Lords Sitting of 8 February 1939

Preamble
The House met at a quarter before four of the clock, The LORD CHANCHELLOR on the Woolsack.
LORD FAIRFIELD.
The Right Honourable Sir Frederick Arthur Greer, Knight, having been created Baron Fairfield of Caldy in the County Palatine of Chester—Was (in the usual manner) introduced.

LORD HARMSWORTH.
Cecil Bisshopp Harmsworth, Esquire, having been created Baron Harmsworth of Egham in the County of Surrey—Was (in the usual manner) introduced.
Earl Beauchamp—Sat first in Parliament after the death of his father.

KING EDWARD THE SEVENTH WELSH NATIONAL MEMORIAL ASSOCIATION BILL. [H.L.]
Presented, read 1a, and referred to the Examiners.

BASTARDY (BLOOD TESTS) BILL. [H.L.]
Order of the Day for the Second Reading read.
LORD MERTHYR: My Lords, I beg to move that this Bill be read a second time. Many of your Lordships are no doubt justices of the peace and as such have to deal from time to time with applications for orders in bastardy. I should like to say at the outset that the number of applications and orders made in a year is perhaps more considerable than many realise. In 1937 the number of orders actually made was 4,267, which is equivalent to about fourteen for every working day of the year. The number of applications, for some reason or other, is no longer shown in the statistics, but for the ten years, between 1926 and 1935, it amounted to an average of 7,200 a year. Apart from the numbers of these cases, I think it will be agreed that justice has few, if any, more anxious and difficult tasks than to decide upon the making or refusing of an order in bastardy. It

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is a matter of considerable moment to the parties on either side.
This Bill is designed to bring science and medical knowledge to the help of law in this matter. Some say that the law has not been too ready to make use of this knowledge in the past. Whether that be true or not, I am going to suggest that an opportunity now arises for a closer alliance in this matter between the two. Forty years ago nothing was known about any difference in the grouping of human blood, but since that time many discoveries have been made, and it can now be divided into twelve groups or types, each distinct from the other. I hesitate, being a layman in these matters, to enter into any technical discussion of these groups, but I think I shall not be wrong in pointing out quite briefly that blood can be divided into two distinct parts: the red cells, or corpuscles, and the serum. It has been found that if the cells from a sample of the blood of one person be taken and mixed with the serum of another, then in some cases the process called agglutination will take place, and in other cases it will not. These technical details are set out in the Memorandum which accompanies this Bill.
I do not think I need say more at this stage than that it has been possible from that known fact to divide blood into definite groups. This work has been going on in many countries of the world, and there has grown up an international system of enumeration of these groups, which are denoted by letters of the alphabet. That was not all that was found. It was found that these groups were hereditary, and the heredity of them was established by constant trial and process to be governed by a Mendelian law which seems to be quite immutable and subject to no variation. It has been found that these groups are present in the blood of a human being from before birth till after death. Some doubt has been cast on that statement by some people, and I have therefore taken considerable trouble to ascertain whether I am justified in making it, and I believe I am. Although it may be true that in a very small number of cases the group is not apparent in a child until it is of an age of some months, yet it is always apparent sooner or later, and therefore the worst difficulty that can occur would be that
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the test would have to be postponed for a very short time, and that in only a very small number of cases.
But I am satisfied from what I have read and heard that the group—this is the next point—in a human being never changes, and that no exceptions have yet been found to that rule except those which are certainly due to illegitimacy. Proceeding from that stage, we get a further advantage, and it enables us to say that if we know the blood group of the mother of a child and also that of the child itself, we can draw up a table stating to what group the blood of the father must belong. From that it follows that if a man is accused of being the father of a child and his group is found to be not in that table, then he cannot be the father of that child. It can also be said that if the child does not inherit its group from its mother, then most certainly it must have inherited it from its father. If, again, the accused man does not show that his blood is in the group, then he cannot physically be the father of the child. Another rule is—I think it is set out in the Memorandum—that a parent whose blood is of group M cannot possibly have a child of group N, and vice versa.
From those rules we can establish a procedure which, in my submission, can help materially in the administration of justice. I do not want to exaggerate by any means the use to which it can be put; it is limited. But within those limits I submit that it can be of great assistance. By this means we can never show that a man is the father of a child, but we can show in a certain number of cases that he cannot be the father of the child. Your Lordships may be curious to know in what proportion of cases that can be shown. I have looked up several authorities on this point, and I think that if I stated that in 10 to 15 per cent. of all the contested affiliation cases in the courts it could be shown that the father could be definitely excluded, I should not be exaggerating. I have seen figures which raise that proportion to as much as 20.5 per cent., judged by results on the Continent, but I am content to say that in roughly from 10 to 15 per cent. of the cases it could be shown that the alleged father is not in fact the father.
Another interesting fact is that it has been found from results all over the world that, out of every three accused men who are in fact innocent of being fathers, one

