§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 1 (Parties to Action for Breach of Promise of Marriage to be admissible as Witness.)
§ SIR FITZROY KELLY
said, he would take that opportunity of making some general remarks upon the Bill, and would take a short retrospect of the law. During the many centuries in which justice had been administered in the Law Courts of this country, no one, up to a very recent period, could be a witness in any suit or proceeding in which he had the slightest pecuniary interest. At length, in 1828, Lord Brougham in his celebrated speech upon Law Reform called the attention of Parliament to this subject, and from that time until 1842, several successive efforts were made by Lord Brougham himself, by other members of the legal profession, and by Members of Parliament, to qualify and improve the law, but those efforts were made in vain. At length, in 1842, Lord Denman brought a Bill into the House of Lords, the object of which was to remove the disqualification of witnesses on the ground of interest. Lord Denman was opposed, he believed, by every 309 Judge upon the Bench and by almost every Minister of the Crown, especially those who had filled the office of Home Secretary, hut his Bill was passed. For nine years after this the subject was agitated from time to time, and at length, in 1851, Lord Brougham brought into the House of Lords a Bill to make all parties to civil suits competent witnesses. Lord Brougham introduced that measure in a very memorable speech, which had the effect of doing away with the prejudices and objections of most of his hearers. He was, however, opposed by Lord Chancellor Truro, whose authority was the greater because he had been a leading advocate at the bar and had filled the office of Chief Justice of the Common Pleas; he was cautiously and timidly sanctioned rather than supported by Lord Campbell, but was earnestly sustained by another high authority, Lord Cranworth. The Bill, however, became law; and he believed that no change effected in our law procedure during the present century had been attended with more beneficial results. The Bar, the Bench, the Press, and the public were agreed as to this. But in that Act two exceptions of quasi-civil cases had been inserted, owing to the perseverance of those who had opposed the measure altogether. With the first of these exceptions—cases for breach of promise of marriage — Clause No. 1 of the present Bill was intended to deal. He did not deny that considerable objections might reasonably be made to the examination of the parties to this description of action; because loose conversations between two persons might be greatly exaggerated by one of them if a desire existed to establish a contract, and there was the danger of the sympathies of the jury being unduly exercised in favour of the lady. But it should always be remembered that the great object of all judicial proceedings was the discovery of the truth. He thought that the proviso of his hon. Friend the Member for Leominster (Mr. Gathorne Hardy), which would provide that there must be a promise in writing, would go far to remove the objections.
§ SIR GEORGE BOWYER
said, he was aware that in referring to those breach of promise cases he was touching on delicate ground; but he hoped he should avoid giving offence to any one in that House or in higher regions. He thought that the Legislature had shown its wisdom by making cases of breach of promise an exception to the general rule, for a person 310 who was anxious for a good match would not stick at a trifle. If a man were with a woman without witnesses, what was he to do? Let the House imagine the case of a young man who was supposed to be a desirable catch, who had happened to meet a young woman of an imaginative or designing turn, and who had happened to be alone with her. After such an occurrence she might go into the witness-box and swear he had made a proposal of marriage to her which she had accepted. The defendant might go into the witness-box and say he had not; but if the woman was clever, designing, and, above all, good-looking, the great probability was that she would get the jury on her side, and the defendant would find considerable difficulty in extricating himself from the scrape. Cross-examination would not be very effective in such a case. He was afraid that the clause would lead to a good many marriages which would not he productive of domestic happiness. If the clause of the hon. Member for Leominster (Mr. Gathorne Hardy) should be adopted, he thought it would nullify the clause altogether. To be consistent, his hon. and learned Friend should entirely do away with the law of evidence. He admitted that in civil cases the rules of evidence had been carried too far; but if he under-stood this Bill rightly, it was founded on the principle that every possible sort of evidence ought to he laid before a jury. Was his hon. and learned Friend prepared to go the length of admitting hearsay evidence? It was said that the parties who knew more about the matter than anybody else did ought to be heard. That might be true in some cases, but not in others; and in this particular instance the principle was, in his opinion, a dangerous one. It should be remembered that it was the interest of the parties concerned to deceive the Court. If the clause passed, at all events there should be a retrospective limitation; it ought not to apply to promises of marriage given before the passing of the Act, and then after the Act passed men would take care not to put themselves in a dangerous position, and would take care always to have a witness with them to state what really did happen. He objected to the clause and should certainly vote against it.
