HC Deb 31 March 1871 vol 205 cc1013-27

rose to call the attention of the House to the recent acquittal of Martha Torpey, and to the expediency of abolishing the rule of law which in certain cases exempts married women from responsibility for their own criminal acts. The hon. Member stated the facts of the robbery for which Martha Torpey had recently been tried and acquitted—(see Vol. cciv. p. 1753)—and said, he considered that the failure of justice in this case was not due to the learned Judge who presided at the trial—for there was no Judge upon the Bench to whose ruling he should turn with more implicit respect—and therefore the question was, whether the fault lay with the jury or with the law? If he thought that it was with the jury, he should not have deemed it necessary to bring the subject before the House—though, at the same time, it was very probable that the sight of a young and pretty woman, with a profusion of golden hair, and a baby in her arms, might have enlisted the sympathies of the jury in her behalf; for the lady had left the Court with her friends amid the enthusiastic cheers of the audience—a circumstance hardly befitting the decorum of an English Court of Justice—if not exactly without a stain upon her name, at all events free to join her husband in foreign parts, where they might renew their practices which had succeeded so well in this country, but where, perhaps, the law would hardly be so indulgent to the lady as she had found it here. The Judge, it seemed to him, had explained the law clearly and in accordance with the doctrine laid down in Blackstone, and the verdict of the jury was to be referred to the fact that they had regarded one part of the learned Judge's charge and neglected the rest. The doctrine was laid down by Blackstone in these words— The principal case, where constraint of a superior is allowed as an excuse for criminal misconduct, is with regard to the matrimonial subjection of the wife to her husband: for neither a son or a servant are excused for the commission of any crime, whether capital or otherwise, by the command or coercion of the parent or master; though in some cases the command or authority of the husband, either express or implied, will privilege the wife from punishment, even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society, by the coercion of her husband, or even in his company, which the law construes a coercion, she is not guilty of any crime—being considered as acting by compulsion and not of her own will. But even with regard to wives this rule admits of an exception in crimes that are mala in fe, and prohibited by the law of nature, as murder and the like; not only because these are of a deeper dye, but also, since in a state of nature no one is in subjection to another, it would be unreasonable to screen an offender from the punishment due to natural crimes by the refinements and subordinations of civil society. In treason also, (the highest crime which a member of society can, as such, be guilty of), no plea of coverture shall excuse the wife. He was forced, therefore, to the conclusion that it was the law that was in fault. It was intelligible that the presumption of law through which Mrs. Torpey had escaped should be in force at a time when a wife was subject to violent treatment from her husband—when the husband was allowed to use forcible coercion towards his wife, and to beat her without the interference of the law; but he would ask the House whether, as the law between husband and wife was at present understood, there was anything to justify the innocence of Mrs. Torpey on the ground of coercion? Again, if coercion was to be received as a presumption of innocence, how could they rationally confine it to the case of husband and wife? It was absurd that the presumption of coercion should be allowed in the case of a wife and not be allowed in the case of a child of eight or nine years old committing an offence in company with its father. Again, a man's mistress was often more completely under his control than his wife; and yet if by brutal violence on the part of her paramour a woman was induced to commit forgery, for example, she would be convicted, not because she was a free agent, but because she was not a married woman. Our law did not presume that the wife acted under coercion in a case of murder in which she was implicated along with her husband; and in the present instance if the shopman had died through the application of the handkerchief to his face, Mrs. Torpey would have been held responsible for her acts; but because she had not succeeded in killing him, therefore she was presumed to be irresponsible. Such a distinction was wholly arbitrary and irrational. The true account of the origin of that legal presumption was believed by Mr. Malcolm Kerr, the learned editor of Blackstone, to be found not in the subjection of the wife to her husband, but in the long obsolete doctrine of the benefit of clergy. It was therefore an illustration of how, in this highly conservative country, a legal rule remained embedded in our jurisprudence long after the reason for it had ceased to exist. There was nothing in the present relation between husband and wife to justify the retention of that presumption, and in seeking its abolition he confidently claimed the sympathy and support of the hon. Member for Leicester (Mr. P. A. Taylor), and every modern advocate of what were called woman's rights, because of course women, whether married or single, could not well have all the rights and privileges of the sterner sex, and yet be treated as not accountable for their actions, and having no will of their own. The presumption he was condemning might, perhaps, have been all very well in times when women and children were hanged by scores for petty thefts; but in the present day, in jury cases, above all in criminal cases, it operated most mischievously. During the whole period that he himself had been connected with circuit, he did not remember a single instance in which a married woman indicted