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can be exonerated by this method—one out of every three who are in fact innocent. Taking these two figures together, they lead us to the rather startling and disturbing conclusion that the percentage of these affiliation cases which are brought in the courts against men who are in fact not the fathers is surprisingly high. Taking these two figures together, and multiplying one by the other, brings us to a figure of somewhere between 35 and 40 per cent., which I confess I found surprising and rather disturbing. What would be the results of the adoption of this system by such a Bill as I have the honour to present to the House this afternoon? I claim for it not that it would be a great advantage, but that one of the results would be that the number of cases would be reduced. I put that forward, and I base that statement on results actually arising abroad. The total number of cases would be slightly reduced, and those would be the bad cases. The good cases, where the mothers had substantial cases and substantial proof, would be unaffected, but the bad cases, where the man was being falsely accused, would be slightly reduced.
Partly, I claim, as a consequence of that, perjury in the courts would be to some extent reduced, and I do not know if there is any class of case in the courts, to-day, where perjury is more common than it is in paternity cases. I claim therefore that to some extent imprisonment would be reduced. If I can show that in a larger number of cases men would be excluded from being adjudged the fathers of children of which they were not the fathers, then I think it will follow that there will be less imprisonment, because I find that in the year 1928 there were no fewer than 2,908 imprisonments in this country for non-payment of affiliation orders, and in 1935, even after the passing of the Money Payments (Justices Procedure) Act, a very useful Act indeed, there were as many as 1,284 imprisonments in that year. I should like to mention one case in particular, Rex versus Batchelor, tried at the Kent Assizes in 1934, where the mother of a child was convicted and sentenced for perjury arising out of affiliation proceedings, and the man who was accused of being the father of her child had been to prison no fewer than nineteen times in three years. He had always stoutly denied being the father, and he had always refused to pay. It is a rather sinister reflection upon our
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Bastardy Laws that, rightly or wrongly, he could never have the order made against him revoked. Once such an order has been made it is irrevocable under the law of this country. If there had at that time been available blood tests it is just possible that both that man and that woman might have been kept out of prison.
I should like just to mention the use to which this has been put abroad, because some people say that we do not know enough about it in this country. It has been used to a very great extent on the Continent, and particularly in Germany and Scandinavia. In Germany there were 5,000 cases in which it was used in the courts before 1928; there has been a large number in Scandinavia and other countries, and in at least twelve other countries it is used legally. In at least two American States it is used legally, and in many others legislation is pending or it is unofficially used. This Bill brings to the Courts of Law these tests.
I will now explain very briefly some of the clauses in the Bill. Clause 1 is perhaps the most important and perhaps the most controversial clause. It says, to use the important words, that "the court may, and at the request of either party shall" order a test to be made of the blood of all three of the parties to the case—the mother, the child and the alleged father. We have deliberately used the word "shall," because we fear that if it is not made compulsory the practice will very widely differ all over the country. There are in England and Wales over 900 courts of petty sessions, and it would be an undesirable thing if the practice of each of them should differ. There must inevitably, if there is no compulsion, be some courts which will never have tests and others which will make frequent use of them. I submit that it is reasonable to say that a court may use its own discretion if no party asks for it, and that if either party does ask for it then the court shall order it. It may be asked why you put in a clause for the mother of the child to ash for it, and how she can benefit by it That is not very important, and I agree there is not much in it, but it is suggested, and I think rightly, that nothing should be denied to one party which is given to the other, and that if there are any cases in which the mother desires a test then there is no real reason why she should

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not have it—because I am not here this afternoon to favour either party.
The courts have no power at present to order tests. Tests have been used, but only by consent. If no consent is given there is no power to compel tests, or to take into account or to comment upon the refusal to have a test, or to use the fact as evidence at all. The result of this clause will be, I think, that tests will be ordered wherever there is a real conflict of evidence in these cases. There are, of course, some cases where the paternity is admitted, and the only conflict is as to the amount to be paid, but where there is a conflict as to paternity I think it is right and proper that every effort should be made to use a scientific method to determine the issue. I do not think there is any real risk of applications for these orders being made frivolously, because your Lordships will see later that if a party does make a frivolous application the court has power to order that party to pay the whole of the costs of the test. It may be asked why it is necessary to order all three parties to have tests; why not the father and the child only? In some few cases it would be possible to achieve a result with the two only, but only in a very small proportion of the cases. Therefore it is proposed to make it uniform; it is to take place in respect of all three. The Bill goes on to say that if the mother should refuse, the court shall dismiss the application. That may seem a little hard, but I think it is necessary, and your Lordships will notice that there is no necessity to do it at once. The court will be able to adjourn the case so as to give the mother time to consider the matter and to take advice, professional or otherwise, on the point.
Clause 2 is really only machinery, and the next subsection to which I would desire to draw the attention of the House is subsection (3) of Clause 3. That enables a certificate of a pathologist, that is, the actual tester, to be accepted as evidence in a court of law. That is admittedly a departure from the usual law of evidence, but there is a precedent for it in the Food and Drugs Act, 1928, which is in common use in our courts to-day, and I think has justified itself, and justifies the repetition of it in this Bill. Your Lordships are no doubt aware that constantly the certificates of analysts are accepted as evidence without their
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own presence, in cases of milk adulteration. This will mean a great saving of expense. If a blood test is undertaken to-day it is necessary to call as a witness the pathologist who actually made the test. He may have to travel the length of the land in order to give evidence lasting about five minutes, and that must cost a very considerable amount to the parties. Most of the parties in these cases are not people of much means, and it will therefore be of great benefit to them if this provision is inserted and these tests are brought within their reach.
Your Lordships will notice in subsection (4) that no comment is to be made on a test by the parties or their representatives if that test has disclosed that the accused man might be the father of the child. This is a point upon which any amendment that your Lordships desire to move would be very seriously weighed. I confess that I am in some doubt as to the wisest procedure. Some say that if the test is what I call negative, that is, if it shows that a man, with millions of others, might possibly be the father, that information should be withheld altogether from the court, because the court otherwise might jump to improper conclusions. It is interesting to notice that in the State of New York, where they have had some experience, they actually changed the law in order to bring that about, although there is a difference there, in that cases there are heard by juries, and they are not in this country. But on the whole I am inclined to favour the report of such a test to the court, because even if the magistrates did not get it after an adjournment they would undoubtedly suspect what had taken place. And really the failure to disclose the nature of the report would not be likely to influence an experienced magistrate. And so it is provided that the result of the test shall be reported to the court but that no comment shall be made upon it by advocates or by the parties. I put that subsection in from my own experience, because in my own court I have heard an advocate attempt to suggest to the bench that the fact that the man might be the father in some way assisted the corroboration of the case, which of course is most definitely not the case.
Clause 4 deals with costs, which are an important part of this Bill. It may be said that this is going to cost too much

