§ 170. Several other exceptions to the rule excluding the evidence of parties to a suit or proceeding were introduced by modern statutes: until the very title "Incompetency of Parties to Suit" was almost abolished c. 99. by the 14 & 15 Vict. c. 99. That statute, after in its 14 & 15 Vict. Sect. 2. "On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having by law, or by consent of parties, authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either vivâ voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action or other proceeding. Sect. 3. But nothing herein contained shall render any ate Radloff. person who in any criminal proceeding is charged with /8: 655. or inform". the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, &c. Sect. 4. Nothing herein contained shall apply to any action, suit, proceeding, or bill in any court of common law, or in any ecclesiastical court, or in either house of parliament, instituted in consequence of adultery, or to any action for breach of promise of marriage.' The 5th sect. provides that nothing in the act contained shall repeal any provision in the Wills Act, 7 Will. IV. & 1 Vict. c. 26. Q 2. Husbands and wives of parties to suit, &c. Common law exceptions. of § 171. The other persons affected by this rule of exclusion are the husbands and wives of the parties to the suit or proceeding. Husband and wife, say our books, sunt duæ animæ in carne unâ (q);" they are considered as one and the same person in law, and to have the same affections and interest; from whence it has been established as a general rule, that the husband cannot be a witness for or against the wife, nor the wife be a witness for or against the husband, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths persons under so great a bias, and the extreme hardship of the case (r)." This rule is not limited to the protecting from disclosure matters communicated in nuptial confidence, or facts the knowledge of which has been acquired in consequence of the relation of husband and wife; but is an absolute prohibition of the testimony of the witness to any facts affecting the husband or wife, as the case may be, however the knowledge of those facts may have been acquired. But the rule only applies where the husband or wife is party to the suit in which the other is called as a witness, and does not extend to collateral proceedings between third parties. In such, husband and wife may be examined as witnesses, although the testimony of one tend to confirm or contradict that of the other (s). And the declarations of a wife acting as the lawfully constituted agent of her husband are admissible against him like the declarations of any other agent (t). § 172. To this branch also common law exceptions (9) Co. Litt. 6 b. (r) Bac. Abr. Evidence, A. 1. See also 2 Hawk. P. C. c. 46, s. 16; Davis v. Dinwoody, 4 T. R. 678; Hawkesworth v. Showler, 12 M. & W. 45; O'Connor v. Majoribanks, 4 M. & Gr. 435; () 1 Phill. Ev. 78, et seq., 10th Ed. are not wanting. Where one of the married par- Charges of personal injury. ties uses or threatens personal violence to the other, the law will not allow the supposed unity of person in husband and wife to supersede the more important principle that the state is bound to protect the lives and limbs of its citizens (u); and it most usually happens that offences of this kind cannot be proved without the evidence of the injured party. Thus, on an indictment against a man for assault and battery of his wife, or vice versâ, the injured party is a competent witness (x); and husband and wife may swear the peace against each other (y). So a husband may be principal in the second degree to a rape on his wife, and she is a competent witness against him (z); but principal in the first degree he cannot be, for obvious reasons (a). So if a husband commits an unnatural offence with his wife, she is a competent witness against him (b). of abduction falls within this exception. ments under the repealed stat. 3 Hen. VII. c. 2, for forcibly taking away a woman, the female, though married to the offending party, was a competent witness against him; the reasons assigned for which by Mr. Justice Blackstone (c) are, that "in this case she can with no propriety be reckoned his wife, because a main ingredient, her consent, was wanting to the contract; and also there is another maxim of law, that no man (u) 2 Hawk. P. C. c. 46, s. 16; Peake's Ev. 173; 1 East, P. C. 455; B. N. P. 287; 1 Phill. Ev. 80, 10th Ed. (1) B. N. P. 287; R. v. Azire, 1 Str. 633. (y) B. N. P. 287; 12 Mod. 454. (2) Hawk. in loc. cit.; Lord Audley's case, 3 Ho. St. Tr. 402, 413; Hutt. 116; 1 Phill. Ev. 80, 10th Ed. The case Abduction. On indict (a) 1 Hale, P. C. 629. (c) 1 Blackst. Comm. 443. See 352. Bigamy. ! shall take advantage of his own wrong, which the ravisher here would do, if by forcibly marrying a woman he could prevent her from being a witness, who is perhaps the only witness to that very fact." This statute is now replaced by the 9 Geo. IV. c. 31, s. 19, which makes it felony to take away from motives of lucre, with intent to marry or defile, or to cause to be married or defiled by any other person, any woman who shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or shall be an heiress presumptive or next of kin to any one having such interest; but the female so taken away is a competent witness on an indictment under this statute also, notwithstanding her subsequent assent to the marriage and voluntary cohabitation (d). § 173. The case of bigamy presents some difficulty. The first wife, or husband, as the case may be, is not a competent witness against the accused; but our books. say that the second wife, or husband, is, after proof of the first marriage, for that then the second marriage is a nullity (e); and the practice is in accordance with this. The truth however seems to be, that the second wife ought to be received in these cases as a witness against the accused, at any stage of the trial, on the same grounds which render the testimony of the wife receivable on indictments for abduction, under the 3 Hen. VII. c. 2 and 9 Geo. IV. c. 31, s. 19 (f). It is an established principle that a woman is a competent witness against any one, even her lawful husband, who has done violence, actual or constructive, to her person; besides, on a trial (d) Tayl. Evid. § 1000; 1 Ph. Ev. 83, 10th Ed. (e) Tayl. Evid. § 994; Rosc. Crim. Ev. 148, 3rd Ed. for bigamy, the objection to the competency of the injured female on the ground that she is the wife of the accused is a petitio principii; for whether she is his lawful wife or he has violated the criminal law by pretending to make her such is the very point at issue. How strange then does it seem, that where by a combination of falsehood, fraud, and sacrilege he obtains possession of her person, property, and perhaps affection, her mouth is to be stopped against him because she is colourably his wife. This latter reason of course does not apply to rendering the second husband competent on a charge of bigamy brought against a female; but the first does, viz., that lawful marriage or wrongful marriage in violation of the peace of the Queen, is the direct point in issue. are competent each other on § 174. Whether the rule in question extends to high Whether hustreason is a disputed point. Many eminent autho- band and wife rities lay down that in such cases the testimony of witnesses against married persons is receivable against each other (g); on charges of the ground of the great heinousness of the crime, and high treason. that the ties of allegiance to the sovereign and the obligation of upholding social order are more binding than those arising out of the relation of husband and wife, and must in the eyes of the law be considered paramount to any other obligations whatever. To this it may be added, that although marriage is an institution of natural law, and as such antecedent to all forms of government, and even to the organization of civil society (h), the complete unity of person between husband and wife is a fiction, which the law dissolves in (g) So said (not decided, for that was not the point in question,) by the court in Mary Grigg's case, M. 12 Car. II.; T. Raym. 1. To the same effect are Gilb. Ev. 133, 4th Ed.; B. (h) Pufendorf, De Jure Nat. |