with her husband was found guilty of any crime except in one case, in which a very shocking murder of a child had been committed for the sake of obtaining the burial fees payable on its death. No doubt if that presumption were swept away, juries would still be found who would wrongly acquit young and pretty women, especially if they were plenty of golden hair; but then the fault would be the fault of the jury—not that of the law. Why should there be any presumption in the case? Surely the proper view to maintain was that every subject of the realm, man, woman, or child—being of mental capacity to distinguish right from wrong—should be held amenable for their own criminal acts. He could understand that a Judge, dealing with the case of a woman or child, might adjust the penalty to the apparent moral guilt; but the rule he had stated should be the law. He thought that the law as it now stood should no longer be continued, and he saw no reason why legislation should not be immediate. He might be told—as, indeed, had been urged by the Lord Chancellor in "another place"—that that subject was part of a larger question and should be included within a comprehensive measure dealing with the status of married women; but the same objection might be, and, in fact, generally was, raised against almost every conceivable proposal brought forward on any matter by any private Member. Last year, for instance, there had been the greatest difficulty in passing the measure granting rights of private property to married women; and when the Bill came down from the other House, it was so altered that its authors did not know it. The subject was one of great importance, and he trusted that the Government would see its way to dealing with the subject in a comprehensive manner. He was quite sure that such a Bill, if passed into a law, would meet with the approval of all sensible men; that the author would go down to posterity as a great criminal law reformer; that we should then get rid of a great blot upon our system of criminal jurisprudence, and prevent the possibility of a recurrence of the abuse referred to, which was so loudly and so generally complained of. He thanked the House for the patience with which he had been listened to; but felt sure that if the discussion of the subject resulted in some such measure as that he had described, the time would have been well spent.


said, as he had been professionally engaged in the case of Mrs. Torpey, and had consequently some knowledge of what did really take place at her trial, he felt he was in a position to give some useful information on the matter, and to correct one or two errors into which the hon. and learned Gentleman (Mr. Osborne Morgan) who had just spoken had fallen. To dispose, first of all, of Mrs. Torpey herself, it was an error to describe her as presenting to the Court and the jury a most attractive appearance, with golden light-flowing tresses falling gracefully down her back. On the contrary, her hair was closely braided to her head, and her appearance was very diminutive. Perhaps notwithstanding, her looks and demeanour had a certain influence with the jury; because it was certainly urged with great force by her counsel, pointing significantly to the prisoner at the bar, that a woman of her diminutive appearance could never be supposed, from her own free will, to have been engaged in such an act of violence as that which was charged against her. There was also another important element that no doubt spoke eloquently in her favour—namely, the baby which she carried in her arms. Now, he thought that the attention of the hon. and learned Member for Salford (Mr. Charley) ought to be called to this matter of the baby; because if his hon. and learned Friend did not introduce into his Bill on the subject a clause to prevent the introduction of babies into the docks of criminal Courts when the mothers were on their trial, he (Mr. Straight) was afraid that his measure would prove somewhat defective in its operation. It had been said that this presumption of law was unreasonable. He concurred in that view. During his experience of 10 years in criminal Courts, he had never known but two cases of married women tried with their husbands being convicted. What appeared to him to tell greatly in favour of Mrs. Torpey was the fact that she stood alone in the dock, while her hus- band had succeeded in reaching a place of security on the Continent. There was, no doubt, a great deal of sympathy awakened by the feeling that she had to bear the whole brunt of the ignominy and disgrace involved in the charge that was made against her. It was asserted that no legislation could correct the sentimental feelings of a British jury when they saw a woman placed in the position of Mrs. Torpoy—particularly when strengthened by the presence of a baby in arms. The Judge who presided on the occasion could not have placed the matter in a clearer light before the jury than he had done: nevertheless, the presumption of law submitted to them was construed by the jury in a manner favourable to the accused, and she was consequently acquitted. Now as to this presumption of law, so far as he knew, it was only allowed in cases where the husband was present when the particular crime was committed, and in cases where a capital offence was not committed. For example, if a woman induced a man to accompany her into a dark and lonely place where her husband lay concealed, and both assailed the man with violence, robbing him, and doing him grievous bodily harm—in such a case the presumption of law would lie: but if the man were murdered by them, no such plea would be allowed in favour of the wife. That appeared to him to be a most unreasonable distinction for the law to make, and one which he confessed he could never understand. He hoped that something would be done to remedy what he considered was a great difficulty and inconsistency in the administration of the law, and which in the case in question, had resulted in an unfortunate miscarriage of justice.


