dissenting.
The petitioner was adjudged guilty of contempt of court by the Judge of the Fifth Judicial Circuit of Florida for refusing to obey an order of the court to in effect testify against her husband by testifying for the State before the grand jury of Sumter county in a proceeding wherein her husband was accused of a crime not affecting her personally. On habeas corpus she contends that the judgment and commitment are totally illegal because it is her lawful right to refuse to testify criminating her husband in a judicial proceeding.
The right to punish as a contempt of court a violation *185of a lawful judicial order is inherent in courts of justice to preserve their dignity and usefulness in administering the law. When a court has jurisdiction and has given a party charged with contempt an opportunity to be heard, and the act charged is such that it may be a violation of the lawful order of the court, a judgment imposing a reasonable fine or imprisonment for the contempt will not in general be reviewed by an appellate court for mere errors of procedure, at least in the absence of controlling statutes upon the subject. See Ex Parte Edwards, 11 Fla. 174; Caro v. Maxwell, Judge, 20 Fla. 17; Sanchez v. Sanchez, 21 Fla. 346; Palmer v. Palmer, 28 Fla. 295, 9 South. Rep. 657; Florida Cent. & P. R. Co., v. Williams, 45 Fla. 295, 33 South. Rep. 991; Ex Parte Robinson, 19 Wall. (U. S.) 505; Hurley v. Commonwealth, 188 Mass. 443, 74 N. E. Rep. 677, 3 Am. & Eng. Anno. Cas. 757, and notes; State ex rel. Chicago, B. & Q. R. Co., v. Bland, 189 Mo. 197, 88 S. W. Rep. 28, 3 Am. & Eng. Anno. Cas. 1044; Menuez v. Grimes Candy Co., 77 Ohio St. 386, 83 N. E. Rep. 82, 11 Am. & Eng. Anno. Cas. 1037 and notes; Ex Parte Tillinghast, 4 Pet. (U. S.) 108; Ex Parte Fisk, 113 U. S. 713, 5 Sup. Ct. Rep. 724.
Where a person has been committed to the custody of an officer for contempt of court in violating an order of court, such person may by habeas corpus secure a determination as to the jurisdiction of the court in ordering the commitment and also as to whether the conduct charged constituted delinquency or misbehavior. If it be adjudged that the court had no Jurisdiction or that the conduct was not such as may constitute a contempt of court or that it was the exercise of a legal right, and that the order of commitment is not merely erroneous or irregular, but is illegal or made without authority of law, the person will be entitled to a discharge from custody in order to make effective the judicial determination *186of innocence and to preserve the constitutional right of all persons not to be deprived of liberty without due process of law. See Ex Parte Ed. Senior Jr., 37 Fla. 1, 19 South. Rep. 652, 32 L. R. A. 133; Bronk v. State, 13 Fla. 161, 31 South. Rep. 218, 99 Am. St. Rep. 119. See also Jackson v. State, 33 Fla. 620, 15 South. Rep. 250; State v. Lewis, 55 Fla. 570, 16 South. Rep. 630; Hardee v. Brown, 56 Fla. 377, 47 South. Rep. 831; Ex Parte Knight, 52 Fla. 144, 11 South. Rep. 786; Ex Parte Fisk, 113 U. S. 713, 5 Sup. Ct. Rep. 721.
As shown by the record the purpose of the order of the court which the petitioner declined to obey, was not to require her to become a witness in the case, or to testify for her husband as to matters not involving marital confidence, or to testify against her husband on a charge that he had committed a crime upon her person. The purpose of the order of the court was to compel the petitioner to testify agmnst her husband on an accusation that he has committed a crime upon another person. There is no contention that the wife may not be compelled to testify for or against her husband when the testimony does not incriminate him.
The Petitioner refused to testify against her husband before the grand jury upon the ground that it was her right to so refuse. Even if under the statutes of this State she is not disqualified to testify in the case and is therefore a competent witness to give testimony that is not incompetent or privileged, yet if it is her privilege to refuse to testify against her husband when he is charged with a crime upon another person and it does not appear that he has waived the privilege, such refusal is but an assertion of the privilege which is her right; and if it does not appear that the circumstances of this case are such that the law renders her testimony criminating her husband competent and not privileged, the order com*187mitting the petitioner for refusing to testify against her husband without authority of law, and the petitioner is entitled to be discharged. The husband against whom the order of the court required the wife to testify is not accused of crime upon the person of the wife. The refusal negatives waiver on the part of the wife, and a waiver on the part of the husband is not shown even if in view of the interest of the public in the exclusion of testimony by the wife against the husband, the privilege can be waived by either or both parties.
