HL Deb 05 March 1866 vol 181 cc1483-93

(The Lord Chancellor.)

Order of the Day for the Second Reading read.


, in moving the second reading of the Law of Evidence Amendment Bill, and the Divorce and Matrimonial Causes Bill, said: My Lords, these Bills I introduce in order to amend some defects which have been pointed out to me as existing in the procedure of the Divorce Court; and your Lordships will see that, in order to effect the desired object, it was necessary to frame two Bills instead of one. Those of your Lordships who have taken an interest in the subject are aware that up to a comparatively recent date there were many rules connected with the giving of evidence which have been much modified and changed in recent times. I am not one to feel pleasure in censuring or sneering at those who in former times laid down rules for the administration of justice—they may have been well adapted to the state of society at the time they were introduced; but the increase in our numbers, wealth, and intelligence, and the alterations in our habits, have rendered some of them inapplicable to the existing state of things. Up to the year 1843 it was the rule that no witness could be examined who had any interest whatever in the subject-matter of the suit. That led to very great difficulty, insomuch that it was often necessary to institute an inquiry as to whether a person had or had not that which the law considered to be an interest in the subject-matter of a cause. That state of the law was altered by an Act introduced into your Lordships' House in 1843 by the late Lord Denman, according to which it was no longer competent to any one to object to a witness on the ground of his being interested in the action or suit. There was, however, in that Act a special enactment that its provisions should not authorize any parties to an action or suit to give evidence. So the law continued until 1851; when Lord Brougham introduced a Bill for the further amendment of the Law of Evidence, whereby that portion of the former Act which excluded parties to the suit from the witness-box was repealed, and it was enacted that— The persons on whose behalf any such suit, action, or other proceeding may be brought or defended shall, except as hereinafter excepted, be competent and compellable to give evidence on behalf of either or any of the parties to the said suit, action, or other proceeding. Lord Brougham's Bill became law, and has continued in force up to the present time, and the parties to suits are now competent witnesses in Courts of Law. I think I pronounce the opinion entertained by all those who are engaged in the practice or administration of the law when I say that that alteration, by which parties were made competent witnesses, has worked eminently well, and been productive of considerable advantage; for, after all, the taking of evidence is only for the purpose of enabling the court to arrive at the truth, and it is often satisfactory to examine the parties to a suit. The enactment, however, contained the words, "ex- cept as hereinafter excepted;" and the fourth section contained the proviso— Nothing in the said Act contained shall apply to any action, suit, proceeding, or bill, pending in any Court of Common Law, or in any Ecclesiastical Court, or in the House of Parliament, instituted in consequence of adultery, nor to any action for breach of promise of marriage. Now, it is obvious what was the motive and object of that exception. It was thought that it would be carrying to an inconvenient extent the theory of examining parties, if the parties were put into the witness-box and rendered liable to be asked the question, "Did you or did you not commit adultery?" Since the Bill now before your Lordships was printed my noble and learned Friend Lord Brougham, who takes great interest in this subject, though the state of his health prevents his attendance in your Lordships' House, has sent me a letter, in which he says that the exception had been introduced into his Bill in spite of him. I think, however, that the exception is a fair one. The object of all examination of witnesses is the attainment of truth; and I can conceive that a man placed in the position of having to answer a question as to whether he had or had not committed adultery, might, without much casuistry, doubt in his own mind whether it would not be a more dishonourable thing to answer the question truly than to answer it falsely. But the truth is that this proviso either does too much or too little. Observe how it operates in proceedings in the Divorce Court. I will take as an instance the case of a husband suing for a divorce in the Divorce Court in the ordinary way. It is very fit that he should not be able to call his wife as a witness, and question her as to whether she had committed adultery. But suppose she is conscious of her innocence, and declares her willingness to be examined on that or any other point—suppose she says, "If you examine me I will explain all the little incidents from which you wish to prove adultery, and I am the only person who can explain them,"—surely it is extremely hard to shut her out from giving evidence. But supposing she is not an innocent person, and cannot avoid answering such a question in the affirmative, she still has the power of defending herself at law by showing that her husband has been guilty of cruelty and desertion; but nevertheless, the suit, as it was instituted in consequence of adultery, comes within the proviso. Now, is it not a monstrous thing that because the husband cannot examine his wife as to the alleged adultery, the wife should be precluded from proving a countercharge of cruelty and desertion?—for practically, such a charge in nine cases out of ten can only be proved by the wife herself. Further, under the Divorce Act a wife may obtain a divorce a vinculo matrimonii if she can establish against her husband not only adultery, but that he has been guilty of cruelty or desertion. If she institutes such a suit which is held to be a suit instituted on account of adultery, she is precluded from giving her own evidence, or examining her husband, as to her husband's cruelty and desertion. The late Sir Cress-well Cresswell forcibly brought this anomaly under the notice of Lord Campbell while he held the Great Seal, and within a year and a half after the passing of the Divorce Act his Lordship introduced a Bill to modify the provision to this extent—that in any suit instituted by a wife against her husband by reason of adultery and cruelty or desertion, both parties should be competent witnesses to the extent only of proving the desertion or cruelty. That alteration of the law has been found to work most unsatisfactorily. No one knows better than my noble and learned Friend (Lord Chelmsford) how impossible it is when you have got a witness in the box to stop short and say to him or her, "You may be examined only on this matter and that matter," for the examination would often branch out into other subjects. And here, again, this Act of Parliament does not attain its own object, for it only applies to suits instituted by the wife; and, therefore, although a wife may set up the cruelty and adultery of her husband in bar of any suit instituted by him for a judicial separation or divorce, this Act does not help her at all. Then there is another most anomalous consequence of this state of the law, and I am informed by my learned and excellent friend the Judge of the Divorce Court that the inconvenience has been felt in more than one instance. There may be a suit and a cross suit on exactly the same facts, and yet the evidence receivable would be different in each suit, according to the person by whom it was instituted. It appears to me, therefore, that whatever may be the right remedy, some remedy at all events is necessary. That, I think, will be sufficiently apparent from the short statement which I have made to your Lordships. I believe that the only true remedy is that which I propose in this Bill. The Bill, therefore, consists of a single clause repealing the fourth section of the Act of 1851, and I had thought that the difficulty of the cases I have referred to would be met by a proviso that no person shall in any action or other proceeding be compelled to answer a question as to adultery; but, as I find this will not meet the case, and if your Lordships permit the second reading of the Bill, I will, before it goes into Committee, print an Amendment to that proviso, to the effect that every person in such a suit shall be capable, but not compellable, to give evidence. I may mention that the learned Judge of the Divorce Court is most anxious to see this remedy introduced. It may, however, be objected that if you make a person competent to be a witness, but not compellable, and a party does not tender himself or herself as a witness, the inference is irresistible. But is that really an objection? The object of all evidence is the attainment of truth, and if the circumstances are such that one cannot help inferring guilt on his or her part, you attain the object for which you are seeking. After these few observations, your Lordships will see that I am obliged to separate this Bill from the other which stands in my name, because the provisions of this measure have reference not only to the Divorce Court, but also to cases brought before your Lordships; and there may also be cases in other courts where adultery may be put forward—so that the general law on the subject ought not to be confined to the Divorce Court. With these remarks, I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)


