EVIDENCE IN DIVORCE CASES.
SIR JAMES WILDE'S proposal,—for it is his, though he is not a member of the Legislature,—to admit the evidence of prin- cipals before the Divorce Court, has been postponed for another session by a majority of one. Twenty-eight Peers voted on Monday on each side, and the Lord Chancellor, who introduced the Bill, was compelled, on the just principle that equal votes show the need of further discussion, to give his casting vote against a measure he himself had helped to prepare. The Bill is, however, only postponed, for no measure in which the weight of argument is so completely on the affirmative side can be rejected for any length of time. It would not have failed even this session, had it been discussed previously by the press, for the press would have exposed the odd fallacy which has produced the vote of the majority—the underlying belief that the lawyers were on one side and the " men of the world " on the other. They would have shown, as we shall now endeavour to do, that the " men of the world " were in error on their own theory of life, at least if we are to understand by " men of the world" not roués, not deliberate woman-hunters, everywhere a scarce class, but men who, honourable in thought, upright in the ordinary affairs of life, and kindly in disposition, still on many sexual subjects obey a law laxer than the one they openly acknowledge. At present the law of evidence stands thus. No person accused of adultery or breach of promise of marriage can, under an Act passed in 1843, be examined as to his offence. The rule has nothing to do with the ordinary law which forbids questions leading to self-crimination, for neither adultery nor seduction are punishable except by civil process, but is a statutory exemption in the Act allowing principals to be ques- tioned in civil suits. The exemption produces this singular series of oppressions. A wife, it may be a flighty girl given to admira- tion, excites her husband's jealousy, and he brings a suit for divorce. In evidence he produces a mass of instances of flightiness, coquetry, indiscretion, or what not, which are to his mind—we speak of honest cases—proof, but which, could the wife speak, could be made to bear a very different interpretation. There is evidence, not by any means clear, of actual guilt, which the jury would pro- bably reject, but which in the presence of a heap of corroborating facts they are disposed to accept, and the wife who could disprove the latter is prevented by law from appearing in the witness-box. Again, the husband brings a charge of adultery, which the wife, were she allowed, could meet by -a counter charge of cruelty or desertion—this variety of case occurs every day—but people do not usually torture their wives in public, and as her evidence is essential, she is powerless. So is the -husband in a similar case. So is the wife, and this is the most frequent case of all— when she has instituted a suit for divorce on the ground of adultery coupled with cruelty or desertion. She must prove both under the English law, which does not recognize adultery in the man as sufficient ground for divorce, but in nine cases out of ten her own evidence is required to prove the second, and she is powerless, or reduced to use that wretched half-hearsay evidence as to what she had told her friends which makes such suits so exceedingly unsatisfactory. In all these cases, and many more, the presence of the principal in the witness-box would tend directly not only to truth and justice, but to the carrying out of a law which " men of the world," of all others, support. Lord Cranworth proposed to allow that presence whenever either principal was willing, and was defeated on this single ground. It is neither fair, it is argued, nor in the interests of morality, to place a man or woman under the alternative of either committing perjury, or committing what either is, or is believed to be, a foul act of social treachery. As Lord Denman said, we cannot "place any one in such a position that he or she must either commit perjury or betray the partner in his or her guilt." More especially in the case of the woman is it not just to ask her for a reply which in fact, though not in legal theory, is as self-criminating as if she were asked whether she had committed a murder ?
Now though we should probably write of adultery as Lord Denman would not have done, as being nine times out of ten one
of the most treacherous of crimes, and involving more systematic and long continued lying than almost any other offence, we are not indifferent to this argument. There is a truth below the feeling which prompts the proverb about the man who " kisses and tells " which deserves some reverence, and we can quite imagine cir- cumstances under which the man who tells the truth is guilty of a baser lie than if in Court he lied. Moreover, we admit to the full that nothing can in all such matters be more demoralizing than to base law on principles higher than those the nation accepts—to pit the reverence for truth against the regard for social honour—and we should strongly oppose any compulsion either on adulterer or seducer to appear in the witness-box. We should oppose it, if for no other reason then for this, that while the man in confessing his guilt was only subjecting himself to an annoyance, he was sentencing his paramour, at worst only equally guilty, to a punishment ten times heavier than any the law can inflict. But the change in the law suggested by Lord Cranworth does not do any one of the things to which we all alike object. It simply permits either party, if wronged by the want of his or her own evidence, to appear, and tell what appears to them to be the truth. Of course if guilty they would not appear, and perjury, being without motive, would very seldom occur, at least as seldom as in any other class of cases. The only new form of it we should dread would be a husband under collusion with his wife appearing to admit his own adultery, a course which in a very recent case of collusion would in all probability have been taken. The penalty on a man, notoriously perhaps "fast," for such an admission is comparatively so slight that the expedient might be adopted, but then it is not morally worse than the evil, already frequent in such suits, of husbands committing adultery in order to be free of their wives. That is the master danger of the Protestant system of divorce, and is neither increased nor diminished by the new pro- posal.
