§ LORD LYNDHURST
My Lords, before we proceed in Committee with the 780 Bill of my noble and learned Friend on the woolsack, I wish to make a few observations upon a point which was but little discussed upon the occasion of the second reading; I refer to the action for criminal conversation. It is right that your Lordships should understand the position in which the question stands just now. When this Bill came before your Lordships a year ago a Motion was made to refer it to a Select Committee; that Motion was agreed to and a Committee was appointed which did me the honour to choose me for their Chairman. I proposed several Resolutions for the consideration of the Committee, and, among others, one which recommended the abolition of actions for criminal conversation. In consequence of that Resolution my noble and learned Friend near me (Lord St. Leonards) made a distinct Motion in this House upon the subject. That was followed by other Motions from other Members of the Committee. The subject was carefully and ably discussed, and I think I may state that the general opinion of the Committee was that the action for criminal conversation should be, if possible, entirely abolished. There was, however, some difficulty in deciding what should be substituted in lieu. Different Members took different views and were not able to arrive at the same conclusion; and in consequence the Committee did not report to the House any recommendation of the abolition of actions for criminal conversation. This is a subject of very great importance, and I thought my noble and learned Friend on the woolsack intended to introduce a clause to abolish that class of actions; but I find that the Bill before us, as it now stands, so far from abolishing those actions, will continue them under a shape and form still more objectionable than at present. I think I have collected from your Lordships that there is a strong feeling in this House for the abolition of this form of action. I am sure there is a strong feeling out of doors in favour of it. Whenever a case of that kind is introduced into a court of justice we generally find that not only the learned Judge, but also the advocates in the case themselves, reprobate the action in which they are engaged, and no one has expressed himself more strongly than my noble and learned Friend who sits at the table (Lord Campbell). He has more than once stigmatized this form of action as a scandal to our law, and has said, and said truly, that in no country 781 upon the continent of Europe is such a proceeding tolerated, and that it has been mentioned as a matter of reproach by legal men from across the water with whom he had conversed, that such an action should be maintained. I believe I can corroborate that statement of my noble and learned Friend. I have conversed with able and learned foreigners and never found any different opinion. In a work recently published I find these words, in reference to the action of criminal conversation—The husband pockets the money without shame. The publicity which such prosecutions necessarily occasion, and all the proofs and details of the intrigue, are highly indelicate and scandalous. The testimony, for instance, of servants—of young chambermaids who are brought into open court to tell, in the face of the public, all they have heard, seen, or guessed at, is another sort of prostitution more indecent than the first.Such is the opinion entertained generally on the continent of Europe with respect to these actions. I may say, in reference to that passage, that it is no exaggeration, but, on the contrary, falls short of the reality. I can only describe the reality by referring your Lordships to a case which was heard in this House last year—the Talbot case, which lasted three days, in the course of which most indecent details were given, to the great disgust of your Lordships, which were subsequently printed and circulated throughput this country, and indeed throughout Europe. That, indeed, was not an action for criminal conversation, but the evidence given was of the same character as that usually given in actions of that kind in courts of justice. No sober, no sensible man can hesitate as to the propriety of terminating such proceedings. I will just remind your Lordships of the ground on which these actions are defended. By an order made in the time of Lord Loughborough, and at his instance, it was decided that no suit for a divorce should be instituted in this House, unless the party had in the first instance obtained a verdict and damages in an action of criminal conversation against the adulterer. The object was to prevent collusion if possible; but every person who is practically acquainted with courts of justice knows full well that it is altogether idle to suppose that a proceeding of this kind will prevent collusion. I will not ask your Lordships to rely upon my own judgment alone upon this point, but I will refer you to a passage in the Report of the Commissioners on the Law of Divorce, 782 which I think is absolutely conclusive on this point. Those able and learned persons say, "The verdict at law is practically valueless," and in a note they further add:—In the majority of actions which are brought against adulterers judgment is allowed to go by default. This admits the defendant's guilt; and it only remains for the plaintiff shortly to prove the facts before the sheriff and a common jury, when damages are assessed as of course. In these cases it usually happens that no counsel appears far the defendant. The facts therefore sworn to are admitted without inquiry; the witnesses are subject to no cross-examination; the cause is heard ex parte. What security against fraud is afforded by such a proceeding? If the parties are anxious to collude, what is to prevent the plaintiff from receiving the damages with his right hand, and then, as soon as the Bill of Divorce has passed, returning them with his left? It is obvious that an action so conducted, and a verdict so obtained, are utterly undeserving of reliance or attention in considering the merits of a Divorce Bill.Thus, my Lords, you perceive the object for which this action has hitherto been maintained—namely, that it prevents collusion—has not been gained. My noble and learned Friend on the woolsack has said that in his opinion the Bill he proposes will, if passed into law, operate to the extinguishment of actions for criminal conversation through the transfer of divorce suits from this House to the tribunal proposed