said, that notwithstanding his respect for the opinion of his noble and learned Friend, he could not bring himself to think that it was at all desirable that the law of evidence should be altered in the manner which he proposed. This was in form an unpretending Bill of only one clause; but whilst apparently a Bill of a purely legal character, it wag one which involved questions of moral and social importance deserving the careful consideration of the House, and which their Lordships were as competent to decide as were those who were generally designated the Law Lords. Previous to 1843 no person could be examined as a witness who had any interest in the matter in litigation; but Lord Den- man's Bill in that year removed some part of this disqualification; and in 1851 the Legislature took the further step of allowing the parties to the suit to be examined as witnesses, with the exceptions of parties proceeding for adultery, and the parties to an action for breach of promise of marriage. These exceptions were now pronounced to be anomalous, and it was sought to get rid of them by this Bill. He knew that persons of great learning entertained considerable doubt as to the propriety of these exceptions; but the judgment of the House of Commons had been pronounced upon the matter, for in the course of last Session his learned Friend Sir FitzRoy Kelly introduced a Bill into that House in which there were two clauses, by the first of which parties to any action for breach of promise of marriage were rendered competent to give evidence on behalf of either party; and by the second, in any suit or proceeding instituted in consequence of adultery any party was allowed, if he should think fit, to offer himself or herself as a witness on his or her own behalf; but in Committee on the Bill these clauses were after amendment negatived, and the Bill was withdrawn. Having carefully considered the subject he (Lord Chelmsford) was of opinion that it would be extremely dangerous to admit of any relaxation in the law in the direction proposed. It appeared from the statement of his noble and learned Friend (the Lord Chancellor) that amongst the benefits they derived from the Divorce Court they owed to it the introduction of an anomaly in the law of evidence—namely, that in a suit in that court for adultery the parties were precluded from giving evidence; but if the wife proceeded for a judicial separation upon the ground of cruelty and desertion, and the husband recriminated with a charge of adultery against her, all the parties might be I witnesses. The present Bill proposed to get rid of this anomaly by saying that whether adultery were the immediate subject of the suit or arose incidentally the parties might be examined. His noble and learned Friend proposed that this power of giving evidence should be optional—that the parties, though competent, should not be compellable to give evidence. But he (Lord Chelmsford) thought that upon consideration his noble and learned Friend would be of opinion that practically there would be no difference between its being compulsory or optional, and that in every case it would be found that the "may" would in fact be the "must." The evidence in such cases was generally circumstantial, and in some cases it was of a very slight description. In one well known case it was so slight that the jury found for the defendant; but suppose the noble defendant in that case had been allowed to give evidence? If he had not appeared what would the jury have concluded? They would have said, "Although the evidence is slight, yet there are two witnesses who could tell us whether the facts charged are true or not. If they refuse to appear and give us the information that they alone can give we must deal with the case upon the presumption that if they did appear the facts would be established against them." His noble and learned Friend asked where was the evil in such a case?—for that if the parties were innocent they would appear and prove their innocence, and that if guilty they would shrink from appearing before the jury, and the jury would then arrive at a just and right conclusion in their absence. But in such a case, had my noble and learned Friend considered the temptation to perjury that would follow the removal of the existing exception? They must remember that the character, position, and social existence of the wife depended on the issue of the cause; and that having broken one Commandment, she would scarcely hesitate to break another where so much was at stake by bearing false witness? And would not the man consider it a point of honour to save the wife from the shame and misery to which he had brought her, by adding to his sin the crime of perjury? Very shortly before he retired from the bar a case occurred within his own professional experience which illustrated this danger. An action for criminal conversation was brought against a magistrate in the country. A verdict for damages was given, and on that the husband proceeded to the Ecclesiastical Court and instituted proceedings for a divorce á mensâ et thoro. The adulterer, or alleged adulterer, appeared and made an affidavit that no adultery had taken place. An indictment for perjury followed, and he had the misfortune to defend the prisoner. How the