§ MR. ROEBUCK
said, the arguments of his hon. and learned Friend against the clause were just those used against Lord Brougham's Bill, the merit of which, by 311 the way, belonged not to Lord Brougham hut to Jeremy Bentham. He could not agree with his hon. and learned Friend (Sir George Bowyer) that in a breach of promise case the man was as likely to be the injured party as the woman. It was much more probable that the man was the deceiver. He assured his hon. and learned Friend that he only spoke of women as he had done because he did not know enough of them. His hon. Friend feared that if women were allowed to tell their own story in the witness-box justice would be defeated, but could it be thought possible that if a woman swore, for instance, that his hon. and learned Friend had promised her marriage she would be believed? It was so unheard-of a proposition that it would be sure to be scouted. And why did his hon. and learned Friend think that he would be in a different position from any other defendant in such an action who would have the opportunity of being heard on his own behalf. With reference to the proposition which he understood was about to be made, that the contract should be in writing, it would be a substantial alteration of the existing law, and it was one to which he could not assent. It would, he believed, lead to great wrong and injury being done to women by deep designing men. Let them imagine a young, inexperienced, and pretty woman of eighteen, having listened to the honied words of such a person, addressing him in commercial language, and requesting that he should put his proposal to marry in writing, and duly sign it. If that proviso were adopted, the effect would be that there would be no such thing as a valid promise to marry.
§ MR. GATHORNE HARDY
said, he pitied the unfortunate man who ever defended an action for breach of promise when persons like his hon. and learned Friend (Mr. Roebuck) were on the jury. He could not admit that men were always deceivers and women never; and certainly juries did not deal out anything like equal justice between them. The other day a lady brought an action against a gentleman who was lame and unable to take care of himself, and though her position would have been that of a nurse rather than of a wife, she recovered heavy damages for the loss of that position. In another case some years ago a lady with a large fortune made a solemn promise of marriage to a gentleman, and when he, being jilted, brought his action for the damage he had suffered by losing the material comforts he supposed 312 he was going to obtain, he was dismissed with a farthing damages, amid shouts of contempt. Was this a reciprocal action; if so, was it treated fairly by juries? In the former case, the lady nurse received several thousand pounds; in the latter case the gentleman, after being kept several years waiting, was dismissed with a farthing damages, amidst the laughter of the people in court. Yielding in no respect to his hon. and learned Friend in devotion to those among the fair sex who did not bring actions for breach of promise, and having the greatest contempt for those who did, he would treat these promises in the way which promises of a much less serious character were treated under the Statute of Frauds. Because people were apt to construe that into a promise which was never meant to be one; the Statute of Frauds required that certain promises should be in writing; and if there was any one class of cases in which this precaution became necessary, it was in cases where marriage was in question, and promises were extorted, or imaginary promises were framed by mothers and sisters anxious for the match out of innocent conversations. Lord Brougham had himself made an exception, in allowing the action for breach of promise, the evidence of the parties, and it did not appear that Lord Brougham had changed his mind. No doubt, juries very much resembled in feeling his hon. and learned Friend (Mr. Roebuck). When a young and pretty lady was set before them as having been deluded there was no holding them in. He remembered hearing an old member of the Northern Circuit, who had been a barrister in India, tell the story of a Circassian slave who had murdered the master of a harem there. He, as counsel, had to defend her. It was a bad case, but he said, "Put her in her best dress, the more transparent the better; set her opposite the jury, and I'll answer for the result." And the result was exactly what he predicted. She had stabbed the man, but the jury pardoned the crime for the sake of the interesting woman they saw before them. So in the case of an action for breach of promise. A young and interesting woman would get damages; but if a man was ever so young and interesting be got no damages, but had to pay heavy costs and get scouted besides. For his part, he thought this action might well be abolished, for he did not believe in the broken hearts of young ladies, who, di- 313 rectly they got a dowry in the shape of damages, got somebody else to console them. If, however, you must have the action, why not treat it as a serious matter? Why should not these promises be placed on the same footing as promises under the Statute of Frauds? In a class of cases with which magistrates at petty sessions were very familiar (bastardy), material corroborative evidence of the woman's statement was required, and the law was altered specially to require that, in consequence of the iniquities which had been perpetrated. The alteration which was proposed by this Bill was to create new evidence under circumstances which would make almost a new action, and if it were carried the class of cases to which he had referred would come into the courts as actions for breach of promise of marriage, instead of being as now settled before magistrates at petty sessions. He did not intend to oppose the clause; indeed, he should not vote upon it all, but he should move the addition of the following proviso:—Provided always that no such action shall be hereafter brought unless the promise be in writing, signed by both the parties.It was quite a mistake for the hon. and learned Member (Mr. Roebuck) to suppose that when a promise is made the young lady must sit down on the spot and write it out, and then call on the gentleman to sign it. This was not the case, nor was it the case under the Statute of Frauds. If the promise could be made out from any number of letters or other documents between the parties that was sufficient.
§ MR. ROEBUCK
said, that in the City of London the Statute of Frauds was practically a dead letter. A vast number of transactions took place without any writing at all, the security being merely the character of the parties.