to be created. I do not at all agree with him; but even if such would be the consequence, I say that, considering the scandalous nature of these actions, it would be more becoming to the dignity of this House if they were abolished by Parliament instead of merely allowing them to be extinguished merely by a transfer of jurisdiction. I have never been able to understand the principle on which these actions are founded. The principle upon which it is said they are founded is fallacious. An action for criminal conversation is not intended as a punishment of the guilty party, but as a compensation for the injury sustained. Now, I ask your Lordships and every rational man what common measure is there between the wounded feelings, the affliction, the domestic misery occasioned by a violation of the sanctity of marriage, and the pounds, shillings, and pence of a tradesman's ledger? The injury is of such a nature that it is impossible it should be compensated by money. Many years ago I remember the manner in which Lord Erskine, who was fully conversant with actions of this kind, expressed himself when a Bill was before the other House of 783 Parliament relating to this subject. That eminent and learned man, who was engaged in almost every action of the kind which occurred in his time, said:—He had often felt himself at a loss how to deal with the subject when he recollected what he was asking from a jury for the sufferer, since the man who could consider any sum as a satisfaction for such an injury deserved no damages at all. By giving damages when none could be received as a satisfaction, and allowing no criminal prosecution, the law seemed to be most curiously contrived to disappoint both the sufferer and the public.But, my Lords, this is only part of the evil which arises from this species of action. I beg your Lordships to consider the state of the woman. To her the result is far more important than to any of the other parties concerned; yet she is not allowed to appear, she is not allowed to examine a witness, she is not allowed to employ counsel— the whole proceedings take place behind her back. The woman has everything at stake—her character, her fair fame, her home, the society of her children, her position in the world, all her future prospects of happiness; and yet, as I have stated, though she has such a stake in the result, she is not allowed to take any part whatever in the action. Can anything be more scandalous or more inconsistent with the principles of justice? My noble and learned Friend on the woolsack has said that the woman in these cases is generally guilty. My answer is, that I have known many instances during my professional career where a verdict of acquittal has been pronounced, and where I presume, therefore, that the woman was innocent. I have known cases of another description, where a verdict of guilty has been returned, but where I think that verdict was not supported by the evidence. I remember that a noble and learned Friend, who is now absent enjoying the charms of a southern climate (Lord Brougham), stated a case within his own knowledge of a very singular character. An action was brought for adultery and a verdict obtained against the adulterer. The character of the woman was sacrificed and lost. She had, from an accidental circumstance, which is of very rare occurrence, an opportunity of investigating the case, and it was proved to demonstration, not only that she was not guilty of adultery, but that she never had any intercourse even with her husband. I therefore ask you, my Lords, as far as the woman is concerned, is it proper that this species of action should continue? The 784 noble and learned Lord on the woolsack, in the observations to which I have alluded, said that the woman was rarely innocent in such cases. Be it so. Are we entitled on that account to treat her with injustice? A man, however suspected, however strong the evidence against him, is never condemned without being heard. He has a right to defend his character, to offer anything in mitigation or palliation of the charge against him, anything to soften the opinion of guilt which may be entertained to his prejudice. Well, my Lords, I pass from this to another consideration. As the Commissioners have stated, there may be cases in which an action may be instituted, and the woman know nothing of it before judgment is obtained. A man brings an action against a person whom he alleges to be an adulterer. Judgment is given in default. No evidence is required, and it is not till after judgment is pronounced that the woman knows anything of the proceeding. I trust, my Lords, I have stated sufficient to satisfy you of the propriety of putting an end to this kind of action. Many years ago a Bill was introduced into this House by the late Lord Auckland for the purpose of doing away with the action for criminal conversation. It was supported by Lord Eldon, and by many Members of the right rev. Bench, and passed this House by a great majority. It went down to the other House of Parliament, it was there discussed, and was supported by the Master of the Rolls, Lord Stowell, Mr. Erskine, Mr. Wilberforce, and a large number of other distinguished characters. I allude to this as a strong sanction in favour of the observations which I am addressing to your Lordships. My noble and learned Friend on the woolsack has introduced into his Bill a clause altering and modifying the law upon this subject; but, as I have before stated, I think he makes the law even worse than it is at present. It is not my intention, at this stage, to discuss the merits of that clause; we shall have an opportunity of doing so when the Bill comes to be considered in Committee: but what I wish to impress upon the minds of your Lordships now is, that you ought to concur in the propriety of putting an end altogether to the action for criminal conversation. A noble and learned Friend (Lord St. Leonards) has given notice of some important Amendments. He proposes that it shall not be competent for any person to bring an action for damages for criminal conversation. 785 What shall be the substitute for it will be for your Lordships to consider when the details of that part of the Bill come under your consideration; but I hope my noble and learned Friend will be able to provide a sufficient substitute for this disgraceful proceeding, and enable your Lordships to send down the Bill in such a shape as will give it a fair chance of meeting the approbation of the other House.