defence was to be conducted became an important consideration, and it was clear to him, as the prisoner's counsel, that there was no chance of an acquittal unless the prisoner could produce the wife herself to corroborate him on oath that no adultery had taken place. He felt it his duty to point out the consequences that must ensue if such evi- dence was not given. However, the wife did appear, and swore that no adultery had taken place. He certainly had great misgivings in the case, and was very reluctant to advise any course; but it was his duty to point out the consequence of such evidence not being given; and the result was that the wife came and swore as the defendant had sworn, and an acquittal took place. The Divorce Court was established shortly afterwards, and the husband sued for a divorce in that Court; the adultery was clearly proved, a decree for a divorce was pronounced, and almost the first act of his (Lord Chelmsford's) official life was to remove from the commission of the peace the name of the co-respondent in those proceedings. If they passed this Bill and took away the exception, they would hold out to a guilty person the greatest possible temptation to commit perjury. At present the scandal attending the proceedings of the Divorce Court was very great; but if the husband and wife and a co-respondent were called and allowed to give evidence in suits of this description that scandal would most tin-questionably be aggravated beyond all imagination. The history of the lives of these persons, one and all, would be exposed to the torture of cross-examination and, in the end, their Lordships would have deeply to regret that any relaxation in the law of evidence had been allowed to take place. As to the other question, in respect to actions for breach of promise, a mere verbal promise was sufficient to establish a case, although the evidence generally given consisted of written correspondence and the testimony of friends; but if the plaintiff herself were allowed to give evidence, it was evident that mere expressions of tenderness would frequently be misinterpreted, and that a verbal promise would be easily proved. It might be said that both the plaintiff and the defendant would be admitted as witnesses; but the sympathy would be entirely with the woman, and in ninety-nine cases out of a hundred she would gain the verdict. A remarkable case occurred some years ago in which the defendant was a Member of their Lordships' House. An action for breach of promise of marriage was brought, and for the purpose of establishing her case, the lady, who was very clever, fabricated letters from the defendant to herself, and also wrote a great number of anonymous letters to the defendant, which she very ingeniously contrived to have put into the post by various friends who were called as witnesses to establish that there had been a correspondence between the parties. As it appeared before the jury that she had written letters to him, and as there was evidence that the letters supposed to have been written by him were in his handwriting, it would have been difficult to persuade the jury that there had been no correspondence between them. However four of her anonymous letters had fortunately been preserved, and when they were put in evidence the case was disposed of in an instant. Now, if this designing woman had been allowed to give evidence of the promise she would nut have hesitated to swear that it had been made, and the noble defendant would probably have had to pay heavy damages. In actions of seduction the action was brought by the father or mother, or some relation of the girl, upon the fanciful ground that the girl was a servant, and that her services had been lost. Should this Bill pass, these would most of them be turned into actions for breach of promise of marriage; because when taxed with her frailty the girl would say that she had yielded only upon a promise of marriage, and her friends would then force her to bring an action to vindicate her character. Juries, who were always disposed in such actions to sympathize with the plaintiff, and to look with severity on the conduct of the man, would be easily disposed to find against him. He had already told their Lordships that a verbal promise was sufficient to support an action for breach of promise of marriage. In a Bill introduced in the House of Commons last year it was proposed that no such promise should be enforced unless it were in writing; but the Bill did not pass into law. It was singular that the Statute of Frauds enacted that any promise made in consideration of marriage should not be binding unless it were in writing; and yet it had been held that mutual promises to marry were not within the statute. If the proposed relaxation took place, he thought that they should at all events require that in all such cases the promise should be in writing, and that no verdict should be given upon the unsupported evidence of the woman bringing the action. But no alteration in the law as it now stood was in his opinion necessary; and, entertaining a strong feeling against the present Bill, if with no other effect than placing his opinions upon record, he felt himself compelled to move, as an Amendment, that the Bill be read a second time that day six months.