Bat it is said the principal, if allowed to appear, is virtually compelled to appear. The jury will never believe that if he or she could have blankly denied the charge, he or she would not have taken the opportunity of doing it. That is only partly true, for in the woman's case counsel would argue that defendant, though innocent, could not bear examination in a public Court; and in the man's, that the questions might betray facts which, though not bearing on the case, he was bound to conceal. Moreover, it is erroneous, as we have said, to assume that the husband always wants to deny the charge, many a man being willing to pay the price of a social stigma for his freedom, and juries are strict when they suspect even half conscious collusion. But granting the difficulty to the full extent, to what does it amount? That the jury—why ever the Legislature sanctioned a jury in such cases nobody not a typical Briton can comprehend—has one clue more to the truth. Nobody is made- to perjure himself, or betray an illicit confidence, or do anything else except stay away, as he or she would have done before. His absence has, or may seem to have, a meaning, but surely it is not the object of the Legislature to throw unnecessary obstacles in the way of a judicial process for arriving at a particular truth. And that is all that the present exemption now does, all it can do, be it made ever so rigid. The jury being empanelled to try whether adultery has been committed, are under the law as it stands a little less likely to be right than they would be under Lord Cranworth's system, and in a few cases are nearly certain to commit a gross injustice— to brand an innocent woman as an adulteress. There being from the permissive character of the Bill nobody to protect, is it worth while to retain such an occasional cause of misery ?
The effect of the change in cases of breach of promise is a little different, and we do not quite see why the two should have been coupled together. There are immodest women in the world, and women who being immodest try to seem modest, and consequently there is force in Lord Chelmsford's objection that every girl who had an unaccountable baby would if admitted into the box swear that its father had made her a promise of marriage. At present she must prove that fact by the evidence of others. That would be a very serious danger indeed, particularly among the lower orders and the class of women who permit such actions to be brought on their behalf. Amelia Ropers will if necessary swear very hard indeed. But then it must not be forgotten that in all such cases the beat system can but produce a minimum of injustice. It may very often happen, and does very often happen, that a girl under such circumstances has no evidence to produce except her own word, that her lover has avoided letters, or they have been close neigh- bours, and no third party has known anything of their interviews. At present she actually suffers the whole injury, and much more than the whole injury, which he under such circumstances would risk. He also can get into the box and deny the promise empha- tically, and though it is true that, owing to the practice of sub- mitting such cases to juries, and allowing counsel to appeal to their feelings instead of the judge's reason, the chances are strongly on the woman's side, that arises from the whole system, and not from any suggested alteration in the law. There is one argument indeed against the woman's evidence under such circumstances to which we attach weight, but there is only one. There is no doubt that among the lower and even the middling classes, the woman who makes a slip under promise of marriage, though sometimes cast off as utterly as if she had none, is regarded in a very different moral light, treated with very far greater leniency and forbearance. She enters the witness-box therefore under a temptation to per- jure herself of the most terrible kind—a temptation heavier than any payment, or indeed any form of reward, being the temptation of self-defence on a matter as important as life. That is an argu- ment of meaning, and on the whole, until our law of seduction is revised throughout—it is just now absolutely and even laughably absurd—it might be well to let the admission of principals as witnesses in cases of breach of promise wait awhile, but there is no such objection in the Divorce Court. There the existing pro- hibition simply debars the wife from proving cruelty or establish- ing innocence, and is defensible only on grounds which would restore the old practice of considering marriage absolutely in- dissoluble—a divine ordinance to be repealed only by an Act of Parliament.