§ VISCOUNT ULLSWATER
My Lords, I beg to ask the Lord Chancellor the Question of which I have given Notice—namely, whether his attention has been called to the judgment of Mr. Justice Darling in the recent case of R. v. Peel, in which the learned judge held that the "melancholy doctrine" that a wife can be 698 coerced by her husband into the commission of a crime is still the law of the land whenever husband and wife are jointly indicted of a crime, and that this doctrine is founded on the assumption that a wife will not dare to contradict her husband; and whether he will introduce a Bill to abolish this doctrine, which appears to date from the reigns of King Canute and King Ina, and bring the law into closer accord with the well-known facts of present-day matrimonial life.
I am very sorry to detain your Lordships at this late hour. Possibly you may think that you have already had quite sufficient of the law, but I regret to say that I feel compelled to bring before your Lordships a case which has recently arisen. The matter is to be raised in the other House to-morrow, but as the head of the law is in this House I am particularly anxious to get a reply to my Question from him and not from some subordinate officer in another place. I refer in my Question to the recent case of The King v. Peel. I need not say that I shall not refer in any way to the merits of the case; I did not hear the evidence and I am not competent to pass any judgment upon it. I will only say that in consequence of the point which was taken by prisoners' counsel, Mrs. Peel had no opportunity of putting her case at all and although we may congratulate her upon her acquittal, the fact that it was upon a technical point renders it a very unsatisfactory one.
The technical point, as your Lordships are aware, arises on the question as to whether, where a husband and wife are jointly indicted for and are both present at the commission of an alleged crime, the wife can be presumed to be acting under the coercion of her husband. In order to make it clear I should like to read a few sentences from the judgment of Mr. Justice Darling. The learned Judge put the matter very clearly. He said—If it appears on the facts that the husband was present when the wife committed the crime, the presumption is that she was acting under the coercion of her husband, except in certain cases … It would not be so in murder or treason … In my judgment it is not a doctrine which should be extended seeing how things have altered in the last few years in this country … I should do nothing to extend the doctrine because I think it is absolutely inappropriate to modern life.Later in his judgment the learned Judge quoted some extracts from Brooks's Abridgment, and said that they indicated 699 that the law was founded on the assumption that a woman would never dare to contradict her husband—an assumption which, whatever the case may have been in Saxon or Norman times, is no longer in accordance with the facts.
If we wish to maintain that respect for the law which we all feel, and which we desire even to see extended, I think it is absolutely necessary that the law should be strictly in accord with our customs, with our habits of thought, and with the social relations of the time. What is this presumption? What is the meaning of the presumption of law? It may be presumption on my part, perhaps, who am only technically a lawyer, to suggest a meaning, but I suppose when you say that the law presumes something it means that the facts are so clear and the relationships are so clear that the law does not require that any evidence should be given of those facts or those relationships. Whatever the presumption may have been in old times, I say there can be no such presumption at present. In proof of that, I have only to appeal to the marital experience of any of your Lordships who are listening to me at this moment. Bachelors, with more confidence in themselves than experience of women, are the only people who could take another view. I say that this presumption should be abolished; but there is no necessity to abolish the doctrine of coercion. All that you have to abolish is the presumption that coercion is used in cases where a husband and wife are jointly indicted for and are jointly present at the commission of a crime. If the woman can prove that she was coerced by her husband—and I agree that in many cases that may be so—she is entitled to prove it and to be acquitted; that is to say, on the facts she ought to get her acquittal.
All I ask is that the presumption itself should cease to be a presumption, for it connotes an inferior and degraded status—a thing which the women of the present day never would accept. The whole tendency of our modern thought and legislation has been in the other direction—to elevate the status of women and to put them in exactly the same position as men. I have had an opportunity of reading the arguments in Lady Rhondda's case before the Committee for Privileges, where it was even urged that a woman might become Commander-in-Chief, that she might possibly become Archbishop of 700 Canterbury, and very probably Lord Chancellor. Into those possibilities and probabilities I will not enter, but they show at all events that the status of women is now regarded in a wholly different way from what it was some years ago.
Mr. Justice Darling referred to this doctrine as a "melancholy" one. So far from causing sorrow I should have thought that the doctrine is really a cause for mirth. I am going to quote to your Lordships a case with which you are very familiar—'It was all Mrs. Bumble. She would do it,' urged Mr. Bumble, first looking round to ascertain that his partner had left the room.'That is no excuse,' replied Mr. Brownlow. You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two in the eye of the law; for the law supposes that your wife acts under your direction.''If the law supposes that,' said Mr. Bumble, squeezing his hat emphatically in both hands, the law is a ass, a idiot. If that's the eye of the law, the law's a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.'Those words were written by Charles Dickens in "Oliver Twist," I believe in the year 1837. A great deal has happened since then. What Mr. Bumble thought then, I believe we all think now. We are all Bumbles now.