THE SOLICITOR GENERAL
said, he agreed with the hon. and learned Member opposite (Mr. Gathorne Hardy) that this was a very exceptional kind of action. Why it happened he could not say; but his experience in courts of justice was that in actions for breaches of promise of marriage the women had it all their own way, and the men had no chance. The lady was well got up, placed in a conspicuous place, and the attention of the jury directed to her, and, of course, she was generally in tears. If she were placed in the witness box and cried under cross-examination, as 314 they always did, it would be all over with the man. The jury, to show their chivalry, their admiration, for the fair sex, and their contempt for their own, would immediately return a verdict for her. If this amendment of the law were sanctioned, it would be found that a certain class of attorneys would come into Court with a crop of actions for breach of promise, which no single man could stand against except he had the advantage of the hon. and learned Member for Dundalk (Sir George Bowyer), and could protect himself by the vow of celibacy.
put the Question, that the Proviso be added to the clause, and declared that "the Ayes have it."
§ SIR FITZROY KELLY
said, he saw no necessity for the words "signed by both parties." They might be omitted without any disadvantage. Love-letters which would be written evidence of a promise were not usually signed, or were signed generally with initials or with some fancy or assumed name.
THE ATTORNEY GENERAL
said, he thought the purpose of the hon. and learned Member for Leominster (Mr. Gathorne Hardy) would be answered if it were provided that the promise should be "under the hands of the parties charged therewith."
§ MR. ROEBUCK
said, he rose to Order. He was against the Proviso, hut he wished to see their proceedings carried on with order. He believed the Proviso had been declared to be carried.
said, that was not so. The Proviso was not carried. He had put the Question, taken the Ayes and Noes, and had said in the usual manner, "I think the Ayes have it," when that expression of opinion was challenged by the hon. and learned Member for Suffolk (Sir FitzRoy Kelly).
§ Proviso, as amended, agreed to.
§ MR. LONGFIELD
said, he opposed the clause. He said he could conceive nothing more repugnant to the feelings than that any reckless individual should be allowed to call into the witness-box a woman, whom he had perhaps deceived, and subject her to examination and cross-examination as to the nature of her entire past life. The instincts of gentlemen revolted at this action being treated like an action on a 315 bill of exchange or the sale of a bale of goods. He thought that the clause would have a detrimental effect, instead of being a protection to the sex, of which the hon. and learned Member for Sheffield (Mr. Roebuck) was so chivalrous a champion, and for whom he had exhibited more feeling than he was ever known to display for any other portion of the human race.
§ Question put, "That the Clause, as amended, stand part of the Bill."
§ The Committee divided:—Ayes 27; Noes 86: Majority 59.
§ Clause 2 (Parties to any suit instituted in consequence of Adultery may offer themselves as witnesses on their own behalf.)
§ SIR FITZROY KELLY
said, that this was a most important clause. The object of it was not to compel parties in a suit for adultery to come forward and give evidence, but it gave the parties—the man or the woman—the option to come forward and deny the charge. In the Bill of 1851 this clause was not adopted. So great was the inconvenience felt in consequence of that omission that the learned Judge who presided over the Divorce Court had expressed his opinion that a clause like the present should be introduced into this Bill. When he introduced the Bill he took the liberty to read to the House a letter from that learned Judge to that effect. The clause in the Act of 1851, which disallowed parties in such suits to be called as witnesses, had given rise to some strange anomalies. In a suit for adultery neither party was competent as a witness, but if the suit was one instituted by the wife for cruelty and desertion, and if the husband should plead the adultery of the wife, then both parties were competent as witnesses either to prove or to disprove the adultery. Again, if the husband or wife instituted a suit for the restitution of conjugal rights, and if the wife should plead adultery, both parties were competent witnesses. The inconvenience was so great that an Act was introduced which provided that the wife or husband might be a witness in a case for cruelty or desertion, but not for adultery. When these three charges were combined, desertion, cruelty, and adultery, the Court and the jury, so far as regarded the evidence, were obliged to keep them distinct. It was a great injustice that a lady should be charged in court with the crime of adultery—that she should hear a friend, 316 he might say a false friend, swearing to conversations which she was capable, perhaps, of directly contradicting or satisfactorily explaining—and that she should be unable to go into the witness-box to give her evidence. There might be cases of suspicion against a woman so strong as would satisfy a jury of her guilt, but she, who knew more than any other person in existence of all the surrounding circumstances which might tend to explain away what was suspicious, or qualify or give them a colour consistent with innocence, was excluded by our law from saying a word in her own defence. This question they knew had been much considered, not only by the learned Judge who presided over the Court of Divorce, but the most eminent members of the bar who practised in that court, and they all agreed in the policy and justice of the measure he now submitted to the Committee—a measure which he hoped would now meet the approval of Parliament. He moved in line 14, after "adultery" insert "in which any question of adultery shall arise."
