PAPERS MOVED FOR. (Hansard, 25 May 1860)

§ SIR JOHN TROLLOPE

said, that he rose to move for an Address for copies of correspondence between the Secretary of State for the Home Department and the clerk to the Spalding board of guardians, relative to prosecutions at the last assizes for the county of Lincoln against William and Martha Brightman for bigamy. He was unwilling in that House to animadvert upon the language of a Judge of the realm, as no one could feel a greater regard for judicial integrity than he did; but in this instance he felt it his duty to call the attention of the House to the circumstances of the case. It appeared that the two persons in question had been married about twenty years ago, but had, owing to some quarrel which had arisen between them, separated on the day of their wedding, and had never cohabited. Not very long after their separation the man had again gone through the ceremony of marriage with another woman with whom he lived, and at the lapse of a considerable number of years found himself obliged to apply to the Board of Guardians for Spalding for relief for himself, his nominal wife, and four children, who were of course illegitimate. The board, having had the circumstances of his case thus brought under their notice, had no other alternative but to institute proceedings against him, inasmuch as they could not charge the nominal wife and her children 1783 upon the funds of the union, her settlement I not being within its limit. A prosecution for bigamy had accordingly been instituted; against him. The case had been tried at Lincoln, and the accused bad pleaded guilty to the charge. The learned Judge who tried the case—Mr. Justice Willes, however, and it was to his conduct in the matter his Motion more particularly related—before be heard the case, and having simply read the depositions, had thought proper to make use of observations to the following effect in his charge to the grand jury. He said that the prisoner was alleged to have committed the offence about eighteen years before, and that he could not conceive, apart from pecuniary considerations, why his name should appear in the calendar, adding that, primâ facie, the case looked more like a persecution than a prosecution, and that it was productive of more harm to bring such cases before the court than if they were not proceeded with at all. It was quite clear from these remarks that the learned Judge seemed to have made up his mind about the matter; but when the case had conic on, the prisoner had, as he before stated, pleaded guilty, and the learned Judge, in passing-sentence upon him, had used language such as he was about to mention, which was taken from the report of the proceedings contained in a journal of large circulation, and which, having taken pains to ascertain the accuracy of the report, he believed to be the unexaggerated record of what actually took place on the occasion. The purport of the learned Judge's observations were, that no men possessed of the commonest feeling would venture to prosecute in such a case; that the prosecution was a cruel one; that it would seem to have been instituted for the purpose of torture; and, taking into account that the prisoner had applied for relief in consequence of indisposition, it was little short of murder; and that for his own part he would be rather in the place of any one in the calendar than in that of the prosecutors. The learned Judge concluded by sentencing the prisoner to one day's imprisonment. But that was not all. It appeared that the real wife of the prisoner had also been arraigned on a similar charge, and that Mr. Justice Willes said the case was one more fit for a romance than for a court of criminal justice, and that such a prosecution could he instituted only by some person with a heart of stone, adding that he would not make himself a party to it by sentencing the pri- 1784 soner to more than one day's imprisonment, and that the board of guardians should be condemned in the costs in both cases. Now the board very naturally felt aggrieved under these circumstances, and had applied to the right hon. Gentleman the Secretary for the Home Department for redress, desiring that they should be cleared from the imputations which the learned Judge bad cast upon them. They were, however, informed in reply that the right hon. Gentleman had no power to interfere either with respect to the language of the Judge or the insufficiency of the sentence, the latter of which questions, he might add, the board of guardians did not raise. All the satisfaction that was got from his right hon. Friend was this curt reply. The guardians, however, were determined not to be held up to the world as persecutors and murderers, and they wrote a second letter to the Home Secretary, being more than ever desirous to free themselves from the imputations of the Judge, more especially as his words, describing them as persecutors and murderers, had been copied out of the local papers and posted in large handbills about the town. All the satisfaction obtained was the following letter from one of the authorities of the Home Department:— Sir, I am directed by Secretary Sir George Lewis to acknowledge the receipt of the letter on the subject of the late prosecution for bigamy at the last assizes for the county of Lincoln, and I am directed to inform you that Secretary Sir George Lewis declines to interfere in the matter. The affair had, therefore, been placed in his hands, and he hoped to hear some explanation from the Home Secretary; and he would now ask that right hon. Gentleman whether he thought the language adopted by the Judge would tend to raise the dignity of the bench. He was sorry that the Judge should have committed himself to the use of language which he was sure the Home Secretary could not palliate or defend; and he hoped the right hon. Gentleman would make such a statement as would soothe the wounded feelings of the gentlemen who had addressed the Home Office in vain.