argued that this presumption of law should not be allowed to prevail except in cases where its justice was clearly shown. In all cases when the facts could be proved by evidence the result should depend on evidence alone. According to Hale's, as well as Hawkins's Pleas of the Crown, this presumption of law was liable to be set aside if it were shown that the wife had taken the leading part in the commission of the crime. Therefore, in the case referred to by the hon. and learned Member for Shrewsbury, the rule would not apply, since the woman was clearly a principal in the crime. There was no country in Europe except England that admitted this presumption of law. Even in Scotland coercion by the husband was not recognized as a plea on the part of the wife when charged with a criminal offence. Now, it appeared to him to be most desirable and essential that the general law of the United Kingdom in penal matters should be precisely the same. This law of presumption in the case of the wife accused of crime originated in barbarous and pre-civilized times, when the wife, both in law and in fact, was rather the slave than the companion of her husband, when she had no property of her own, could neither sue nor be sued, and was held to be dependent upon her husband for even the bare necessaries of life. In those times the wife was subject to corporeal chastisement from her husband, without any restraint short of doing her grievous bodily harm. Happily that state of things had been greatly changed by modern civilization, and there now existed many Acts of Parliament for the protection of her person, as well as of her separate rights of property. He thought this presumption of law could in no way be justified by reason or argument, and that it was inconsistent with the first principles of criminal jurisprudence. The authority of a father over his son, and that of a guardian over his ward, were both greater than that of a husband over his wife; but in neither case could this authority be pleaded as an answer to a criminal charge. The law, too, was inconsistent, for this influence was not acknowledged in our civil Courts; while even in our criminal Courts it was no answer to a charge either of treason or murder. Yet, surely, if the idea of the law was that a wife was an irresponsible agent was a correct one, the nature of the crime should mate no difference. By the law of Scotland the obedience of a wife was to be yielded to her husband only in things lawful—in things unlawful his coercion afforded no excuse. In the laws of King William, the Lion of Scotland, framed nearly seven centuries since, the following doctrine, full of common sense, though written in somewhat bad Latin, was laid down:— Sed cum fuerunt ambo participes, sic erunt quoque et in pœriâ. Et licet uxor obedire debeat viro suo, tamen in atrocibus obedire non debet. Et sic debet uterque puniri secundum demerita sua. He coincided with the hon. and learned Gentleman (Mr. Straight) in thinking it both unreasonable and inconsistent to allow this plea on the part of the wife, except in cases of murder and treason. Why should the nature of the crime alter the rule of law, which in these cases departed from the reasonable way of deciding matters by evidence in favour of a most arbitrary conclusion? This presumption of law was neither founded upon principle nor warranted by an experience of its benefit. He trusted the plea would be abolished, and no excuse permitted for the commission of crime, except overpowering and inevitable compulsion. He trusted that the Government would take up this question, with the view of abolishing this plea, and of thus terminating that state of things which had occasioned a scandalous failure of justice.


