competent witness his own behalf
Now Sir Is not pretended this side that law
the plaintiff would have been competent witness The
mon law proceeding upon the hypothesis Of the depvy "
human nature and s inability to resist any the least sOa-
ton Of interest speak falsely arbitrarily and peremptony
Guided from the witness box Interested the Of the
and by consequence the parties the very who from s
necessity Of the familiar with the facts
trOyery and most competent shed light upon the sasn
made incompetent to testify These unphiosophcd and
mischieyous ideas exploded by the writ
Ings OF Jeremy Bentham, who propounded and in
cuIcated the principle that all persons shonld
be admitted to testify without respect OF character or condition.
that their ustworthness should be submitted 10 the dis
elimination OF jury in other words he promulgated tho
principle OF credbly substitute for the Old common
law principle of competency. Nor. Sir was it long
before these specullOn5 Of his enlightened reform
incorporated in the practical Jurisprudence Of
Great Britain In 1873 by Lord Denman act the disability 70
become witness arising from interest and nfamy was abro'
gated 1850 by Broughams act the ncapacy
ing ont Of the relation OF party to a cause was
removed; aud in 1853, by Lord Oampbels act
the ncompeency OF cOyerture abolished Impeiled
by the principle and running along the same line.
and by the stages to the same end was the legislation Of
this State Hence in 1886 by constitutional ordinance heinc
paciy witness arising from defect Of religious principle
abolished In 1873 ncompetency Of interest abol
ised 1851 the ncompetency Of party TO the acton WA
abolished. In 1867, the incompetency arising from
the relation OF husband and vile to testify for and
against other abolished and subsequently we have
attained In this heightened and humane course to the degree
that now criminal indicted is admitted to testify his Own
behalf cite this Of legislation IL your Honor please.
vain display Of theoretical Information, but -
showing that when principle both speculative aud PRACTICAL
both in the teachings Of Juris-oonSlS and in tho
acts OF legislatures OF the most enlightened countries
md Tho l4ty tha harris OF In
competency removed and in its stead tho principle has
been deliberately adopted By this State where the question Of
divorce is determined by the enlightened principle u
credibIity.
Now Sir have said that in 1857 act passed by tho
Legislature Of New York removing the incipacy 10 testify
growing out of relation Of party to the Tho
phraeoogy OF that enactment material the present dis
cus>lon;
a party action proceeding may be examined ass
witness in his own behalf the same rs any other witness
With certain exceptions material to this inquiry to this
cause observe the phraseOogy"A party to action
proceeding may be examined witness in his behalf
the any other witness" The terms Of this statute
while subjected to successive notifications but oh
serve never the intent or to the effect OF restricting
ing operation but always with the obvious and es
BILE result enagng and improving its consequences and ecs
cy Hence whereas the Act Of 1851 merely admits party testify
his behalf bya subsequent alteration Of the phraseooy
he made compeable testify against himscf and
statute enactment transferred another section u
the code, reads in these large terms:
"No person offered witness in any action proceeding
in any before any officers acting judicial shall be
excluded by OF his interest the OF the action
proceeding, or because he is party thereto"
This the law which governed this This Is the charter
OF this plaintiffs privilege and prcrogaye to tell in this acon
his sad story OF wretchedness and wrong.
Now Sir back to the Act Of 1851 soon that Act in
noyatng upon the traditional principles Of the
law, aud doing aGon to all the prejudces Of the
profession, albeit plain and unequyocal in ia
phraseoogy, subject discussion and to Judicial
s4.N 4. fatr.,
meaning aud this Act Of 1857 only aud which beg
your Honor. The this although party
the action qi plaintiff party may testify for himself although
the Act Of 1857 did the disability upon party hs
action The question under discussion and popounded for
judicial construction in the discussion Of the
shall cite was this did the act have a outer
beyond that OF removing the disability Of party and
did # operate enable party TO testify not merely for him
self but for his wife husband the may be- Ga
the side IL concndel that the eject OF the Act
ly legaze and legitimate party the action wit.
ness and that it not the intent Of the Legislature tho
effect Of lis enactment accomplish this Interior purpose
namely break down another distinct aud special ground of
competency, namely, Now Sir upon that
question that the decisions to which beg invite your lonors
attention cited The first the Of Potter Marsh
80 Barb page 500 Supreme Court Decision in 1880
ton SANDER against husband and wife for defamation OF
plaintiff by defendants wife Both defendants offered them.
first each in hi and her behalf and,
secondly each for the other. The witnesses
excluded and plaintiff had verdict. The
was appealed to the General Term and the ruling
Of the Trial Judge reversed The question argued and adjndi
Gated General Term whether married persons when
properly parties actions competent Witnesses The
sion the General Term sustained their competency aud this
decision affirmed by the Court Of Appeals in 1863
appears by reference u Howard go Not only that
This decision Marsh. affirmed the Of
Appeals subsequently cited with APPRECIATION and rcogn
lion in the Of Wehrkampt Wlct Abbott, Court Of
Appeals decision; reported also in LIST Keys
No Sir this II Potter MARA the language
which beg reproduce, because II much Ogi
caly much dcci~iycy and with greater weight Of
horty than coud pretend respond Large portion Os
the learned Gentleman argument The Court says:
But in tbs case the defendants offered
~ Witnesses in their own behalf; a. wen m
excluding husband and wife based solely upon
the union u interest created b., the marital relation that dis
record me ~, TlI"'I RI, -, e 10 ,n' sc 5l ,i
Hes 10, o,S D"n by by me,. ,s' , hj ~ ne
witnesses in their own behalf
the letter aud such the pri Of The enactment
~ party action proceeding may be examined IN hs
own behalf same a. amy other witness.
Then the Court proceeds and says
No lmitati N, no qualification, no RESTRICTION imposed -
away b, judicial construction the plain tetcr ~ the statute to
make an exceptional care when one party .ha be- deprived Of
the benefit Of hi testimony while Ii opponent Is per-
nucd 70 testify Clearl! none,
said the Count
Barton -, GirdL ~ Abbott old 25 New lorS Com
mon Pleas decided in lsG The action b, husband and
Nf sgan, husband and Wife -landr 81 plaintiff wife
by defendant, wife Each plaintiff offered himself and hercb
a. a witness. IN hi aud her ovn behalf and
ctrd Held that section 80 n The Code 1850 permitted
husband aud wfc though the husband wife Of .
coiarty. 20 testify IN his her behalf Section 10
Of thr Code the Act u 1867 Your Honor uh observe
that section sa Of the code permitted the husband wis
though husband wife u party 10 testify IN has o.
! her own hcitLt