At common law all persons were in general disqualified to testify in judicial proceedings in which they were parties or were interested, largely upon the theory that interested testimony is, in general, not reliable, and that temptation to perjury should be avoided, therefore as a matter of public policy parties to the action and those interested therein were not permitted to testify as witnesses in cases. And the husband or wife was likewise disqualified to testify in cases where the other consort was a party or interested, chiefly perhaps on the ground of unity of interest, the husband and wife being in law regarded as one person. Whether husband and wife are civilly one or not, each has a substantial interest in common with the other. The disqualifications of all persons as witnesses where they are parties or are interested, and of husband and wife where the other spouse is a party or interested, have been modified by statutes. See Sections 1502, 1505, 3919 General Statutes of 1906.
In addition to the disqualification of the husband, and wife to testify because of interest or unity of interest, the testimony of husband and wife criminating each other was by the common law privileged as being primarily detrimental to the parties; and such testimony was also excluded as incompetent since it was regarded as detrimental to the public welfare because it would impair *188marital unity and harmony and because of the natural repugnance to unseemly conflicts between husband and wife. See Kent’s Com. 179; Wigmore’s Ev. § 2227 et seq. That a privilege existed at common law as to criminating consort testimony. See 1 Brownlow & Goldesborough’s 47; Pedley v. Wellesley, 3 C. & P. 557; Wigmore’s Ev. § 2227 et seq.; State v. Kodat, 158 Mo. 125, 59 S. W. Rep. 73, 51 L. R. A. 509; Wharton’s Cr. Ev. §§ 396, 402, 463; State v. Briggs, 9 R. I. 361; 3 Taylor’s Ev. § 1369, 1453; Rex v. All Saints, 6 M. & S. 194; State v. Woodrow, 58 W. Va. 527, 52 S. E. Rep. 545, 2 L. R. A. (N. S.) 862, and notes, 6 Am. & Eng. Anno. Cas. 180; Wharton’s Ev. § 425; Cartwright v. Green, 8 Ves. Jr. 405a; Phillips on Ev. (4th Am. Ed.) p. 80.
In 1 Blackstone’s Commentaries 443, in stating the common law of England as to the relation of husband and wife it is said: “In trials of any sort, they are not allowed to be evidence for or against each other; partly because it is impossible their testimony should be indifferent; but principally because of the union of the person ; and therefore if they were admitted to be witnesses for each other, they would contradict one maxim of the law, nemo in propria causa testis esse debit; and if against each other, they would contradict another maxim, nemo tenetur seipsum acensare. But where the offense is directly against the person of the wife, this rule has usually been dispensed with.”
The principle of the maxim above given that “No man shall be compelled to criminate himself,” is also expressed in the statement of the law that “a man is competent to prove his own crime, though not compellable.” Undal v. Walton, 14 M. & W. 255. Upon the theory that at the common law the husband and wife are civilly one, and that in the interest of the general public welfare the exemption from self accusation could be ex*189tended to the wife as being in law one with the husband, the provision of section IX of the Declaration of Eights in the State Constitution that “No person shall be * * * compelled in any criminal case to be a witness against herself,” may be regarded as at least a declaration of a public policy that would preserve the privilege of not testifying against each other in criminal prosecutions accorded to the husband and wife at common law.
Where the law permits testimony to be withheld because it is detrimental to the public welfare, the testimony is excluded as being incompetent. Where the law permits testimony to be withheld because it is detrimental to the parties, the testimony is exempted as being privileged. Interested testimony is not ordinarily detrimental to the parties to an action; but as it gives opportunity for perjury, the common law regarded it as detrimental to the public welfare and excluded it as being incompetent. Testimony of the husband or wife criminating the other consort or divulging marital confidences is directly detrimental to the parties primarily, and the common law exempted it as being privileged.
The common law also regarded the testimony of husband or wife criminating the other consort or revealing marital confidences as detrimental to the public welfare and excluded such testimony as being incompetent. See 1 Greenleaf on Ev. § 340.
To abrogate a rule excluding testimony because incompetent, does not affect a rule exempting the same testimony because it is privileged, in the absence of such an intent expressed or implied. The purpose of the statutes modifying the common law rules as to testimony of parties to a suit and those interested in the event of the suit and the husband or wife of such parties or persons is to remove the rule excluding as being incompetent testimony that was regarded as detrimental to the public *190welfare; and there is no expressed or implied purpose to abrogate the rule of the common law exempting as privileged testimony of the husband or wife directly incriminating the other consort or disclosing marital confidences, though the same character of testimony was also excluded as incompetent at common law.