desired to say a few words upon this important and dangerous subject—he used the term "dangerous," because he believed that the two branches of the Legislature had been going beyond their province in dealing with this matter. In "another place"—he would not say where—he had recently heard the administration of justice carelessly questioned, and our jury system attacked by persons who seemed to know very little, and to care very little, about the principles of our Constitution, and the antiquity and value of the institution of trial by jury. He strongly protested against such proceedings. He had been pained that evening by hearing a young, learned, and amiable friend, for whom he had a great esteem, and whose career at the Bar would, he hoped, be distinguished, fall into a similar error; but he believed hon. Members were forgetting themselves when they attacked the admirable tribunal which was constituted to do justice to the people of this country. He presumed that his hon. and learned Friend who had just sat down (Mr. Jessel) had never held a brief in a criminal Court in his life, yet he had ventured to term the verdict of the jury in the case immediately under consideration a scandal. He (Mr. M. Chambers) protested now, as he had protested before, at the manner in which ignorant Members—by the use of the word he intended no offence—were in the habit of assailing those who had to administer justice either in the civil or criminal Courts of the kingdom. He protested also against the practice which appeared to be creeping in of hon. Members, when they found a supposed fault or defect in the law which appeared to them to require amendment, instead of bringing forward a measure in which the evil and the proposed remedy might be discussed, throwing the matter before the House by moving an abstract Resolution, and hoping that somebody else would take the question up with a view to practical legislation. They thus aired their opinions upon the subject without committing themselves to any definite course. He would not follow his hon. and learned Friend into a discussion of equity law, which he did not understand equally well; but the principle of English law was, that when a wife acted in the presence of her husband she was deemed to be under his control and dominion. That doctrine was founded, not upon any technical rules of lawyers, but upon the religious, as well as the moral sanctions and conditions of matrimonial life. His hon. and learned Friend, who was a Chancery barrister, had said that the ancient law was founded upon the circumstance of a woman being a slave, and that this principle had found its way into the English law. The wife still was a slave in one respect, for she was the slave of her own affections. Of course, he was not speaking of any agitation now going on with regard to women's rights, and things of that sort; but he maintained that an attached affectionate and submissive wife did, in fact, as well as according to the theory of the law of England, do acts which she would not otherwise commit, under the control and influence of her husband. It had struck him many times that this presumption of law was most humane, for it was based upon the well-known submissiveness of a tender wife, even towards the worst of husbands; and a devoted, domesticated wife, they knew was but a weak instrument in the hands, possibly, of a weak or criminal husband. There might be, and no doubt there were, occasional and exceptional shrews in modern as well as classical times; but the law was made for the generality of wives, and, according to his humble judgment, the rule of presumption was a good one, and ought to be continued. [A laugh.] Chan- cery barristers might laugh; but they had never practised in the criminal Courts, and had few or no opportunities of observing the anxiety and care with which juries endeavoured to decide. In the case in question the law had been correctly and clearly laid down by the Recorder, and the jury having heard the evidence and the charge, had exercised their judgment by returning a verdict of "not guilty." Even if there had been a failure of justice in this case, which he did not acknowledge because he had not the means of forming a judgment, it would be a most dangerous course to alter the law, because there were occasional failures. Such a proceeding could not be confined to the criminal law. They would have to extend it to civil and equitable cases. If, on the other hand, it was the law that was in fault, the proper course would be to call the attention of the Government to it, and ask for consideration, and, if necessary, for alteration. But he protested against Members occupying the time of Parliament time after time upon the mere opinion of newspaper writers, that there had been a failure of justice in some particular case.


