man's Bill in that year removed some part of this disqualification; and in 1851 the Legislature took the further step of allowing the parties to the suit to be examined as witnesses, with the exceptions of parties proceeding for adultery, and the parties to an action for breach of promise of marriage. These exceptions were now pronounced to be anomalous, and it was sought to get rid of them by this Bill. He knew that persons of great learning entertained con

that the only true remedy is that which I propose in this Bill. The Bill, therefore, consists of a single clause repealing the fourth section of the Act of 1851, and I had thought that the difficulty of the cases I have referred to would be met by a proviso that no person shall in any action or other proceeding be compelled to answer a question as to adultery; but, as I find this will not meet the case, and if your Lordships permit the second reading of the Bill, I will, before it goes into Committee, print ansiderable doubt as to the propriety of these Amendment to that proviso, to the effect that every person in such a suit shall be capable, but not compellable, to give evidence. I may mention that the learned Judge of the Divorce Court is most anxious to see this remedy introduced. It may, however, be objected that if you make a person competent to be a witness, but not compellable, and a party does not tender himself or herself as a witness, the inference is irresistible. But is that really an objection? The object of all evidence is the attainment of truth, and if the circumstances are such that one cannot help inferring guilt on his or her part, you attain the object for which you are seeking. After these few observations, your Lordships will see that I am obliged to separate this Bill from the other which stands in my name, because the provisions of this measure have reference not only to the Divorce Court, but also to cases brought before your Lordships; and there may also be cases in other courts where adultery may be put forward-so that the general law on the subject ought not to be confined to the Divorce Court. With these remarks, I beg to move that the Bill be now read a second time.

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

exceptions; but the judgment of the House of Commons had been pronounced upon the matter, for in the course of last Session his learned Friend Sir FitzRoy Kelly introduced a Bill into that House in which there were two clauses, by the first of which parties to any action for breach of promise of marriage were rendered competent to give evidence on behalf of either party; and by the second, in any suit or proceeding instituted in consequence of adultery any party was allowed, if he should think fit, to offer himself or herself as a witness on his or her own behalf; but in Committee on the Bill these clauses were after amendment negatived, and the Bill was withdrawn. Having carefully considered the subject he (Lord Chelmsford) was of opinion that it would be extremely dangerous to admit of any relaxation in the law in the direction proposed. It appeared from the statement of his noble and learned Friend (the Lord Chancellor) that amongst the benefits they derived from the Divorce Court they owed to it the introduction of an anomaly in the law of evidence

namely, that in a suit in that court for adultery the parties were precluded from giving evidence; but if the wife proceeded for a judicial separation upon the ground of cruelty and desertion, and the husband recriminated with a charge of adultery against her, all the parties might be witnesses. The present Bill proposed to get rid of this anomaly by saying that whether adultery were the immediate sub

LORD CHELMSFORD said, that notwithstanding his respect for the opinion of his noble and learned Friend, he could not bring himself to think that it was at all desirable that the law of evidence should be altered in the manner which he proposed. This was in form an unpre-ject of the suit or arose incidentally the tending Bill of only one clause; but whilst apparently a Bill of a purely legal character, it was one which involved questions of moral and social importance deserving the careful consideration of the House, and which their Lordships were as competent to decide as were those who were generally designated the Law Lords. Previous to 1843 no person could be examined as a witness who had any interest in the matter in litigation; but Lord DenThe Lord Chancellor

parties might be examined. His noble and learned Friend proposed that this power of giving evidence should be optional-that the parties, though competent, should not be compellable to give evidence. But he (Lord Chelmsford) thought that upon consideration his noble and learned Friend would be of opinion that practically there would be no difference between its being compulsory or optional, and that in every case it would be found that the "may" would