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to the community. Now a discretion is given to the court to award the costs of these tests out of public funds, and by that I mean the same fund which pays the expenses of poor persons who are litigants in the courts or which provides for their defence in criminal cases. As I have said, if a party demands a test, he can be made to pay for it. If the court on the other hand, for its own convenience and assistance, orders a test, then it may—not "shall" but "may"—order the costs to be paid out of public funds. I venture to think that the discretion given in the Bill is the right one, and that the costs would not really be excessive. We ought, I think, to be able to afford something for the advancement of the administration of justice. Other things cost money in the shape of imprisonment, further litigation, and so forth, and the more these tests are used the less the cost will be.
I hesitate to name any figure. I prefer not to do so in case it may be wrong, but I do submit that if these tests become universal, as I should hope, the costs of each test will be greatly reduced, and reduced to a figure which is really quite small. One example I might give. In order to conduct the test of the M and N types, it is necessary to use a certain serum, and I understand that a parcel of this serum can be used any number of time but that it will not keep, and so, whether it is used three times or three hundred times, it goes out of use after a period. I think it follows from that that if these tests become common, as I hope they will, then the costs will be very greatly reduced. At present it is necessary to get that particular serum from abroad, as it is unobtainable in this country. If this Bill became law, however, it would then be easily possible to obtain it here because it would be worth while.
I must apologise for a little piece of bad drafting, which I do not think matters very much at the present stage, at the head of Clause 5, but it does not affect the substance of the Bill in any way. This clause deals with rules which it is suggested should be made by the Lord Chancellor, and these rules are going to be very important, because they deal with a number of difficult questions which have been raised, and rightly raised. I would remind your Lordships that these tests are going on now under conditions which are
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entirely unregulated. It is now suggested that definite rules shall be laid down for the conduct of the tests, and—what is even more important—for the taking of the actual samples, which is done of course at a different place and at a different time. It is most important that a stereotyped practice shall be established for the taking of these samples all over the country. For example, there will be a separately coloured bottle for the reception of the sample of the blood of the father, another colour for the mother, and another for the child. That will be a great advantage because it will reduce the possibility of mistakes, and it does not exist to-day.
It is of the greatest importance that the process of taking these samples shall be made as easy as possible, and as proof against not only mistakes but fraud as they can possibly be made. It is suggested that the rules shall be drawn in such a way as to ensure these results. The question may be asked: How are you going to be certain that the identity of the alleged man is sufficiently established when his sample is being taken? I am sure it can be done, and that is a question that will be dealt with in these rules. Clause 6 says that these tests shall be made by approved persons in the shape of registered medical practitioners. I am suggesting that a possible amendment might be made to this Bill in Committee or at some other stage, and it might be made to apply not only to courts of summary jurisdiction but to all courts—that is, to Appeal Committees of Quarter Sessions and even possibly to the High Court.
Finally, what are the objections to this Bill? I am going to take a little more time, if I may, in dealing with some of them. I have been told that this is premature and that we do not know enough about it. I concede the point that we do not know enough about it to be a good one in the mind of anybody, provided he has taken the trouble to read up and find out all that is known about it. If people have read all the literature on the subject, if they have heard all there is to be heard about it, then and then only I concede it is quite justifiable to say that not enough is known about it. But if they have ascertained all that we do know, it will be found a very great deal is known about it, not only in this country, but perhaps even more so

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abroad. It is said this is a compulsory operation and is unfair. I have taken the trouble to find out how much there is in that statement. I have had it done upon myself, and I can therefore say from personal experience there is really nothing in that point at all. The test consists of one prick of a needle, just under the nail of the thumb, and in five minutes' time it is impossible to trace the slightest effect or the slightest sign. I have dealt with the cost. It is said there may possibly be exceptions to this rule resulting in injustice. I have taken a great deal of trouble to find out the answer to that question. I am assured there has never been an exception to the law of heredity in this case except those which can be definitely established to be due to illegitimacy. I do not know exactly the number of tests that have been made, but I have seen it stated that it is at least more than 370,000.
It is said that mistakes may be made. That is perfectly true. Mistakes can be made by the members of every profession any day of the year, but there is no real reason to suppose that so many mistakes are going to be made in this matter as will justify the withholding of this addition to our methods of justice. There is no real justification, in my submission, for suggesting that the pathologists who do these tests are going to make more mistakes than other doctors do, and we all take these risks every day of our lives. I would specially like to draw your Lordships' attention to this, that even if a mistake were made in this test, it could never result in the making of an order of paternity against a man who was not in fact the father. However bad the mistake, it could only result in the refusing of an order to a woman who ought to have had one. That may be bad enough, but it is nothing like so bad, in a sense, as convicting a man who is innocent. It is said that this Bill does not help the case of the mother. I frankly admit that that is so, but I would like to say that in no case does it harm the case of the mother. Where that case is a good case, I cannot conceive any possibility of this Bill in any way damaging the case of the mother and the child—not in any way at all.
Finally, if this Bill does not pass into law, what will happen? These tests will go on. They are not illegal. They will
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go on in small numbers, but they will be expensive; they will be for the rich only; they will only be able to take place where there is agreement. They will be completely unregulated; there will be no standardisation of practice, there will be no rules. I suggest that, in preference to that state of affairs, it would be better if this Bill became law in order to bring this Bill within the range of a much greater number of people. I should like to add that if your Lordships do give this Bill a Second Reading this afternoon, I shall have no objection to its being referred to a Select Committee, and in fact I would, in that event, myself move that the Bill be referred to a Select Committee of your Lordships' House. I venture to bring this Bill forward, and ask your Lordships to give it your very careful consideration.
Moved, That the Bill be now read 2a.—(Lord Merthyr.)
LORD GORELL: My Lords, I am sure your Lordships will appreciate the lucidity of the exposition with which the noble Lord has accompanied the Bill, and also appreciate fully that his one desire is the further elucidation of the truth. Nevertheless, I hope your Lordships will not give the Bill a Second Reading this afternoon. In saying that, I am speaking on behalf of the National Council for the Unmarried Mother and Her Child, whose presidency I have the honour to hold. The noble Lord indicated some of the objections which are felt to this measure. I think he said that no one who maintained that at the present time medical knowledge of this matter was not sufficiently established could really have gone into the matter very fully. I can only say, in answer to that, that the legal and medical experts with whom my Council have been associated in this matter have given this the very greatest consideration. They have also had the opportunity very courteously extended to them of an exposition of the principles of the Bill by the noble Lord, but nevertheless they have come to the conclusion that the time is not yet ripe for the passage of this Bill.
The noble Lord admitted the possibility of mistakes. The mere admission of the possibility of mistakes would seem to me to be a very decisive argument against passing the Bill. Mistakes might be few