said, he did not propose to express any opinion with respect to the particular case of Martha Torpey and her trial. No one could give an opinion entitled to any weight unless he had a complete and perfect report of the case. But he might observe that if the representations of those who complained of the verdict were correct, the acquittal was not justifiable. This, however, did not prove the law required alteration. It was not clear that alteration would in that case have led to a different result. Indeed, he had a strong misgiving that if the learned Judge had put to the jury the affirmative proposition—was the woman under the coercion of her husband—the verdict would have been the same; because, in the view the jury took, the same facts which were insufficient to overcome the presumption of coercion would have been sufficient to justify the affirmative proposition that she was acting under the coercion of her husband. It appeared to him that the alteration of the law was surrounded with much more difficulty than appeared at first sight. The relation of husband and wife was one of a peculiar character, demanding the most perfect confidence between the two parties. He was not prepared, therefore, to lay down the doctrine that a wife, acting in concert with her husband, was to be answerable in every case in which the criminal law made the husband liable. He was not prepared, in the first place, to accept the proposition that the wife was to be answerable for complicity or mere knowledge—for that degree of guilt which was created in law by a person becoming cognizant of, or in some indirect manner connected with, some crime. He regarded punishment for that particular offence in the case of a wife towards her husband as unjustifiable—for was the wife to become a spy upon, and informer against, her husband? If that were to be so, they would lay down a doctrine incomparably more dangerous than the occasional escape of a criminal under the doctrine of presumption. In the second place, he was not prepared to have the wife punished in crimes of an extremely light or trivial description, such as petty larceny, under circumstances which, although leading in the case of any other two persons to a fair inference of combination in active guilt, were in this peculiar relation consistent with merely passive conduct on the woman's part. He strongly suspected that this doctrine of presumption, as it existed in our law, was the invention of wise Judges, who, finding that public feeling in the cases he had mentioned would revolt against the punishment of the wife, devised this ingenious subtlety as a ground of distinction to save her. He doubted very much whether it was clear that the exemption from the presumption was confined to cases of murder and high treason. He should wish to see it decided by an appellate tribunal whether there were not crimes accompanied by great violence, as well as murder or high treason, outside of the doctrine, and whether the doctrine was not confined in its original application to cases in which our own feelings would tell us that it would not be expedient to enforce the law to the utmost. The doctrine was, he believed, a thousand years old, and after the repeated revisions of our criminal law, which had been made without its operation having been referred to by Royal Commissions or great legal writers as a grievance, he was of opinion the House ought to pause before proceeding to act on a single instance in which a jury may have happened to go wrong. The sanction of judicial authority, or the recommendations of a Commission appointed to investigate the subject, were, he contended, always a preliminary to such changes as that proposed, and he doubted very much, if the law were altered, when a line of distinction came to be drawn—and some distinction must be drawn between cases of husband and wife and other persons—if it would be a better one than that which had existed for so long a period.


said, he entirely concurred in what had fallen from the right hon. and learned Gentleman who had just sat down (Dr. Ball). The hon. and learned Gentleman who had introduced the subject (Mr. Osborne Morgan) had not laid the smallest foundation for an alteration of the law. In what did the present case consist? In a wrong verdict against the right law as it had been laid down by the learned Recorder; and in spite of conclusive facts. Now, a wrong verdict could not be remedied by any alteration in the law. He did not think, he might add, that it was in general wise to censure the acts of juries. His experience of those tribunals was that they did not go astray in a larger proportion of instances than other tribunals, and, on the whole, they administered the law well. His hon. and learned Friend had founded his argument against the law on a ridiculous presumption; the foundation of the presumption really being that the law of England regarded with favour and approval the affectionate obedience of the wife to her husband, and recognized the marital control which, as a consequence, he was enabled to exercise as excusing her from the consequences of minor offences. The hon. and learned Gentleman said that the presumption went to the extent of including highway robbery. He (Mr. T. Chambers), on the contrary, must maintain that it did not extend to crimes of violence like that, in which the wife took an active part; and if the hon. and learned Gentleman would look carefully into the passage from Blackstone which he had quoted, he would find that the crime of murder was there given as an illustration, and by no means as an exhaustive description, of the cases to which the presumption did not apply. In his opinion the presumption had, on the whole, worked benefi- cially; and he hoped that while so many legal reforms of a more pressing character were needed, the Attorney General would not trouble himself about this matter. It could afford to wait. Even if the law were to be altered to-morrow, it would not be very easy to determine how the alteration was to be made. The truth was that a jury acting under the influence of sentiment and feeling might give a wrong verdict in any case.