THE ATTORNEY GENERAL
said, that by this clause the hon. and learned Member proposed to give this power of offering evidence not in the ordinary way and subject to the ordinary rules of evidence. The hon. and learned Gentleman proposed to make husband and wife competent to appear as witnesses, but not compellable, so that he or she need not appear unless they saw fit. He (the Attorney General) looked with apprehension on the practical working of this; and if it were not for the high reputation of the learned Judge who recommended it, and a practical anomaly which existed in the present system, he should have great difficulty in making up his mind to agree to it. If, however, the law was to be altered, why should it be done in a manner wholly without precedent? Why should not the giving of this evidence be made compellable as well as optional? Such an exception to the general rule made the proposal condemn itself. If the reasons for the change were sound, why not go the whole length, and put evidence of this kind on the same footing as all other evidence? The argument which weighed most in favour of the change was that under the present law we had an anomalous and extraordinary state of things. If an action was brought, in which adultery was charged, neither party could be examined; but if the action was 317 based, say upon cruelty, and in the proceedings a charge of adultery should arise by way of defence, both parties could be examined either voluntarily or compulsorily. If hon. Members could make up their minds to the enormous addition to the terrible scandals of these proceedings which would result from making husband and wife come into the box and give the past history of their whole lives from their own lips, the House would of course pass this clause; but if so, let them be consistent, and let not the examination or non-examination depend any longer upon the question whether the proceedings were commenced for adultery or for cruelty. This would only be adding to the existing anomaly, which it was the object of the clause to rectify. He should certainly vote against the clause if it were not altered so as to make such witnesses compellable as well as competent to give evidence.
§ SIR FITZROY KELLY
said, he could not consent to make it compulsory upon husband or wife to give evidence as to their own adultery. The learned Judge of the Court also strongly objected to it. It was true that adultery was not an indictable offence, but it was a crime; and it was a well-known maxim of our law that no person, whether in criminal proceedings or in guasi-criminal proceedings, could be compelled to give evidence against himself. Under those circumstances he should take the sense of the Committee upon the clause as it stood; but he should propose a proviso, which would perhaps lessen the difficulties of the Attorney General. It was as follows: —Provided always that no person though competent shall be compellable to he called as a witness on any issue which raises the question whether such person shall be guilty of adultery.
§ SIR FITZROY KELLY
said, that if they offered themselves as witnesses they would then open the door to cross-examination to any extent.
§ MR. AYRTON
said, he approved of the proviso, but could not support the clause. The hon. and learned Gentleman had bet- 318 ter keep them separate, and then, if any clauses at all were left in the Bill when it came out of Committee, he would vote for it.
§ MR. SELWYN
moved the omission of the clause. He need add nothing to what the Attorney General had said as to its adding greatly to the enormous scandals which attached to these proceedings; and he could not be a consenting party to anything which would increase those evils. He admitted that great weight was due to the views of the learned Judge of the Divorce Court (Sir James Wilde); but in such a matter as this he felt bound, as a Member of Parliament, not to surrender his own judgment even to the opinion of one for whom he entertained so much respect.
§ MR. MALINS
said, that with respect to this being only a permissive clause its effect would be the same as if it were compellable. A person accused might or might not tender themselves to give evidence; but if they did not, what would be said by the learned counsel on the other side? Would not absence from the witness-box be held to be a direct admission of guilt? He had opposed the creation of this court from the first; and he deplored its existence now as one of the greatest public calamities of the country. He would consent to nothing which would increase and aggravate the evils arising from it, and he should, therefore, vote against the clause.
§ MR. WALTER
said, he felt some difficulty as a layman in offering an opinion on a subject of that kind; but he must take leave to say that he thought the arguments urged against the clause wore by no means satisfactory. His hon. and learned Friends, the Attorney General and the Member for the University (Mr. Selwyn), had spoken in very strong terms—although in terms, no doubt, which were not stronger than were deserved—of the gross scandal to public morals to which divorce cases gave rise. But in a question of that nature what they had to look to was not whether more or less scandal or disgrace would be produced by the operation of that clause, but whether or not it would facilitate the ends of justice by eliciting the truth, and so tend to prevent innocent persons from suffering cruelty and wrong. These divorce cases were in themselves scandals, that was an evil inherent in their very nature, and it could not be helped. But if the effect of his hon. and learned Friend (Sir FitzRoy Kelly's) 319 clause would be to assist in promoting the interests of justice, that, and that alone, would be his reason for supporting it.
§ Clause negatived.
§ SIR FITZROY KELLY
said, that after the opinion just expressed by the Committee on the first and second clauses of the Bill he thought it would be an act of disrespect on his part towards the majority if he were to proceed any further with the measure.
§ House resumed.
§ [No Report.]