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in number, but their consequences would be serious. Even if medical knowledge is sufficiently established, if and when these tests are fully and properly taken, nevertheless it can hardly be denied that at the present time there may be many mistakes because these tests would not be fully and properly taken. There was one point on which the noble Lord hardly touched at all—namely, the number of people who are really qualified to conduct these tests in this country at the present time. I am given to understand that they are very few indeed, and if that be so it would inevitably follow either that there would be great delay in the taking of the tests, or else they would be taken by those who are not properly qualified, in which case the opportunity for error is obviously increased, with the consequences upon the applicant.
The noble Lord said that he introduced the Bill without any wish to favour either party, but at the same time he was obliged to admit that if the Bill did in fact become law, it would really favour the defendant. It can in no circumstances, I suggest to your Lordships, benefit the applicant. It is a Bill framed from a man's point of view. From the point of view of the woman, which is that with which naturally my Council is primarily though not exclusively concerned, the time is not yet ripe for the passage of this Bill. It introduces a very drastic suggestion that a certificate given by an approved person, who need not come before the court to save expense, shall be treated as the sole evidence. We have already had cases which suggest that when tests are taken they are treated, naturally, by the magistrates as having almost an air of infallibility about them. If a medical practitioner of standing comes before a court and suggests that in his view such and such consequences follow from the test, it is natural that magistrates should accept that evidence, and we have reason to fear that already there have been certain miscarriages of justice in that respect. But if, under the law, it is held that that is to be the sole evidence it is greatly to be feared that more cases of that kind will arise, and those who have really been into this matter very fully are not prepared to accept the claim of the noble Lord that good cases will remain unaffected.
The noble Lord, in his exposition of subsection (4) of Clause 3, drew attention
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to some of the difficulties. The National Council, on whose behalf I speak, has no desire whatever to obstruct the elucidation of truth in any way which is established, but we are not satisfied that medical knowledge is yet sufficiently advanced, or that there are enough practitioners. The last suggestion of the noble Lord that the Bill should be referred to a Select Committee does go some way, I admit, to meet the objection, but surely it would be preferable, rather than adopting the principle by passing the Second Reading of this Bill to-day, that the Bill should be withdrawn and that a committee of inquiry should be set up under the auspices of the noble Lord upon the Woolsack with the collaboration of the Ministry of Health, to investigate how far this position is at present justified. Then a Bill could be introduced with the sanction of those who have investigated the matter.
VISCOUNT DAWSON OF PENN: My Lords, I think it will be common ground that there is need for objective evidence in these bastardy cases. At present they are notoriously unsatisfactory in many instances. The evidence often is purely subjective. The evidence may, therefore, be unsatisfactory and the verdict inconclusive. On the one hand, women may suffer from the fact that the best checks we know of to obtain the truth are not forthcoming. On the other hand, there are cases where a woman obtains a judgment against a defendant without being quite sure who the father of her child is, and in some instances it is even graver than that, for it has occurred that a woman will put up a man as a stalking horse, relying upon the fact that his position and his purse will make him desire to escape publicity. I think very often injustice is done. The present law in many respects is defective. There is a lack of objective evidence. The word of one person against another is not a satisfactory way of arriving at a decision. For those reasons we do need objective evidence if it can possibly be secured.
The bloods of people, like the eyes of people, differ. There are various qualities of bloods, and those qualities reside in the red corpuscles which float in their millions in the blood stream. The noble Lord, Lord Gorell, said that this subject has not been studied. I think I am safe in saying that there is hardly a subject in medicine which has been so thoroughly examined in the study. Of these types of