May I also refer to a letter which appeared in The Times a day or two ago from that most distinguished criminologist, whom we are glad to think is still with us, Sir Harry Bodkin Poland.
No one can doubt—he says—… that the law upon this subject ought to be amended. … The Royal Commissioners … in their Report on the Criminal Code which they prepared in 1878 and 1879, made the following recommendation: 'We recommend the abolition of the presumption as to the coercion of married women by their husbands.'That was in 1878, and I feel convinced that public sentiment to-day is the same as the sentiment of the Royal Commissioners at that time. May I point out that this presumption does not exist in Scotland? I suppose that in a country whose inhabitants have Lady Macbeth always in mind they would not be likely to suppose that a husband would be capable of coercing his wife.
I suggest to the Lord Chancellor that he should bring in the short Bill which is indicated in the Report of the Royal Com- 701 mission. Such a Bill would raise no controversial issues between the sexes, and I am convinced that the women would support it. It is not a Bill which would raise an Irish discussion, fortunately. It would not cause any cleavage between Die-Hards and Die-Softs, nor between the Younger and the Elder Parties. It is a Bill which seems to me to be eminently suitable for a Coalition Government to bring in. As such I recommend it, and I hope that in reply to the Question I have placed upon the Paper the Lord Chancellor will be able to say that he sees no objection to this alteration of the law, that it will be useful, and will bring the law up to date.
§ LORD ASKWITH had given Notice to ask the Lord Chancellor whether the doctrine of coercion of a wife by her husband as exemplified in the case of Rex v. Peel may not lead a judge to assume the guilt of a wife, without any finding of a jury or any evidence given by her or on her behalf or any proof of crime by her, in order to explain the sentence he may be giving to a husband, and to obviate the necessity of having to find that the husband had in fact coerced her with consequent heavier sentence; and that the doctrine, for that reason and in view (inter alia) of the Report of the Royal Commissioners on the Criminal Code prepared in 1878 and 1879, requires consideration and revision.
§ The noble Lord said: My Lords, I wish also that it was earlier in the evening, but the noble Viscount has relieved me from saying anything about the Royal Commissions, and also about Oliver Twist. But since the days of the suggestion that has been made there have been one or two other cases (which were alluded to during the proceedings in this last case) and now comes what I cannot help thinking is the very unsatisfactory case of Rex v. Peel. The defendant, Captain Peel, pleaded guilty to ante-timing telegrams. Throughout he denied any knowledge of the name of the winner at the time the telegrams were sent off, and no evidence whatever was adduced, or could be adduced at the trial, that he had any such knowledge. Indeed, it was not put into the indictment against him. Then Mrs. Peel becomes a defendant, and counsel for the prosecution calls attention to this doctrine. Her defence was that there was not one shred of evidence against her, and also that this doctrine would apply should there be any 702 evidence against her. The Judge, having that brought before him, had to hold, and did hold, that there was no evidence to rebut the presumption that she had acted under the immediate coercion of her husband, and the case was not left to the jury.
Then came the sentence upon Captain Peel, and I have the shorthand note before me showing that the Judge said:
I shall assume nothing as proved against you which, in my judgment, is not conclusively proved. … If I believed that you really had coerced your wife into taking part in these frauds with you, I would pass upon you a very heavy sentence, but notwithstanding what I look upon as a fiction of our law, I do not believe that you coerced her into doing anything which she did in the course of this scheme to defraud the bookmakers. You both profited by it, and I can see no evidence at all that she knew less about it than you did, or that she was a weak person who was compelled by you to do something which would have revolted her. I therefore take it that you were not guilty of that cruel and wicked act which the law would assume you to be guilty of.
The Judge could not say that the husband coerced her. There was no evidence whatever of it. He therefore had to explain his attitude by practically assuming that Mrs. Peel was guilty on suspicion, making the remark or assertion that there was no evidence at all that she knew less about it than he did.
