HL Deb 26 July 1869 vol 198 cc670-8

Order of the Day for the Second Reading, read.

LORD PENZANCE, in moving that the Bill be now read a second time, said, that he must, in the first place, recall to their Lordships' recollection the great change which was made in the law some years ago, by the 14 & 15 Vict., c. 99, which for the first time allowed parties to certain suits to give their own accounts of the transactions out of which the litigation arose. The change was of a most marked and serious character, and no one who had practised in the courts of law since that change was made doubted its expediency, or hesitated to pronounce it a most successful measure. But suits on account of breach of promise of marriage and adultery were excepted by this enactment, and it was with these exceptions the present Bill proposed to deal. As regards suits for breach of promise, it was proposed simply to do away with the exception. He would only say, as to this part of the matter, that it was the opinion of most lawyers that the Bill in this respect would be an unquestionable improvement. The exception in cases of adultery had wrought much evil, altogether independent of the object aimed at by the framers of the law. It was thought by many, himself included, that it was undesirable anyone should be put into a witness-box, and be asked whether he or she had been guilty of adultery; and the sympathy for a person placed in that position—especially a man whose admission involved the public dishonour of a woman—dictated the exception on this head. But the form of the exception was this—instead of providing simply that the question as to whether he or she had committed adultery should not be put, it was provided that parties to suits instituted on account of adultery should not be examined as witnesses. It happened that in the Court over which he presided many suits were instituted on account of adultery which involved other questions, and the exception had had the effect of shutting the mouths of the parties to the suit as regards questions—say, of desertion and cruelty— when, in many cases, they alone could speak directly to the facts; and the result had been to cause very great expense in bringing witnesses from all parts of the country to prove facts within the knowledge of the parties to the suit. As the Act was passed before the Divorce Court was established, the result was plainly fortuitous; and there seemed to be no reason on earth why a man or woman should not be asked any questions touching the adultery of either husband or wife, and yet a suit being instituted on account of adultery made it impracticable. There was another evil which followed from the exception. Whatever might be said as to the propriety of asking a witness whether he or she had committed adultery, there seemed no such objection in a suit between husband and wife to asking one party as to the adultery of the other. It was even possible, under the present law, for a man to go into a room and find his wife in the act of adultery, and yet be incompetent to state the fact in evidence. Had it not been that some amendment had been made in the original law, the business of the Divorce Court could not have been carried on at all; and, as it was, the Act making that amendment, the 22 & 23 Vict, c. 61, led to fresh inequalities, by limiting the repeal of the exception to only two cases, in order to allow a woman to prove cruelty and desertion by her husband. The amendment permitted the husband and wife to give evidence in cases where the suit was instituted by the wife on the ground of cruelty and desertion. But this only met the case where the wife was the petitioner; for, unfortunately, if the husband brought a charge of adultery and the wife answered it by a charge of cruelty and adultery, she could not be a witness upon the subject of cruelty, because the suit was instituted on the ground of adultery. Then, other evils arose connected with costs. The husband brought a charge of adultery against his wife, who, knowing she could not be a witness in that case, brought a cross-suit on the ground of cruelty, in order that she might speak. Thus the husband had to pay the costs of two suits, when one would serve the purpose. Thus the law, as it now stood, ' was full of anomalies. It excluded evidence not intended to be excluded, and it admitted that intended to be shut out; it did not exclude evidence where adultery came up by way of recrimination, but it did exclude it where adultery was charged in the petition. Again, the law did not cover the case of an action brought by a third person—say by a tradesman against a husband for necessaries supplied to the wife; in that case, if adultery were alleged, there was nothing to prevent the parties getting into the witness-box. He would add a word, on the question whether there was any objection to the parties being examined on the direct charge of adultery. Was there really any reason why a petitioner or a respondent should not be allowed to get into the witness-box, and by his or her explanation get rid of the suspicion which circumstances had raised against them? For want of this power great injustice was often done. Appearances were very often strong against a man and woman; admissions made, or said to have been made, were given in evidence against them, yet they were not permitted to get into the witness-box and give their own account; and, in many cases, this was a great hardship. The Bill as it stood said not only that he parties to any action for breach of promise should be "competent," but should be" compellable"—and, as regards suits instituted in consequence of adultery, it also provided that they should be "compellable." But such a provision respecting the parties to the suit must be a dead letter, for the plaintiff would not call the defendant, nor the defendant the plaintiff; and the Bill would be just as valuable if the word were struck out, and if it simply said that the parties should be competent to give evidence. For ten years the Court of Divorce had been harassed and hampered by the action upon each other of two Acts of Parliament without any common design between them; and he therefore rejoiced that this Bill had been passed by the Commons to correct a gross anomaly which could not be well defended. The House of Commons had added a provision to protect witnesses against being compelled to criminate themselves, and he was satisfied that it would be sufficient for the purpose.