1490 in fact be the "must.' The evidence in | dence was not given. However, the wife such cases was generally circumstantial, did appear, and swore that no adultery and in some cases it was of a very slight had taken place. He certainly had great description. In one well known case it was misgivings in the case, and was very reso slight that the jury found for the defend-luctant to advise any course; but it was ant; but suppose the noble defendant in his duty to point out the consequence of that case had been allowed to give evidence? such evidence not being given; and the If he had not appeared what would the result was that the wife came and swore as jury have concluded? They would have the defendant had sworn, and an acquittal said, "Although the evidence is slight, yet took place. The Divorce Court was estabthere are two witnesses who could tell us lished shortly afterwards, and the husband whether the facts charged are true or not. sued for a divorce in that Court; the adulIf they refuse to appear and give us the tery was clearly proved, a decree for a information that they alone can give we divorce was pronounced, and almost the must deal with the case upon the pre- first act of his (Lord Chelmsford's) official sumption that if they did appear the facts life was to remove from the commission of would be established against them." His the peace the name of the co-respondent noble and learned Friend asked where was in those proceedings. If they passed this the evil in such a case?-for that if the Bill and took away the exception, they parties were innocent they would appear and would hold out to a guilty person the prove their innocence, and that if guilty greatest possible temptation to commit they would shrink from appearing before the perjury. At present the scandal attending jury, and the jury would then arrive at a the proceedings of the Divorce Court was just and right conclusion in their absence. very great; but if the husband and wife But in such a case, had my noble and and a co-respondent were called and allearned Friend considered the temptation lowed to give evidence in suits of this to perjury that would follow the removal description that scandal would most unof the existing exception? They must re- questionably be aggravated beyond all member that the character, position, and imagination. The history of the lives of social existence of the wife depended on the these persons, one and all, would be exissue of the cause; and that having broken posed to the torture of cross-examination one Commandment, she would scarcely and, in the end, their Lordships would hesitate to break another where so much have deeply to regret that any relaxation was at stake by bearing false witness? in the law of evidence had been allowed to And would not the man consider it a point take place. As to the other question, in of honour to save the wife from the shame respect to actions for breach of promise, and misery to which he had brought her, a mere verbal promise was sufficient to esby adding to his sin the crime of perjury? tablish a case, although the evidence geneVery shortly before he retired from the rally given consisted of written corresponbar a case occurred within his own profes- dence and the testimony of friends; but sional experience which illustrated this dan- if the plaintiff herself were allowed to give ger. An action for criminal conversation evidence, it was evident that mere expreswas brought against a magistrate in the sions of tenderness would frequently be country. A verdict for damages was given, misinterpreted, and that a verbal promise and on that the husband proceeded to the would be easily proved. It might be said Ecclesiastical Court and instituted proceed- that both the plaintiff and the defendant ings for a divorce à mensá et thoro. The would be admitted as witnesses; but the adulterer, or alleged adulterer, appeared sympathy would be entirely with the woand made an affidavit that no adultery had man, and in ninety-nine cases out of a taken place. An indictment for perjury hundred she would gain the verdict. A followed, and he had the misfortune to de- remarkable case occurred some years ago fend the prisoner. How the defence was in which the defendant was a Member of to be conducted became an important con- their Lordships' House. An action for sideration, and it was clear to him, as the breach of promise of marriage was brought, prisoner's counsel, that there was no chance and for the purpose of establishing her of an acquittal unless the prisoner could case, the lady, who was very clever, fabriproduce the wife herself to corroborate cated letters from the defendant to herself, him on oath that no adultery had taken and also wrote a great number of anonyplace. He felt it his duty to point out the mous letters to the defendant, which she consequences that must ensue if such evi- very ingeniously contrived to have put into

1

the Bill be read a second time that day six months.

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

LORD TAUNTON said, the subject was one which did not affect lawyers only, but

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

the post by various friends who were called as witnesses to establish that there had been a correspondence between the parties. As it appeared before the jury that she had written letters to him, and as there was evidence that the letters supposed to have been written by him were in his handwriting, it would have been difficult to persuade the jury that there had been no correspon-involved questions of public morals and dence between them. However four of her anonymous letters had fortunately been preserved, and when they were put in evidence the case was disposed of in an instant. Now, if this designing woman had been allowed to give evidence of the promise she would not have hesitated to swear that it had been made, and the noble defendant would probably have had to pay heavy damages. In actions of seduction the action was brought by the father or mother, or some relation of the girl, upon the fanciful ground that the girl was a servant, and that her services had been lost. Should this Bill pass, these would most of them be turned into actions for breach of promise of marriage; because when taxed with her frailty the girl would say that she had yielded only upon a promise of marriage, and her friends would then force her to bring an action to vindicate her character. Juries, who were always disposed in such actions to sympathize with the plaintiff, and to look with severity on the conduct of the man, would be easily disposed to find against him. He had already told their Lordships that a verbal promise was sufficient to support an action for breach of promise of marriage. In a Bill introduced in the House of Commons last year it was proposed that no such promise should be enforced unless it were in writing; but the Bill did not pass into law. It was singular that the Statute of Frauds enacted that any promise made in consideration of marriage should not be binding unless it were in writing; and yet it had been held that mutual mises to marry were not within the statute. If the proposed relaxation took place, he thought that they should at all events require that in all such cases the promise should be in writing, and that no verdict should be given upon the unsupported evidence of the woman bringing the action. But no alteration in the law as it now stood was in his opinion necessary; and, entertaining a strong feeling against the present Bill, if with no other effect than placing his opinions upon record, he felt himself compelled to move, as an Amendment, that Lord Chelmsford

pro

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

:

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

CONTENTS.