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blood there emerge two varieties A and B that give us four groups of blood. There is the blood which has the quality A, and blood which has the quality B, blood which has the combined qualities A and B, and blood which does not possess these qualities at all. Those were for convenience labelled A, B, AB and O. If I am to urge the case I want to put before your Lordships it is necessary for me to dwell on these technical matters. Each parent will have blood coming within one of those groups, or will have blood which is a conjugation of two of them, and each parent contributes one of those qualities to the new-born life. Now in this connection the noble Lord who moved the Second Reading of the Bill, in a very full and lucid speech, set forth two propositions. One is that neither quality A nor quality B can appear in any child unless that quality is present in one or both of the parents. To that proposition there is no exception whatever. The second proposition is that if you take children and parents the combinations of AB parent with O children, or vice versa, of O parent and AB children are impossible. There is no exception to that proposition and it is on those two propositions that this work depends.
The first question that obviously arises is this: Are these propositions reliable for acceptance? I may say that the study of these questions received an enormous impulse as a result of the Great War. This particular study arose out of the many studies in connection with transfusion. These two propositions which I have stated rest on tests made by no less than fifty independent observers spread over the civilised world on a total of 8,717 families with 19,089 children. Now among this large group there were thirty to forty discrepancies. It is important to study those discrepancies. It will be found that those discrepancies were due either to faulty technique or to illegitimacy. That investigation led to a second investigation which differed from the first in that the first related to 8,717 families which included father and mother. All students of heredity have come to know that when you want to study the hereditary relations between parents and children you must take the mother-child observations, for we have to remember the maxim of Roman law, pater semper incertus. In this more recent study there were taken 10,092
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mothers—not families, but mothers—and 12,943 children. Those observations were spread over a large number of observers of the first order, and spread about the different countries of the world. In that second investigation no single exception was found. I ask your Lordships, how often is it that in the scientific world you get such a definite conclusion as that, supported not by one set of men but by numbers of different observers?
There followed an interesting fact, which I cannot really forbear bringing forward, which may interest the mathematically minded because it turns on the theory of probabilities. Under the Mendelian law you can compute mathematically what are the probabilities in certain groups of observations. A theoretical computation was made of the frequency with which a quality which appears in the parent reappears in the child. If you compare that theoretical computation in the group that I have just mentioned, you will find that the computed result is very nearly identical with the actual observations. From a scientific point of view, to anybody who is mathematically minded, which I am not, I think that is a result which may be almost described as thrilling. I would say that seldom were facts better tested than this. I would ask your Lordships, how often anywhere do we reach 100 per cent.? How dull would the proceedings in your Lordships' House be if the various subjects which we have to discuss here could be brought so near 100 per cent.!There would be no use in the continuance of our meetings.
More than that, there comes along at a later period the discovery of two other qualities in the red corpuscles of the blood, M and N, and these can be used in skilled hands for confirming the results under group A and B. The groups M and N are interesting in that whereas under the former grouping there were a certain number of people—43 per cent.—who did not have any of those qualities, in the M and N groups there is no contracting out at all. The quality M or N is present in the red cells of every person from birth to death, immutable, unchanged by illness or any circumstance. You can only, therefore, have three groups, M, N and MN. There it is quite well known, and it has been proved by observation, what will be the transmission to the children. I agree with the noble Lord, Lord Merthyr, that it is therefore

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possible to set out a table putting in the left-hand column the various groups of parents, in the next column putting against each group of parents the possible blood character of the children which they can produce, and in the third column the groups of children it is impossible for them to produce. As I have already ventured to submit to your Lordships, there is no exception so far found to those two laws.
Let it be admitted that this test is of limited application. It can only prove the negative. It can only prove non-paternity and it can prove non-paternity to the extent of 30 per cent. of the innocent men. That is no injustice. What injustice can there be to a woman to have the truth brought out? In my judgment one advantage of having these tests will be that there will be a definite reduction of the cases which are wrongly based and falsely brought. It is most important to emphasize that there is no injustice to anybody in any case by bringing out the truth. I would draw your Lordships' attention to the fact that this country is a laggard country in this matter. It appalled me to hear the noble Lord, Lord Gorell, say it is not yet time. It makes me frightened that he is on the downward grade towards reaction. Every country in Europe adopts these principles. Those who adopt these principles are culled, not from the scientists of one country but of the whole civilised world. I would submit to your Lordships that this is a fair test, and it is a test in the interests of justice.
And now for the performance of the test. In order to prejudice it, it has been spoken of as an operation. It is the simplest thing done in every day practice. It is becoming increasingly the practice, and properly the practice, to take specimens of blood from people who are not well. It consists merely in pricking with a needle the finger or ear and taking one drop of blood. That is all that is required. Any doctor can take that drop of blood as part of his everyday routine performance. Where the difficulty comes in is in not having the proper people to examine. I really would protest against my noble friend stating that there are not ample people in this country to carry out the tests. There is not a teaching centre, not a hospital of the first importance in this country, where there is not a pathologist who is perfectly well able to perform
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them. Any statement to the contrary is simply incorrect. I do not think the machinery is really worth while discussing now. That can be left to the Committee stage, or, if your Lordships think fit, to a Select Committee. But whenever I hear any speaker point out the difficulties of doing a thing, I am always suspicious that he does not want to do it. It is folly to think that we cannot devise simple rules to make this foolproof. I will not take up your Lordships' time in discussing it, but I am perfectly sure that five people round a table would in half an hour draw up a perfectly satisfactory scheme.
It is my privilege to commend this Bill to the support of the House. It would lead to further justice, and I think in a way, if I may say so, that it would remove rather a slur upon this country, both its medicine and its law, that we have been so long and tedious in adopting something so completely proved. In venturing to commend it to your Lordships, I will ask your indulgence, if I may, in doing reverence to the great men whose discoveries were the foundation of the knowledge with which we are concerned to-day. It is really a romance. If we take the twenty years from 1860 to 1880, it was a wonderful period of the mid-Victorian times. That period was really the dawn which preceded the day. It opened with the publication of the Origin of Species in the year 1859 or 1860. This wonderful book of Darwin's set the whole of the world aglow and, remarkable to say, I believe the first edition was sold out within two days, which for a scientific work must be almost a world record. Side by side with Darwin was Pasteur, who discovered first that air and water contained microbes and that those microbes could be killed by heat. That sounds extraordinary to-day, but that was the beginning of an era. Then, hand in hand with Pasteur, was Joseph Lister, who went to Glasgow and discovered the causes of the infection of wounds and thereby brought about the birth of modern surgery. Side by side with him I will mention Manson, who in the last year of the 'seventies discovered how the mosquito played its part in tropical diseases; he laid the foundation and was the father of tropical medicine. All those men lived in that wonderful time. As we know, the harvest we reap from them has been immeasurable.

