Plaintiff in error, having been convicted of adultery, ¡alleges as error that the wife of the complainant was allowed to give testimony against him.
He relies on the latter clause of § J¡SJ$ of the Compiled Laws (amended in L. 1860, p. 169, and L. 1869, p. 150) which declares' that “in any action or proceedings, instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.” In connection with this he refers to § 5858, which provides that “No prosecution for adultery shall be commenced but on the complaint of the husband or wife.”
As the former section forms' part of a series of provisions intended to remove most of the old incapacities of witnesses, it may be best understood by considering the changes actually made, in the light of the old law.
By the common law neither husband nor wife could be examined as witnesses for or against each other when either was an actual party to the litigation, whether civil or criminal. Neither could, without the consent of the other, disclose matters learned through the confidence of the marriage relation, and there were many cases (and perhaps it was true in most) where neither could testify against the interests or reputation of the other, even when not a party.' But this last rule was by no means universal, and in most collateral inquiries, where the judgment could not bind the husband or wife of the witness in any way, the general rule was that such evidence was not to be excluded. And when excluded it was usually because it was against the. interest of the husband or wife of the witness, or calculated to create domestic discord. When' the testimony merely told against the witness, and the other did not object, there was no exclusion generally, unless at the *513instance of the witness declining to answer privileged questions.—1 Greenl. Ev., § 842; 1 Phil. Ev. (Edw. Ed.), 84, 85, and. notes. Without going at large into the cases concerning other facts, it is laid down 'with almost entire agreement that there is no legal impediment to the wife’s proof that she has been guilty of adultery, when the question arises in bastardy cases.' These decisions began early ;and have never been' departed from. The English and American cases are referred to in Greenl. Ev., § 844 and ■notes, and 1 Phil. Ev., 78, 87, 95, and notes. The same principle has been recognized and enforced in proceedings .against the adulterer in Com. v. Wentz, 1 Ashmead, 269; Com. v. Shepherd, 6 Binney, 283; State v. Crowley, 13 Ala., 172; and in Van Cort v. Van Cort, 4 Edw. Ch. R., 621, a husband was allowed, in a ease where the wife of another had sued her husband for adultery, to prove the act to have been done with the wife of the witness. The Court held that as neither was a party there was no consideration to prevent it, unless adultery was a criminal offense; and as there it was not punishable criminally, the proof was held competent. In Ratcliff v. Wales, 1 Hill, 63, and in Dickerman v. Graves, 6 Cush., 308, a divorced wife was allowed .as a witness in an action by her husband against her seducer for damages. The cases which, contrary to the weight of authority, hold the evidence of husband and wife inadmissible for such purposes, in suits to which they were •not parties, have usually been those, where the exclusion was put on the grounds of domestic peace, which of course oould not apply where the witness was examined by consent, and which would not properly justify such an objection from a third party.
The present case would come within .the course of 'decisions above referred to, unless the statute has created 'Some new rule of exclusion. But when we consider it care*514fully, we cau find no such intent. On the contrary, we find provisions which would render even the decisions-which have gone furthest in the exclusion of such testimony, inoperative. It may be remarked that none of them have any bearing on the section authorizing the injured party to make the complaint. They all rest on other' grounds.
All of the adverse decisions are rendered inapplicable by §§A?39 and which remove marital disabilities in all' cases civil and criminal, simply providing that neither husband nor wife shall be examined for or against the other' without his or her consent. This leaves the only question to be determined, whether the proceeding by criminal process against the adulterer is a proceeding instituted by the husband, within the meaning of this statute.
It is not presumable that a statute intended to remove disabilities would add new ones — still less can this be allowed, when the disabilities removed cover all the grounds which ever were supposed to justify the exclusion supposed to be retained and enlarged. And neither the language of the statute nor its history will justify this presumption.
A criminal proceeding may be commenced at the instance-of private complainants in most cases, and the fact that in prosecutions for adultery they must be so commenced, does not make the complainant a party in the one ease more than in the other. The complainant is no more than a-complaining witness, and he can neither compel the magistrate, or grand jury, or prosecuting attorney, to sustain the charge, nor assume control of the prosecution when begun-The People and the defendant are the only parties, and it is a stretch of terms to say that the action is instituted by the injured person.
It has always been an aim of the law to favor the' introduction of the most direct and satisfactory proof,, *515unless some ground of public policy opposed it. But to hold that a statute was designed at the same time to remove all objections of policy, and then shut out the best evidence, is not reasonable.
Moreover, we borrowed this statute to a considerable extent from 14 & 15 Vic., Chap. 99, and while we have enlarged the exemptions as to husband and wife beyond that act, yet in the excepting section under consideration we have introduced language not required in England to exclude criminal cases, but necessary here for that purpose, and not necessary at all unless that purpose was entertained. By the English law husbands and wives could not give evidence for or against each other in any criminal case. Our statute has removed this disability at the option of the parties. The English statute declared that “nothing herein contained shall apply to any action, suit or proceeding, or Mil, 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 promiso of marriage.”—1 Ph. Pv., JF. This was in England confined to civil proceedings for adultery instituted by husband or wife, because there no criminal liability exists. If we had adopted this section as there enacted, it might have been supposed to include criminal prosecutions also, and if this had been the object of our Legislature, no change was needed in the language. But they changed it by confining the exclusion to actions and proceedings “instituted by the husband or wife,” and the only possible object fpr such a change was to leave the clause, as in England, confined to civil proceedings.
We think the Court below * committed no error in receiving the testimony. The judgment must be affirmed.
The other Justices concurred.