In the case of Mercer v. State, 40 Fla. 216, 24 South. Rep. 154, 74 Am. St. Rep. 185, it was held the statutes that are now sections 1502 and 3919 General Statutes of 1906, “removed the incompetency as witnesses of husband and wife because of the interest of either in both civil and criminal cases, do not have the effect of empowering either of them, when they become witnesses, to give illegal or incompetent testimony by detailing or exposing those confidential transactions or communications that have passed between them in consequence of their marriage relation, that the law privileges and shields from exposure by either of the parties to the communication; and this to preserve a wholesome public policy.” This decision is in line with the authorities and is correct in principle.
If the statutes of this State removing the disqualifications of husband or wife to testify in cases where the other spouse is a party or is interested does not remove the common law privilege as to confidential communications between husband and wife that exist only because of the marital relation, it is not perceived how they remove other common law privileges that exist solely because of the marriage relation and are also founded upon a sound public policy. If at common law there was a privilege accorded to the husband and wife of not being forced to directly accuse the other consort of crime, that privilege related to the testimony to be given and was for the benefit of the accused and of the marital relation in the interest of the general welfare. It is true testi*191mony against the consort accused of crime may not be confined to confidential communications between the husband and wife, but if there is' a basis in public welfare for the sacredness of confidential communications between husband and wife there is a basis of equal if not superior merit for the privilege that each consort had at common law of not being forced ' to accuse the other spouse of a criminal offense. .
Experience has shown that for practical purposes in the administration of justice, the truthfulness of interested testimony may in general be sufficiently tested by cross examination and impeachment of witnesses; ahd the disqtialification of persons to testify in cases because of being parties or because of interest therein or because the husband or wife is a party or interested therein have been removed or modified by statutes in this State. Neither cross-examination nor impeachment nor any other expedient now known can avoid the evil consequences of a husband or wife testifying against the other consort in criminal cases; and whether the rule is called a disqualification or a privilege, the legislature has shown no intent to change it. The modifying statutes specifically refer to the disqualification and exclusion of persons as witnesses because of interest, and though the exclusion as witnesses is modified, the language used is not broad enough to abrogate the privilege of the testimony of husband or wife against the other spouse allowed by law as a privilege against self accusation and exposure of marital confidences or to prevent the exclusion of such testimony as being inadmissible on grounds affecting not interest or mere public policy but the public welfare.
It is stated that the privilege against adverse testimony of the consort antedated the rule excluding such adverse testimony in the ancient common law. If the rule as to incompetency and absolute exclusion of adverse marital *192testimony had the effect to supersede and render somewhat obsolete the rule of marital privilege of exemption from consort accusation, yet if the rule as to incompetency and exclusion is modified by statute, the privilege remains unless a contrary legislative intent clearly appears. Wigmore’s Ev. § 2245.
The testimony of husband and wife against each other is competent and not privileged when necessary to protect one from the other’s wrongdoing, or when justice demands it. See Lord Audley Trial, 3 St. Tr. 401, 414; Storrs v. Storrs, 23 Fla. 274, text 277, 2 South. Rep. 368; McGill v. McGill, 19 Fla. 341; Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. Rep. 165; 1 Greenleaf on Ev. 343; Wigmore on Ev. § 2239; Schouler on Husband and Wife § 84; Turner v. State, 60 Miss. 351; Johnson v. State, 94 Ala. 53, 10 South. Rep. 427; State v. Davidson, 77 N. C. 522; Whipp v. State, 34 Oh. St. 87, S. C. 32 Am. Rep. 359; State v. Harris, 5 Pen. (Del.) 145, 58 Atl. Rep. 1042; Bishop’s New Crim. Proc. § 1153; 2 L. R. A. (N. S.) 862, and notes; Chamberlayne’s Best on Ev. §§ 175, 176; A. & E. Anno. Cas. 881 and notes.
The principles above stated are mere rules of evidence formulated by the courts for the administration of justice. In establishing and enforcing rules of procedure the courts are guided by the experiences of the past, and have regard for public policy and the general welfare as well as for the rights of individuals. Public policy and rules of procedure may be determined and established by the law making power acting within its authority. Legislative enactments are presumed to be for the general public good. There is no vested right or interest in any mere rule of judicial procedure existing at common law or otherwise provided. Rules of evidence relate to judicial procedure, and are subject to legislative action within constitutional limitations securing private rights. See *193Stearns & Culver Lumber Co. v. Fowler, decided at this Term, McGehee Due Process of Law, 180 et seq. and authorities cited; Campbell et al. v. Skinner Mfg. Co., 53 Fla. 632.