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


said, he had the greatest possible confidence in the judgment of the noble and learned Lord who had charge of the Bill, and whose experience in the court over which he presided rendered his opinion of so much value, and it was, therefore, with hesitation and doubt that he ventured to make some remarks against it. He could not however help entertaining very serious apprehensions as to the danger that would be incurred from the admission of the evidence of parties in such cases as those to which this Bill referred. This was not only a legal question'—it was also a moral and a social one, upon which every one of their Lordships was as competent to form an opinion as any of the legal Peers. When the first Bill on the subject was brought forward by Lord Brougham he said that the exceptions in reference to proceedings in adultery and actions for breach of promise were forced upon him against his will; but it was quite clear that the opinion of the majority of persons then was that the exceptions should be introduced. In 1865 the present Lord Chief Baron, then Sir Fitzroy Kelly, introduced into the House of Commons a Bill in which there were two clauses for admitting the evidence of parties in these two cases. The Bill was read a second time, but in Committee the two clauses were struck out, and the Bill was therefore dropped. In 1866, the then Lord Chancellor (Lord Cranworth) introduced a Bill containing similar clauses, which enacted that the parties should be competent, but not compellable to give evidence. Personally, he (Lord Chelmsford) thought there was no serious practical distinction between the two forms of expression, for it was clear that if persons were competent to give evidence, even though they were not compellable, if they failed to present themselves to rebut the charges made against them they would subject themselves to unfavourable observations, and their silence would probably be fatal to their case. On that occasion the only speakers were the Lord Chancellor, himself, and the late Lord Taunton, who also took the view he did as to the danger of admitting evidence of this kind. On a division the House was equally divided, and the Bill, therefore, fell to the ground. These facts indicated great difference of opinion upon the propriety of admitting evidence of this kind; and, as he said at that time, he certainly felt that the proposed change would open the floodgates of perjury. Take the case of proceedings by a husband against a wife for adultery. It was quite clear that her character and position in life — everything she could hold dear — being involved, the temptation to commit perjury was so strong as in many cases to be utterly irresistible. A woman who had already broken one commandment would not scruple to break another in order to protect herself. Again, a co-respondent might feel it a point of honour to protect the woman with whom he had committed adultery, though at the expense of perjury. Shortly before he left the Bar there occurred an action of what was then termed crim. con. in which the verdict went against the defendant. The husband applied to the Ecclesiastical Court for a divorce a mensâ et thoro; but the defendant in the action appeared and swore positively no adultery had been committed. The husband then indicted him for perjury. It was at this point that he (Lord Chelmsford) first heard of the case, being retained for the defendant. He felt that the result must be against his client unless the wife was called to deny the adultery. And, in consultation, he stated this inevitable consequence; though, of course, without any advice as to her being called or not. At the trial she appeared as a witness, and swore that no adultery was committed, and the defendant was, after some hesitation of the jury, acquitted. In the meantime Parliament had established the Divorce Court, and the husband proceeded in that court for a divorce, and the adultery being clearly proved he obtained it; and one of the first acts of his official life as Lord Chancellor was, on the application of the Lord Lieutenant, to strike the name of the defendant out of the Commission of the Peace. This case showed how difficult it was for persons to resist the temptation—a woman to defend herself from the consequences of adultery being established against her, and a man, from a feeling of honour—if it must be so called—to protect the woman with whom he had committed adultery. It was that feeling that induced him to apprehend considerable danger from the admission of evidence of this kind. He admitted, with his noble and learned Friend, that the state of the law with regard to evidence in cases of this description was in an anomalous position, and he should be glad if his noble and learned Friend would introduce an Act to remove those anomalies, without going the length of admitting the evidence of parties charged with adultery. He would now turn to the question of the evidence proposed to be admitted in actions for breach of promise of marriage. At present cases of this kind are proved by letters, or promises made in the presence of witnesses, the evidence of the plaintiff being expressly excluded. His noble and learned Friend behind him (Lord Cairns) had informed him that in Ireland they had a curious way of getting over the difficulty which at present existed in the way of procuring the admission of the plaintiffs evidence. In the charge against the defendant a count for assault and battery is inserted, and upon this the lady herself is called, and proves, with the assistance of friends, the promise made to her. He had known cases of this kind where letters in support of the promise were forged; and where, of course, if the party had been a witness, she would not have scrupled to support her forgery by perjury. If the plaintiff's evidence—generally a woman—is admitted, and it establishes a promise, the denial of the defendant will stand little chance of a favourable reception, when all the sympathies of a jury will be sure to be with the weaker sex. Every case of seduction will be turned into an action for breach of promise of marriage, and a jury will easily be persuaded that the woman's virtue only yielded to such a promise. He could not think it safe to admit such evidence unless some precaution is introduced against the probability of its abuse. In cases of affiliation, the evidence of the mother is not received without some corroboration. So if that extension of the law of evidence is to be made, it ought not to be without acquiring some additional proof. By an Act of Charles II. no action can be brought upon a promise in consideration of marriage unless the promise is in writing; but this does not apply to mutual promises to marry. He thought that the plaintiff's evidence ought to be supported by some writing, or, at all events, by some corroborative proof from other witnesses. He did not intend to oppose the Second Beading of the Bill, but he trusted that the points to which he had referred would receive attention.