Amendment moved to leave out ("now,") and insert ("this Day Six Months.")—(Lord Chelmsford.)


said, the subject was one which did not affect lawyers only, but involved questions of public morals and public policy, and must not therefore be viewed as of a purely legal character. It was not a new subject, but it was one that had been frequently discussed in Parliament. In a case where a question arose whether a man should be asked in a court of justice if he had committed adultery, Lord Denman declared that he never would consent to place a man in a position in which he must either commit perjury or betray the partner of his guilt. He thought it would be more for the interests of justice and right that such a species of moral torture should not be permitted, and should regret if any such alteration in the law of evidence were made now upon questions of this kind. The Bill, however, did not entirely go that length, but it rendered the husband or wife capable of giving evidence if they desired. He expressed his determination to vote against the Bill if it were pressed to a division, because it involved a most important and objectionable principle.

On Question, That ("now") stand Part of the Motion? their Lordships divided:—Contents 29; Not-Contents 29.

The Numbers being equal, it was (according to ancient rule) Resolved in the Negative: and Bill to be read 2a on this Day Six Months.

Cranworth, L. (L. Chancellor.) Peterborough, Bp.
Boyle, L. (E. Cork and Orrery.)
York, Archp.
Clandeboye, L. (L. Dufferin and Claneboye.)
Cleveland, D,
Saint Albans, D. Foley, L. [Teller.]
Somerset, D. Llanover, L.
Monson, L.
Camden, M. Mont Eagle, L. (M. Sligo.)
Airlie, E. Mostyn, L.
Albemarle, E. Northbrook, L.
Caithness, E, Overstone, L.
Clarendon, E. Ponsonby, L. (E. Bessborough.) [Teller.]
De Grey, E.
Ducie, E. Romilly, L.
Minto, E. Stanley of Alderley, L.
Stratheden, L.
Sundridge, L. (D. Argyll.)
Sidney, V.
Buckingham and Chandos, D. Abinger, L.
Chaworth, L. (E. Meath.)
Marlborough, D. Chelmsford, L. [Teller.]
Colchester, L.
Bath, M. Colville of Culross, L.
Lansdowne, M. Houghton, L.
Hunsdon, L. (V. Falkland.)
Belmore, E. Kilmaine, L.
Cadogan, E. Lyveden, L.
Hardwicke, E. Redesdale, L.
Harrowby, E. Silchester, L. (E. Longford.)
Lucan, E.
Portarlington, E. Skelmersdale, L.
Shrewsbury, E. [Teller.] Taunton, L.
Strange, E. (D. Athol.) Vivian, L.
Walsingham, L.
Lifford, V. Wharncliffe, L.