said, he should not be deterred by the denunciations of the hon. and learned Member for Devonport (Mr. M. Chambers) with respect to the conduct of some noble Lords who had ventured to canvass the verdict in question, from following their example. It appeared to him that, although, as a general rule, the House of Commons ought to be very careful how it canvassed the verdicts of juries, yet that when great public interests were involved, and when there was reason to suppose there had been a miscarriage of justice, the matter was one which it was fully within the province of the House to discuss with a view to see whether the law stood in need of alteration. He quite concurred with the hon. and learned Gentleman (Mr. T. Chambers) that the fact that a wrong verdict had been given did not furnish a sufficient reason why the law should be altered. The case, however, which had been put by the hon. and learned Gentleman who brought forward the subject was not one of a wrong verdict, but of a wrong verdict in consequence of a wrong legal presumption, and he could not help thinking that if there had been no such presumption there might have been no such verdict. The evidence, so far as he was enabled to form a judgment, went to show that the woman, in the present instance, had taken an active part in the robbery. And if the verdict was wrong, why was it wrong? Was it not, in all probability, because of the presumption of law? "But," said the Common Serjeant, "the presumption of law does not apply to cases of violence"—but in saying this he was going, he thought, too far; for, although he was aware that that doctrine was laid down in some text-books, yet, if he was not mistaken, a different doctrine was laid down in others. The learned Recorder, at all events, had not, he believed, taken that view; for, so far as he could learn, he had put it to the jury that there was such a presumption, although he also put it to them that the presumption was rebutted by facts of the case, which showed that the woman was a free agent. He understood, further, that if a letter written by her had found its way to the jury it would have placed the matter beyond all question. He could not doubt, he might add, that the verdict was one which the learned Recorder could not approve, and that it was brought about in a great measure by the presumption of law. That led him to inquire, whether the presumption was or was not well-founded? He had no doubt it was originally based on those fundamental notions of justice which must more or less enter in the codes of all civilized nations. That principle of law was that a person was not answerable criminally for an act committed under a compulsion which he was unable to resist. But our law did not stop there. It laid down a presumption with respect to a particular class of felonies only, where the husband and wife were together, and there the law assumed—whether the fact was so or not—that the wife must be under the husband's compulsion—at any rate, until strict proof was given that she was not. But he very much doubted whether this legal presumption, even if originally advantageous, was now tenable. The reason for the presumption was given by Sir Robert Brooke, who, writing in the time of Elizabeth, in the curious mixture of Norman French and Latin to be found in the law books of that day, said— Ratio videtur eo que le ley entend que la feme ne osa contradire son baron. If it were true that in the days of Elizabeth no wife ever ventured to contradict her husband, the times were greatly changed. Now it would be easy to point to husbands who did not dare to contradict their wives. Blackstone stated this to be a very ancient presumption of our law, for he traced it back to our Anglo-Saxon ancestors—or even further back, to those Northern nations where the same rule applied both to wives and to slaves. Probably the condition of these two classes was not then very different; and in those times the presumption might have been a fair one; but it was entirely inapplicable to the present time, when the position of women had been altogether altered, and women unquestionably thought for themselves, The ladies who advocated women's rights would probably repudiate immunity from punishment on the degrading plea that they had no wills of their own. This was a matter which must be considered. In his view there was no better ground for the presumption in the case of husband and wife than in the case of father and child, or master and servant. The case was well illustrated by an incident in a tale of a great novelist. When Oliver Twist fell into the hands of burglars who forced him to go through a small aperture into the house they were going to rob, that was a case of coercion—he did not act of his own free will, and by the law of all civilized nations he was not guilty. Instead, therefore, of establishing an arbitrary presumption in one particular case, the better plan would probably be to put to the jury in all cases the question, was the prisoner a free agent or entirely overpowered by the will of another? Upon the answer to this question depended the guilt or innocence of the accused, according to the general maxim of the English law—actus non facit reum, nisi mens sit rea. So in the cases where husband and wife were concerned, the jury should say whether the wife was a free agent, and no presumption of law should arise. He could not appreciate the reasons given for holding a wife not responsible in great cases, but responsible in small ones. Such exceptions of themselves made the law untenable. Why was a wife not answerable in cases of felony and yet answerable in cases of treason? Why was she excused upon a charge of misdemeanour but not upon one of a more serious nature? These were his views on the question, which should have his serious consideration. With this assurance he hoped his hon. and learned Friend (Mr. Osborne Morgan) would be satisfied. He did not speak on behalf of the Government; but, on the whole, it appeared to him that his hon. and learned Friend had established the unreasonableness of the existing presumption in our law.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.