Year: 1875

band consented The rule he said the peace Of ami
in anoiheS case Best Chief Justice, expressed his
willingness to receive the eyGende p, p ha be %
fused his Where party consents that his wie sna
be examined as witness against nere can pe & NO & f
exclusion. But the probability that, such evidence were
generally admitted, family dsenson might be inceased Is
I altogether obyated by the circumstance OF the consent


Now here Sir we show only the consent Of the wife,
but the express injunction OF the wife that this should be com
muncated Mr. Beecher 1t was prepared for the very pu
pose communication him. aud entrusted to her husband
for purpose Here then the twartes who are alone
competent to insist upon nyoabty OF what called
confidential communications, agreeing that they SHAH be com
muncatcd another party that party being himself intimately
interested in the subject OF the communication Now
under this ruling Sir that here is the consent OF the
parties to the communication OF this matter to Mr Beecher
for the safety and preservation OF both the parties
and with reference a desired result 1t avoids en-
trey the objection OF confidential communication


But the same applies to the declaration OF the
AGAINST the husband or by the husband and wife jointly


right Of the WIFE the general general , Fe 6 @ M shlI e bas tnc
s1nied m 10 S the Sedans VIE Who as it appeared lived sep
Srie upon an allowance from him. held that her deca
atons to the receipt Of the allowance could not be admitted
in his favor between the husband and wife in the
presence Of third person may be given in evidence against
The husband like any other conversation in which he may
| are subject to the rule as their declaraions'


Now II makes no difference Sir, that this communication
came from Mrs Ton in the shape OF letter or statement
| I
Tlton was present making this declaration through her
husband authorizing the husband to make the dec!ara-
ton or making to the husband In the presence OF MI
Beecher the declaration contained this instrument Here Is
express authority Sir that such communication between the
husband and wife, in the presence Of third
| party can be proved And It seems to me, II your
Honor recurs for one moment to the principle OF the
rule upon which this exclusion founded will perceive
that such declarations be admissible The rule OF excu
son Sir founded in the idea that the communication Is
made in the secrecy OF the domestic household and upon
the faith OF the relation husband and wife; that
il ia communication OF secrecy which each under
stand TO be nyoabe anl which is necessary to be cult
purpose promoting the confidence OF the marital
relation Honor will at grant that this the rule
the principle upon which the rule founded Here com
muncaton evidently made upon such reliance hrs ltoh
never read this statement her husband Ia the conf
dence md faith OF their relation, and upon the
belief that it would be confined TO his own breast ON the
contrary twas made the purpose Of communication to the
very man TO whom communicated Now Sir, the idea
OF secrecy idea that there confidence or h as
resting upon the relation Of husband and wife between her and
Mr. Tton entirely disposed Of by that consideration And
how will your Honor answer this express authority?


JUDGE Ncson-I confess think shoui find difficult on
second thought 10 answer it, would ike 70 near Nj Eyars
on that point


Mr. Beach, had reference Sir II yon Honor will permit
me TO refer the While the gentleman address
sing you Sir will find the additional authority 60 not put
nv hands upon It at the moment.


Mr. Evars-My learned friend puts on the proposition as


understand him. cited from phillips on Evidence that
discourse between the husband and wc in the presence of
a third person. may be given in evidence against the
huband like any other conversation in which he may have
been concerned that the proposition Nov that proposition
correct enough no doubt in the which Il laid down,
would require good deal Of qualification to its not being


confidential communication notwithstanding there was
third person present because there might be third per-
son in the position Of counsel third person in the position
Of physician third person in the position OF parent or
advisor in the very confidence which being repo'ed But
obviously that case was Concerned in inquiry that
kind Now it said that t letter or written paper ad-
dressed by Mrs TOn to one, suppoe-Mr Beecher,
porapsis-not in position u confidential communication,
because was coaaded tae husband 10 be repeated to &r
! Beecher.


! Judge Nelson Tia: is the point


Mr your Honor please the confidence IN the
husband by the wife that 10 be repeated TO Nj
eccer hey interest and FOR the privacy Of the matter and 10
avoid promulgaon. take the wness own view Of e. That
was u.rd In that Interest and for tlat purpose and
the whole object Of this interview the securing
from Mr. Bcccher Of suppression OF any controversy,
| in any tendency It might have, TO involve this ques-
ton Of this wife That is the story. One would suppose
Mr. Bcecher might be trusted II there any truth in this
na,tert1 keep hi, thing private his account people
usually do ia their own interest Bat that . the story that
is the proposition And now when the paper de oyed the
proposition 70 promugato It's contents no'w'handns the
destruction which the wife might be wiling ID be
bound By and which COu be Tcll 7 Nl4t HIt
to have Communicated Mr.. BeccAcr, and, after the
destruction Of this le shred of protection Of the WIFE TO put
IN her hu bands month, on the plea that 1t was not
confidential, a reproduction o. the destroyed paper.
Now, If your Honor please / have not heard any
answer satisfactory to my views Of the Law, and have
not heard your Honor that You had heard any such views
a. entitled speaker take the place Of his wifes statement
and Of that written paper which he has destroyed Is II pre-
tended that anything that fallen from him now, in the way
Of evidence about that paper has changed it from the
position in which it stood when he said that he had
destroyed it, AMI when my learned friends propose TO put the
proposition introduction the consent Of M Becchc
s destruction Wehaye had the narrative Of picking paper
TO pieces Now whenever that is brought up may be time
or me remark upon that but stand now upon my popo


on in the place that the whole narrative inadmss able
as proceeding ont his theory Of from confidence Of
the WIFE the letter much any other part Of it, and the let
ter itself as an item Of evidence orally, because been
destroyed Because, your Honor viii notice that there has
been any change o this copy it, dc-tructon the
orgnl at a, destroyed voluntarily by this husband and
! this wife.


Mr Beach-Thc additional authority which wish 10 draw
your H)aors attention contained IN the notes Philips
Evidence" By Edwards to the Gj;h page Of the first
| volume:


"The husband being dead the vile not incompetent to
prove coming her know ledge by the open declaration
| of her husband in the presence Of other partcs'


referring to the 14h Of New Hampshire other cases


"Bu she disclose communications made her alone
Now the rule exclusion your Honor has already heard





the husband wife of them is dead, to the case
Of divorce And yet it is here held courts that she
may testify what expressyy called open declarations Of
her husband the presence Of third Ny proposition
il that Ton had been present at this interview between
her husband and BeecheT that everything she and her
husband sad upon that occasion would be competent because
in the language Of The authority open declaration
presence Of third persons and avoided entirely the idea
fdnce and faith in reliance upon the matrimonial connection
How is It possible II your Honor please say that COM