Experience has demonstrated the wisdom of the rules respecting the testimony of husband and wife against each other that are so firmly embedded in and safely guarded by that great protector of human rights, known as the English Common Law, which is the law of this State except where it has been expressly or impliedly abrogated or modified by the law making power. Section 59 General Statutes of 1906.
The statutes of this State provide that: “No person in any court or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his interest in the event of the action or proceeding, or because he is a party thereto,” with an exception not pertinent here. Sec. 1505, (Acts of 1871.)
“In the trial of Civil actions in this State neither the husband nor the wife shall be excluded as witnesses where either the said husband or wife is an interested party to the suit pending.” Sec. 1502. (Act of 1891.) “The provisions of law relative to the competency of witnesses and evidence in-civil cases shall obtain also in criminal cases, except in cases otherwise provided by law.” Sec. 3919 General Statutes of 1906.
If it be conceded that the above statutes completely remove all disqualifications of husband or wife as witnesses, thereby making them competent to testify, the statutes do not remove the privilege or authorize the giving of incompetent testimony as recognized by the rules of the common law. Mercer v. State, supra. It would seem however, that the above statutes only remove such disqualifications as depended upon interest; and whether the exemption from adverse testimony of husband or wife *194is regard as a disqualification or as a privilege, such exemption is not affected by the statutes but it remains as at common law. In the cases of Everett v. State, 33 Fla. 661, 15 South. Rep. 543, and Walker v. State, 34 Fla. 167, 16 South. Rep. 80, 43 Am. St. Rep. 186, the objection was not specifically upon the ground that the wife was privileged not to testify against her husband. In neither case was the privilege claimed as such. The precise point presented here does not appear to have been considered by this court in any other case.
Where statutes modify the rules of the common law disqualifying witnesses on account of interest or identity of interest, such statutes do not affect the rules of law relating to incompetent testimony or to privileged testimony, unless an intent to do so clearly appears. See Underhill’s Crim. Ev. § 185; Wigmore on Ev. § 2245; Mercer v. State, supra.
The common law rules giving to husband and wife the privilege of not testifying against each other in judicial proceedings and rendering such testimony incompetent in the interest of the public, being based upon considerations involving the welfare of human society, legislative enactments modifying the rules should be so clear and explicit as to prevent reasonable doubt as to the intent and as to the limits of the change. Barnett v. United States, 137 U. S. 496, 11 Sup. Ct. Rep. 165; Underhill’s Crim. Ev., § 185; Byrd v. State, 57 Miss. 243; Lucas v. Brooks, 18 Wall. (U. S.) 436, text 453; State v. Willis, 119 Mo. 485, 24 S. W. Rep. 1008.
The purpose of the above statutes was to remove the disqualifications of witnesses to testify. As the statutes are in derogation of the common law and are enabling in their nature, they should not be extended further than is warranted by a fair consideration of their terms, taken in the light of the object desired to be accomplished. See *195Hainlin v. Budge, 56 Fla. 342, 47 South. Rep. 825; Bryan v. Dennis, 4 Fla. 445; Morrison v. McKinnon, 12 Fla. 552; New York, People of State of ex rel. Metropolitan St. R. Co. v. New York State Board of Tax Com’rs, 199 U. S. 1, 25 Sup. Ct. Rep. 705; Williams v. Jacksonville, T. & K. W. Ry. Co., 26 Fla. 533, 8 South. Rep. 446; Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 South. Rep. 755, 15 L. R. A. (N. S.) 451; 30 Am. & Eng. Ency. Law (2nd ed.) 958.
The petitioner being a wife, has the privilege accorded to her at common law and not taken from her by statute, of not testifying against her husband when charged with a crime upon the person of another. This privilege is a legal right given for the benefit of the parties and of the marriage relation and for the public good; and even if, in view of the public interest in the exclusion of such testimony, the law permits the privilege to be waived, it is a right that may be asserted and should be regarded as sacred. In refusing to obey the order of the court to testify for the State in a prosecution of her husband for a crime not upon her person, she in my judgment merely asserted a legal right, and by doing so did not violate, but observed the law.
Shackleford, J., concurs in this dissent.