§ That was a pure assumption, and practically found her guilty when her evidence had never come out, and when, by reason of the ruling, she was unable to go into the box, as she desired to do, to deny on oath that she had any knowledge of the name of the winner or any complicity in any scheme to defraud such as the prosecution had put forward. Judges and other persons are entitled to their personal opinion on the matter, but in this case the Judge, in order to deal with the sentence upon Captain Peel, not being able to find he had coerced his wife, had practically to suggest that Mrs. Peel was guilty in the matter. My own opinion is diametrically opposed to that of the learned Judge, and I know a good deal more perhaps than he did about this case. It seems to me that the circumstances which have arisen in this case, as well as in those cases to which the noble Viscount has called attention, show that there is some reason for consideration and revision of the doctrine of the coercion of the wife by her husband.703
§ LORD BUCKMASTER
My Lords, will your Lordships forgive me for five minutes? I am utterly unable to agree with the noble Viscount. I do not agree with his view of life. I do not agree with the illustrations he has given. It is my firm conviction that the bulk of women to-day act under the direction of their husbands, both those who declined to say they would obey at the altar, and those who did say they would obey. That is most assuredly true as you get down into the poor and poorer conditions of life. Nor am I one of those people, in spite of my reputation, who is prepared to destroy what has been established by the wisdom of our ancestors as though it were of no value at all. This has not been introduced into our Common Law by people who did not know men and women, and men and women were much the same then as they are now. You have not changed women by enabling them to vote, and enabling them to sit in all sorts of places. They are still what they were before these different opportunities for showing their capacities were given to them. And men are just the same too. If a woman commits a crime in the presence of her husband, I think it shows the immense sagacity of the Common Law when it says you shall assume she was doing it under his direction.
As to what the noble Lord has said about this particular case, I think that he was provoking what is most undesirable, and that is a comment upon the special facts which have been the subject of judicial determination. I would most assuredly have drawn the conclusion from what I read that this woman had acted under the direction of her husband, and that had she been acting alone she never would have done the thing that she did, and the fraud would never have been perpetrated.
§ THE LORD CHANCELLOR
My Lords, the rule of law has not been stated, and I am not sure whether it is wholly appreciated. It is summarised in a short passage, and accurately summarised in my judgment, in Stephen's Digest of the Criminal Law. Let me read it:—If a married woman commits a theft or receives stolen goods knowing them to be stolen in the presence of her husband she is presumed to have acted under his coercion, and such coercion excuses her act; but this presumption may be rebutted if the circumstances of the case show that in point of fact she was not coerced.It is uncertain how far this principle applies to felonies in general.It does not apply to high treason or murder.704It probably does not apply to robbery.It applies to uttering counterfeit coin.It seems to apply to misdemeanours generally.Your Lordships will observe that the doctrine is actually a limiting one.
I do not follow the noble Lord, Lord Askwith, into his analysis of the Peel case, partly because I have not read it, and in the second place because I should think it highly improper, occupying my position, and with no knowledge of the Court to which it might be carried, to make the slightest observation on the case. But with reference to the general question raised by the noble Viscount whose speech—I think the first he has delivered in this House—I greatly welcomed and enjoyed, he will have heard enough of the debate to show that the matter is not quite as simple as I think he imagined it was when he asked this Question. There are, indeed, two divergent views. It is quite true that the Commissioners reported as he said, but the fact that that was reported in respect of a doctrine on which our ancestors, as the noble and learned Lord said, had acted for centuries, and the fact that they so reported some thirty-eight years ago and that nobody has done anything on that Report in the interval, suggest that here again opinion has not been altogether uniform on the subject.
The noble and learned Lord who spoke last said that husbands control their wives. Every one has his own experience in these matters, and I am not bold enough to make any such claim, but I do believe it to be the fact that in the lower orders of society—if I may use an expression to which I object—in the humbler ranks of society, it is, in my judgment, absolutely true that there is a very great degree of that kind of control which our ancestors had in their minds when they surrounded a woman with this protection. Then the question arises—and it is a difficult one—Has the gradual conquest of various offices and positions by women altered that which is basic and fundamental? The noble Viscount states one thing; the noble and learned Lord states another. Each view can be supported by considerable argument. After all, in existing circumstances, we cannot all marry Members of Parliament, or doctors, or even jurymen. The ordinary married life of most of us must be less eventful and less official, and in these days it is undoubtedly true that 705 human nature is exactly what human nature was when this rule was evolved by our ancestors, wisely or unwisely.
I am not prepared, without further reflection, to commit myself definitely upon this matter. Nor do I think it would be right to attribute so much importance to the opinion expressed by a single Judge, and founded largely upon the single case, as to state a conclusion to-night. I do rather agree with the noble Viscount that not only this matter but various other questions affecting the responsibilities of women require reconsideration in the light of the changes which have taken place; and I propose, after consultation with the Attorney-General, to set up a small but highly expert Committee which will express itself upon the question of principle, and make a Report to me on the whole subject. Without the Report of such a Committee, 706 and giving further reflection to it, I am not prepared to recommend or carry out legislation. I am sure the noble Viscount will find such legislation, when introduced, perhaps as pleasant as our discussion on Ireland has been this afternoon, and certainly as controversial.
THE MARQUESS OF ABERDEEN AND TEMAIR
My Lords, may I remind the House of an interesting fact. A Lord High Chancellor of Scotland, I think in the year 1690, though I am not sure as to the date, resigned his office rather than carry out an Act which proposed to make husbands liable for the non-attendance of their wives at church. He said that wives were perfectly well able to judge for themselves.
§ House adjourned at twenty-five minutes past eight o'clock.