was understood to oppose the "questionable shape" in which the Bill was presented for a second reading.


said, that this Bill dealt with several questions which stood upon a different footing, and it was only to one of them that his noble and learned Friend (Lord Penzance) had directed their attention. He had called attention to the anomalous state of the law of evidence in the court over which he so ably presided; and had his noble and learned Friend confined his enactment to that question he would have bowed to his opinion. But there were two other portions of the Bill which stood upon a different footing. One of them was the question relating to breach of promise of marriage, which frequently entered into allegations supported by mere passing words. If power were given to examine the parties it would be found that men and women would be swearing as to the use of words which, after a lapse of time, might be made to wear a very different colour from that which they wore when originally spoken; and seeing that the sympathies of juries were with the woman and against the man, it would be a great anomaly, he thought, to allow a proceeding such as that to which he was referring to be supported by merely verbal testimony which could not be met by verbal testimony on the other side. The third part of the Bill seemed to him, he might add, to be of great importance, inasmuch as it proposed to abolish, for the first time, oaths altogether in civil proceedings, not out of regard to any religious scruple, or for any of those other reasons which had hitherto prevailed, but simply on the ground of sic volo. That was a proposal which in his opinion, was open to very great objection. In other respects the Bill was a very valuable one; but he hoped that the two points he had maintained would be carefully considered by their Lordships when it was in Committee.


said, he saw no reason why the exceptions aimed at in this Bill should be allowed to continue. When the alteration was first made in the law of evidence by which the parties to a suit were allowed to be witnesses in their own case, leaving it to the jury to estimate the value of their testimony, he was entirely in favour of the change. He had, however, felt a strong objection at the time, which was not now, perhaps, entirely removed, as to the extension of that particular benefit to the suits of husbands and wives inter se. He thought it might lead to a disturbance of the peace of families. But as it had pleased the Legislature to take a different view, he did not, he must confess, see why the exceptions with which the Bill proposed to deal should remain, especially as the peace and harmony of families would in those particular cases have already been destroyed. With reference to the third part of the Bill, which permitted persons to give evidence without being sworn, he must say that he heartily concurred in that object, because he had long been of opinion that it was undesirable to draw a distinction between the duty of telling the truth at all times, and the duty of telling it in a court of law. He was convinced that all that was necessary in giving evidence in a court of justice was that, instead of taking an oath, a witness should know that he had a solemn duty to perform, for any breach of which he would be liable to a legal penalty.


expressed his readiness, if it should be deemed desirable, to omit the provision with respect to the taking of oaths in Committee.

Motion agreed to; Bill read 2a accordingly; and committed to a Committee of the Whole House on Friday next.