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Amongst those men there was no one greater than Mendel, and Mendel was almost the contemporary of Darwin and Pasteur. His first paper was published in 1865. And here comes a curious fact: the discovery in 1865 for some reason passed unnoticed. It became buried and was lost, and was never found again until the beginning of this century. In a curious way there was thus fulfilled the boyhood wish of Mendel himself. There have been found lines written by him in his boyhood which I venture to read to your Lordships. He said:
"May the might of destiny grant that of seeing, when I arise from the tomb, my art thriving peacefully amongst those who are to come after me."
In other words, he was quite prepared that his work should be done; he cared but little that it was not accepted at once. It was a pity it did not claim attention earlier, because I think it would have modified some of the later views which Darwin held. Be that as it may, it was not re-discovered until 1900, and we have the picture of this romantic figure experimenting for years with the flowers in the garden of the monastery of which he was the abbot, forgetful of fame while at the time forging immortality. I beg to support this Bill. I do so with complete confidence, and I may say that it has the support of the scientific world.
LORD RAGLAN: My Lords, I have for several years advocated, both in public and private, a measure such as this, and I should like to say a few words on the Bill. The noble Lord who introduced it has told your Lordships that perjury is rife in these cases. My experience, and that of those whom I have consulted, is that perjury is committed quite as often by the woman as by the man. What too often happens is that a child is born; the father is uncertain, or, if he is certain, he may be somebody with no money; the mother of the child and her mother go into committee, and they select some man in the neighbourhood who is earning good wages. A case is brought in the court; the girl goes into the witness-box and tell the story of how the defendant intercepted her one dark night on her way home and assaulted her. On any attempt at cross-examination she breaks down in a flood of tears, and on some benches the magistrates pull out their pocket-handkerchiefs. The case is then practically
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over. Of course, there has to be corroboration, but that corroboration is readily supplied by the girl's mother, who goes into the witness-box and swears that she had an interview with the defendant and he made an admission. There are several well-recognised formulae used by mothers for this purpose.
Then comes the defendant, and he is set the impossible task of proving a negative. He may be, and in certain cases which I have heard I am convinced that he was, telling the truth when he denies having spoken to the girl or even having seen her in his life. But he is seldom believed when he says so, and so he usually relies on alibis. Of course, he does not produce a genuine alibi; few of us can say where we were at 7 p.m. on a certain night a year ago. What he too often does, therefore, is to produce an alibi which is obviously fictitious and thereby convince the court even more strongly of his guilt. But even if he can produce a genuine alibi, he is still not out of the wood. If the court believe it, the girl can then appeal to Quarter Sessions and swear that she made a mistake about the date. A case like that happened in my county only last month. The man's only chance of getting off is if he has a piece of luck.
A case happened at Cardiff only a couple of years ago, where a man was sued by a girl; it was of course a purely fictitious case. He happened, however, to know something, and so he asked that the baby might be produced in court. When the baby was produced in court it proved to be a nigger baby. He was very lucky; had it been a few shades lighter in colour, he would have had to do what many hundreds of men are doing now in these cases: pay for the child of another man. In another case of which I heard, a woman brought a charge against a man and he found out, by a piece of luck, that she had brought a case in respect of the same child against another man in another court and lost it. That is the sort of case which happens to people daily in our courts. This is due partly, of course, to the sentimentality of the magistrates. Most magistrates are elderly men, and most elderly men are very sentimental where young women are concerned. As for the women magistrates, I regret to say that it is my own personal experience, and what I have heard, that most women magistrates re-

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gard any suggestion that any woman has done anything wrong in a sexual way as a direct attack upon their own virtue. This Bill, of course, is not going to remedy all these evils. It is very hard on these men that the women should have an able advocate like Lord Gorell, and that no society for the protection of men who are paying for other men's children has been or is likely to be formed. It would of course be very difficult to judge who was really eligible for membership of such society.
This Bill, however, will do a good deal to remove the evils from which we are suffering under the law, and to bring the law into line, in this respect, with what it is in many others. Old people used to suppose that human testimony was the best testimony, and circumstantial evidence was always regarded as, if not bad evidence, at all events inferior evidence. That is being rapidly changed; and in many cases nowadays evidence given by the microscope is the evidence which is relied upon. I had an opportunity last year of going over the Forensic Laboratory at Cardiff, and I was astonished at the progress that is now being made. I learned that practically in all cases of murder, rape, forgery and burglary, the help of this or similar laboratories is called upon, and under this Bill we shall be merely putting the law with respect to bastardy on the same footing. You cannot rely upon human testimony, but you can rely upon the testimony of the microscope, and I think that this Bill will give us a great advantage in the administration of justice.
LORD ATKIN: My Lords, I would like to say a word or two in support of this Bill, in the interests of justice as I conceive it to be, and I think we are indebted to the noble Lord who introduced it. I speak, as the noble Lord opposite would say, as an elderly magistrate and therefore one having the taint of sentimentality about me, but I have had the privilege of presiding over courts of petty sessions in two rural districts in Wales, and I have had an opportunity as a Judge of hearing cases coming up for hearing on case stated. Also I have had the opportunity of hearing these cases investigated by a society, the Medico-Legal Society, which specially concerns itself with such problems. I agree with the noble Lord that bastardy cases are cases of the greatest difficulty. To my mind they are the most
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difficult cases of fact that come before any court. On the other hand, perhaps disagreeing with the noble Lord, I consider that the local magistrates are a most admirable tribunal for determining them. I think it is almost impossible that you could find a more satisfactory tribunal, certainly in the country, where one sits with a number of magistrates who as a whole are able to be really representative, and at any rate have a thorough knowledge of the manners and customs of the people from whom these complaints come.
I am not sure that I would share the expression of criticism that fell from the noble Lord opposite in reference to women magistrates. I do not think the experience of the Bar has been, as a rule, that women magistrates favour their own sex—that is perhaps a question of opinion—but there can be no doubt that these cases do give rise to very hard swearing on one side or the other and sometimes on both. I doubt whether quite as many cases as the noble Lord suggested arise where false charges are made, where the applicant does not believe in the charge, but certainly there are a great number of cases. As is well known, our law at present is that the evidence of the woman alone is not to be accepted and there must be corroboration of what she says. I am afraid it is true that the corroboration very often comes from the family, sometimes quite rightly, but it is not a very difficult thing to suggest a conversation which amounts to corroboration. There you have the girl on the one hand, and her corroboration, and obviously, generally, the only witness on the other hand is the man, because it is very difficult for him to prove that he was not in the particular place at the particular time to which the girl speaks. The result is that these are cases which give the greatest anxiety, as I know, to the people who have to try them, and there could not be a greater relief to the judge of fact than to know that there are some sets of facts in which it can be proved quite conclusively what the fact really is.
I agree that this Bill only goes to a proportion—call it a small proportion—of the cases that are heard, but in the smallest proportion of cases, if in fact you can make sure that the man is not the father, then that is an immense addition to the equipment of justice in this country, and I cannot think that it ought to be rejected. It must