SIR GEORGE LEWIS

said, that he had not a word to say against the manner in which his hon. Friend had brought forward the matter, which he would admit was one which quite justified him in calling for explanations. His hon. Friend said he did not wish to make any imputation on the integrity of the Bench, and always regretted when any circumstances arose to throw doubt on the decision of a Judge. But he must beg to point out to the House that whatever question might arise with regard to the conduct of the Judge in this case, no person could suppose that there was the smallest reflection on his judicial integrity. The only question was as to his discretion in the use of certain language when passing sentence. The merits of the case lay within a very narrow circle. Two persons of the labouring class were married according to the rites of the Church of England in 1838, but it so happened that before evening came on a quarrel arose and they separated, cohabitation not having taken place. They never met again, he believed, and they considered themselves as not having contracted a valid marriage. Among poisons of that class of life it was not an unusual error to suppose that under such circumstances no valid matrimonial connection was formed. He did not mean to justify that popular error, but the error, he believed, existed. About four years afterwards—i. e., in 1842—each of these parties married again other persons, believing that their second marriage was a valid one. They lived together for a number of years, and only by accident, when the man applied for relief to the Spalding Board of Guardians, it was discovered that his second marriage was invalid, Ids former wife being, in fact alive, and that the children of the second marriage were illegitimate. That, of course, had an effect on the administration of relief by the Board of Guardians, who directed that a prosecution for bigamy should he instituted against the husband at the next assizes. On investigation it also appeared that the wife had contracted a second marriage, and the Board of Guardians thought if they prosecuted the husband they were bound also to prosecute the wife. They gave directions accordingly to their clerk, who was also clerk to the Magistrates. The two cases came before Mr. Justice Willes. The first marriage had taken place in 1838, and 22 1786 years had elapsed before the prosecutions were instituted. The Judge who tried them took a strong view as to the impropriety of the prosecutions. From circumstances that came under his observation, the Judge was of opinion that the prosecutions had been instituted for the sake of costs. His hon. Friend seemed to think that the Judge was imperfectly acquainted with the facts of the case. Now, the prisoners pleaded guilty, and the depositions were in his hand before he charged the grand jury; therefore, the Judge was acquainted with all the facts of the case before he passed sentence. The Judge certainly took a strong view as to the impropriety of the prosecutions, and, if correctly reported, the language was such as no doubt it was desirable a Judge should abstain from using in passing sentence There might have been something that came before the Court which appeared to the Judge to be a perversion of justice; it was impossible to suppose that he could be actuated by any impure motive. He certainly had no communication with the learned Judge, as had been stated in the letter read. He was responsible for that letter. If a similar case came before him he should be prepared to write a similar letter. He believed it was not the duty of the Secretary of State to pass any censure on the language used by a Judge, even if he were of opinion that the language was not altogether discreet. He thought the assumption of such a power by the Executive authority would be an undue interference with the course of justice. He, therefore, at the time declined to communicate with the Judge, in order to ascertain from him whether he admitted the accuracy of the Report brought under his notice by the Spalding Board of Guardians. But assuming that the Judge's words on the whole were correctly reported—that they approximated to the truth—some indiscretion of language had, no doubt, been committed; but the error, if there was error, did not go beyond some fault of temper in passing sentence. The Judge thought it a case in which there had been an improper use of the power of prosecution, and that the indictments ought not to have been brought before the grand jury. In passing sentence he might have used language which was indiscreet and went beyond the necessity of the case, but that was all he admitted.