It sounds like one of those “guilty pleasure” true crime cable TV shows. A prominent and charismatic clergyman fills the pews of his mega-church every Sunday. Parishioners are drawn in by the clergyman’s preaching style which combines plain, everyday speaking with acts of flamboyant showmanship. The clergyman becomes nationally and internationally known not only for his preaching, but also for his involvement in public affairs. When he is at the height of his fame, he is hit with a scandal: A one-time loyal follower and member of the church accuses him of having an illicit affair with his wife. News of the scandal led to vocal accusations of hypocrisy. The clergyman’s alleged adultery was the subject of a trial that dominated the media for months.

This particular scandal—one of the first to get nearly constant coverage from the popular media—unfolded in Brooklyn in 1875. The accused clergyman was Henry Ward Beecher. Beecher was perhaps the most prominent Protestant clergyman, and one of the most famous people, in America. Beecher was accused of having seduced Elizabeth Tilton, the wife of his close friend and associate Theodore Tilton. Mrs. Tilton confessed the affair to her husband. Mr. Tilton and Beecher both asked her to recant. Mrs. Tilton did recant her story, but the gossip mill did its work. The news quickly reached the ears of the feminist editor, Victoria Woodhull. Woodhull was an advocate of “free love,” and Beecher had not hesitated to criticize her from his pulpit. Publishing an account of Beecher’s indiscretions probably seemed like sweet payback (it also got Woodhull arrested on obscenity charges, but that’s another matter). Beecher’s church investigated the matter and exonerated him, but excommunicated Tilton. Tilton, doubtless stung by the unfairness of it all, sued Beecher for “criminal conversation.” Criminal conversation was a tort action brought by a husband against a man who had illicit relations with his wife. The action was based on the notion that a woman was her husband’s “property,” and an affair with her was injury to the husband. Today, the action has been abolished in virtually every state.

The reports of the trial (the first volume of which is online at http://archive.org/stream/officialreportt01tiltgoog#page/n6/mode/2up) give us a brief view into the mores of Victorian America. One interesting colloquy between opposing counsel involved an argument over the application of the marital privilege, allowing witnesses to decline to testify against their spouses. Counsel for Rev. Beecher, William Maxwell Evarts, gave an impassioned speech in defense of the privilege. While acknowledging the general rule of the common law of “draw[ing] into court all evidence that can speak the truth within the rules of evidence,” the search for the truth should not be allowed to undermine “certain institutions of society lying at the base of our civilization, sustaining the whole fabric of its prosperity, its purity, its dignity, and its strength . . .” On the other hand, William Beach, one of the attorneys representing Mr. Tilton, argued that the idea of the unity of husband and wife attached to the marital relation had been “mangled and defaced” by the “progress of civilization.” Once, according to Beach, the woman’s sphere was hearth and home. Now, a wife “may get out into the world and barter and trade and tussle with the energies of commercial and business life.”

Mr. Beach’s rhetorical flights aside, the institution of marriage has indeed undergone no small amount of change since 1875. Similarly, while the marital privilege still exists, it has undergone change over the years. The privilege as it existed in the time of the Beecher trial is more properly characterized as a disqualification. A wife was not allowed to testify against her husband. This disqualification continued into the 20th century. The marital privilege now has two aspects: the testimonial privilege, which provides that a spouse may not be forced to testify against the other spouse in a criminal action (in some states, a criminal or civil action); and a privilege that provides that communications between spouses remain confidential. There are exceptions. Neither privilege applies in cases involving a crime against the testifying spouse, or against the couple’s children. Courts are split on whether the privilege extends to both spouses (i.e., the one making the communication, and the one to whom the communication is made).

The privilege may be waived in a number of different ways. Under the modern rules in most jurisdictions, a spouse may voluntarily testify against the other spouse in a criminal matter, even if the crime was not committed against that spouse. Thus, Katherine Russell, the widow of alleged Boston Marathon bomber Tamerlan Tsarnaev, is reported to be cooperating with law enforcement. In addition, if one spouse voluntarily tells someone else about the communication, or if there is another person present to overhear the communication, the privilege will not apply. This has led to some scholarly discussion of whether e-mails accessible by an internet service provider, should be protected by the privilege. See, Mikah K. Thompson, Twenty-First Century Pillow Talk: Applicability of the Marital Communications Privilege to Electronic Mail, 58 Santa Clara L. Rev. 275 (2006).

 Originally, the disqualification of wives as witnesses was based on the “unity” of husband and wife. The ancient common law rules barred testimony from witnesses interested in the litigation. Since married women had no legal existence separate from their husbands, their testimony was inadmissible, just as their husbands’ testimony would be. The rationale behind the modern version of the testimonial privilege is that allowing a spouse to refuse to testify helps to protect the marital relationship. That privilege ends with the marriage, and a divorced spouse is free to testify against his or her ex-spouse about matters arising before, during, or after the marriage. The confidentiality privilege, however, survives the end of the marriage. Communications made during a marriage remain confidential if the spouses divorce.

Many historians say we may never know if the allegations against Beecher were true. The jury deadlocked on the issue of whether Beecher had illicit relations with Mrs. Tilton. Mrs. Tilton kept retracting her accusations, and retracting her retractions, for many years after the trial. Mr. Tilton was unable to earn a living in the United States, and so exiled himself to Paris. He is largely unremembered, save for his role as Beecher’s accuser. While Beecher never regained his pre-scandal influence, he nonetheless remained a prominent figure in American public life for the twelve remaining years of his life. Some credit his efforts with helping Grover Cleveland win the very close 1884 presidential election.