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depend upon the accuracy of some scientific statement that that fact can be proved beyond doubt. For my part—I have read something about it beforehand—I am quite prepared to accept the statement made by the noble Viscount, Lord Dawson of Penn, speaking for the scientific world, as to the fact. I assume that, and if you assume that you have this, that in a certain number of cases it may be proved conclusively that the man is not the father by taking certain tests. If that is so I cannot understand why a court of justice should reject that evidence. Of course the courts do not reject it if it is tendered to them, and the question is whether they should be empowered to demand it. I suggest that they should have the power to require it to be laid before them.
There is one proposal in the Bill to which my noble friend referred—namely, the suggestion that if the mother refused the test the case should be dismissed. As at present advised I am inclined to think that that goes too far, because it may very well happen that a girl has a really good case, and thoroughly corroborative evidence, and yet, reasonably or unreasonably, she may object to exposing herself, and more especially her child, to what she will be alarmed at—blood letting, as she will think it is. I can imagine that a girl might quite determinedly refuse to submit to such a test, even although she may have a good case, and I am inclined to think that the right sanction would be that her refusal should be treated as evidence but not as conclusive. However, that is a Committee point. On the other matters I venture to think that if the Bill goes to a Select Committee any difficulties that arise could be very well dealt with on the Committee stage. I suggest to your Lordships that the principle is sound. Here is a case of a Bill giving the most powerful and conclusive aid to courts of justice in one of the most difficult matters with which they have to deal, and I submit to your Lordships that it should at any rate be given a Second Reading.
LORD DARCY (DE KNAYTH): My Lords, the noble Lord, Lord Gorell, quite rightly said that this Bill would in fact only benefit the defendant, but I cannot help feeling that if you examine that statement a little further it is perhaps not quite such a criticism of the Bill as
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one might think, because the Bill gives to the defendant no benefit except that to which he is already entitled as of right. Everyone who enters a court of justice is entitled to justice. If your Lordships look at it from the other side, does the Bill in any way take from a complainant anything to which she is entitled? I venture to suggest that it can do nothing of the kind, as no person is entitled to a vested interest in a miscarriage of justice. The seriousness of these cases is that the court is being made use of for the purpose of a deliberate fraud, and my noble friend is doing a great public service in bringing forward this Bill. I think he is helping to put an end to that state of affairs. The Bill is a step in the right direction. I am not quite happy possibly in regard to the arrangements about certificates, but that is a matter which can be dealt with in other circumstances, and I hope your Lordships will give the Bill a Second Reading.
THE LORD CHANCELLOR (LORD MAUGHAM): My Lords, I think your Lordships will agree that this is an interesting measure, and we have had an interesting debate. I would say at once that the view of the Government is that the offer of the noble Lord who introduced the Bill to agree to its going to a Select Committee is one which ought to be accepted, and accordingly the Government will not attempt to prevent the Second Reading being carried. I would like in those circumstances only to make a few observations on the matter with a view of showing why the Government at the moment are not pledging themselves to support the Bill in at any rate its present form, and to show reasons for a certain amount of hesitation in that matter.
It has been correctly stated that there are between 6,000 and 7,000 of these cases in the courts throughout the country in every year. It has not yet been stated, I think, but it is true, that 1000 of those cases, roughly speaking, are dismissed, and, perhaps not unnaturally, there is no means of ascertaining how many of the 5,000 to 6,000 cases which succeed are in fact uncontested cases, where the respondent apparently does not appear, or if he appears does not put up a fight, nor do we know in how many of the cases the girl is in a position to prove her case beyond all reasonable doubt by her own evidence and the corroborative evidence that she has been able to put in. Accord