Cranworth, L. (L. Chan- Peterborough, Bp.
cellor.)

York, Archp.

Cleveland, D.

Saint Albans, D.
Somerset, D.

Camden, M,

Airlie, E.
Albemarle, E.
Caithness, E.
Clarendon, E.
De Grey, E.
Ducie, E.
Minto, E.

Boyle, L. (E. Cork and
Orrery.)

Clandeboye, L. (L. Duf-
ferin and Claneboye.)
Foley, L. [Teller.]
Llanover, L.
Monson, L.

Mont Eagle, L. (M.
Sligo.)
Mostyn, L.

Northbrook, L.

Overstone, L.

Ponsonby, L. (E. Bess

borough.) [Teller.]

Romilly, L.

Stanley of Alderley, L.

Stratheden, L.

Sundridge, L.

(D.

Sidney, V.

Argyll.)

far more satisfactory. It is felt that three months is not a sufficient time to allow for the possible coming to light of all the facts. bearing upon a case, and the clause therefore enacts that no decree nisi shall become absolute till after six months.

Bill read 2, and committed to a Com

Hunsdon, L. (V. Falk-mittee of the Whole House To-morrow.

THE EARL OF BELMORE said, that whilst he quite agreed with the spirit of the Amendment of his noble Friend, he thought it would be better not to insert it in a Bill of this sort, which did not profess to deal with details but gave powers to execute them to the Lord Lieutenant and Privy Council of Ireland. The Lord Lieutenant had appointed a committee, of which Lord Naas was chairman, to inquire into the subject of the cattle plague, and although in the report of that committee this matter (of the drovers) had not been touched on, it had been considered. He learnt that a sub-committee of that body had waited on the officials of the steamboat companies in Dublin on the subject, and that the companies were willing to do all they could in the matter. They would refuse to convey any drovers who had free passes, but they could not by law refuse to take any who offered to pay their fares as ordinary passengers. There would be practical difficulties in the way, and he thought it best to leave the matter in the hands of the Lord Lieutenant and Privy Council.

EARL STANHOPE wished to know why a different mode of charging the compensation for slaughtered cattle was adopted in Ireland and in England?

EARL GRANVILLE was understood to say that the provisions of the present Bill had been adopted in deference to the general wish of those who took an interest in the subject in Ireland.

Motion agreed to; Bill read 2o accordingly Standing Orders Nos. 37 and 38, considered (according to Order), and dispensed with; Committee negatived; Bill read 3; an Amendment moved, and (by Leave of the House) withdrawn; Bill passed.

ECCLESIASTICAL COMMISSION-
CONVERSION OF CURACIES INTO

RECTORIES.-QUESTION.

THE DUKE OF MARLBOROUGH asked the Lord President of the Council, in the absence of the First Lord of the Treasury, The reason why the publication in The London Gazette of the instruments passed by the Ecclesiastical Commissioners under their common seal for converting curacies into rectories, under Section 9 of 28 & 29 Vict. c. 42, has not been sanctioned by the Treasury? One of the clauses enabled incumbents to assume the title of rectors on a certain portion of tithe being transferred to them; power was given

Lord Dunsany

enabling rectors to make the sale, the assent of the Ecclesiastical Commissioners being required; and when all this was complete the designation of the clergyman might be changed from curate to rector or vicar, according to the nature of the tithe transferred. This was a matter of great importance to many of the clergy, who much coveted this designation of rector or vicar. He had made inquiries on this subject of his noble Friend (the Earl of Chichester) as to what had been done since the passing of the Act; and his noble Friend told him that a large number of applications had been made to sanction agreements under authority of the Act; that the Ecclesiastical Commissioners had sanctioned them; that the agreements had been forwarded for insertion in The London Gazette, according to the Act; and that he was informed that the reason why they had not appeared was that they could not be published without the sanction of the Treasury. He was further informed by his noble Friend that application had been made to the Treasury on the subject, but that no answer had been returned.

EARL GRANVILLE was understood to say that the application had unfortunately been overlooked, but that the necessary instruction for the insertion of the Orders in The London Gazette had been given upon the subject that day.

House adjourned at half past Six o'clock, till To-morrow, half past Ten o'clock.

HOUSE OF COMMONS,

Monday, March 5, 1866.