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ingly, it is difficult to tell in how many of these 6,000 to 7,000 cases there is really such a doubt that the tests suggested will be of real value, or of any value at all. If you try to ascertain the number of useful cases in a year—by "useful cases" I mean so far as regards the application of these tests—it is a little bit difficult to give the number, because in the first place you do not know how many real cases there are, and in the second place, having ascertained that number, you have to divide it by three, because it is only in 30 per cent. of those cases that the defendant is going to succeed by reason of the tests being satisfactory from his point of view.
There is this danger in the introduction of these tests which has to be borne in mind. I am not saying that any of the objections I am taking are conclusive; I am only suggesting them for consideration. Suppose a man to be contesting such a case, and suppose, when the girl has come forward and has given her evidence and the court has heard corroborative evidence, that the defendant sees quite clearly that the court must decide against him, will not his immediate reaction be to say: "Well, I will demand a test because I cannot suffer any harm as the result of a test, and for all I know it may be in my favour." And accordingly, I fear that there may be a great many more cases of requests for a test than are cases where a test would really be needed.
And there is this to be pointed out, at any rate unless there is a Report by a Select Committee which would be conclusive upon the point I am going to mention. Your Lordships may be perfectly convinced, as I should be, by the scientific view presented by the noble Viscount, Lord Dawson of Penn, but the public is not listening and has not had an opportunity of listening to his evidence, and in my view it will take some time and a great deal of evidence to convince the public as a whole, not only that these tests in 30 per cent. of the cases will result in the acquittal of the defendant, but that the way in which they are taken is wholly and in every case likely to be satisfactory. What I mean is this. The scientific statements for which the noble Viscount, Lord Dawson of Penn, has vouched from his experience and knowledge are cases where I assume the tests have been taken by people of great skill
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and experience. Will they always be so taken? And is there not a chance that in a certain portion of cases there will be mistakes made? I have the greater reason for thinking that that is not an impossible view inasmuch as the eminent pathologists who have been advising the Home Office have suggested that when the tests taken by one of the approved persons under Clause 2 of the Bill have shown that the blood of the alleged father is such that he cannot have been the father, then it will be desirable that there should be a further sample of the three bloods taken and sent to another institute to obtain an independent check.
Your Lordships will not take me as expressing any opinion at all as to whether that is really a necessary precaution or not, but I think you will accept my view that a mere suggestion of this sort by eminent pathologists is enough to lead one to the conclusion that the first test by the approved person may be of a doubtful character. And if there has to be a second test, the trouble, expense and delay will be greatly increased. At present it is suggested that the cost of the test would be between £5 and £10. That is a serious matter to be considered in cases where both parties are, as is generally the case, impecunious and quite unable to pay that amount. Supposing the tests have to be taken again, you are going to double the cost. That is a serious consideration, for if there are a large number of tests in the year it is quite certain that the parties to these affiliation proceedings would be quite unable to pay the cost and it would be thrown on the public funds.
There is another consideration. It will be a new departure in our practice to make the public funds bear the cost of tests in what are, in fact, civil proceedings. Though I have no doubt Parliament could do it if it thought fit, it ought to hesitate some time before throwing upon public funds the cost of ascertaining whether a defendant ought or ought not to pay the sum ordered to be paid by the court until the infant is sixteen years of age. Then I want to support, not the whole of what the noble Lord, Lord Atkin, said, but his doubt as to whether there may not be quite a number of girls in this class—girls who are unfortunate enough to bring these proceedings—who will strongly object to blood being taken,

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not perhaps from themselves, but from their babies. I am afraid it will take some time before people of this class can be persuaded that it is nothing at all to have your blood taken from you by some doctor who, after all, will not be anything but an ordinary practitioner, because the blood is not going to be taken by the approved authority but by some ordinary medical man. I believe there are still medical men who are not very convinced of the virtue of antiseptic or aseptic treatment. However, that may be, it may be found there is a species of conscientious objectors to having blood tests taken from their babies.
These are matters which have got to be considered. If it was true that the tests would be conclusive in a great number of cases, all these difficulties might disappear. When we know it is only in one-third of the really genuinely contested cases that we are going to get a useful result, it may well be that the matter ought to be very carefully considered by a Select Committee. One thing more I should like to say. The Lord Chancellor has to make rules governing the matters referred to in Clause 5 of the Bill. It will not be an easy job for the Lord Chancellor to do that because your Lordships will observe there are difficulties regarding procedure in connection with the matter which in some cases would be difficult to get over. In one case the defendant has asked for tests to be taken, and the court is bound to order the tests. There is no doctor there, of course, at the time. The girl with the baby and the man have got to go to some professional man in, I suppose, the town where the proceedings are being conducted to have the blood samples taken. You have got to be very sure that it is the right woman, the right baby, and the right man who go there. The question of identity is by no means so easy as you might think when you have to consider problems of this character. One of the subjects which the Lord Chancellor will have to consider is what procedure is to be adopted in order that you do get the right man, woman, and child. If the man knows that he is guilty it is exceedingly likely that he might send a friend to undergo this very
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trifling operation. At any rate, that is a thing which has to be guarded against.
Then, when the blood has been extracted by some person who is a medical practitioner, it has to be sent up, properly marked and labelled, to the skilled pathologists who are going to make the necessary examination. I am told there are perhaps four or five places where that can be done by the most eminent people. As has been already pointed out, it is not quite clear that pathologists are all agreed. It is matters of that kind which have to be considered by a Select Committee—namely, the question of the number of cases in which the test would be useful, the risk that sometimes mistakes may be made, the identity of the persons from whom the blood is taken, the total cost which may be thrown on public funds. These are matters on which a good deal of light will be thrown if the matter goes before a Select Committee, as the noble Lord suggests. In these circumstances, on behalf of the Government, I am quite willing that there should be a Second Reading. I do not pledge the Government to any particular view when we have light thrown upon the matter as the result of the inquiries of the Select Committee, and I can only say that my doubts are in no way due to any view as to what Lord Dawson of Penn has said in the matter, because I am perfectly willing to accept his scientific view as completely reliable.
On Question, Bill read 2a.
LORD MERTHYR: My Lords, I beg to move that this Bill be referred to a Select Committee of your Lordships' House.
Moved, That the Bill be referred to a Select Committee.—(Lord Merthyr.)
On Question, Motion agreed to, and ordered accordingly.

BUSINESS OF THE HOUSE.
THE FIRST LORD OF THE ADMIRALTY (EARL STANHOPE): My Lords, as there is no public business before the House to-morrow other than judicial business, I propose that we should next meet on Tuesday, February 14.
House adjourned at ten minutes before six o'clock.