THE JUDGE ORDINARY ON EVIDENCE. T HERE are few things more
curious than the vitality of a bugbear. It is very hard to impress the public imagi- nation with a new terror, but when it has once got a firm grasp of men's minds it retains possession long after all real cause for dread has ceased. The power of Spain, the power of the Crown, standing armies, and the Pope, have all been the source of notable instances of this persistence in fixed grooves of thought. It is so much easier to develop the thoughts of some one else than to think for oneself, so much harder to make men open their eyes to a new truth than to push an old one to extremes. Nor does this error lurk only in our fears,—it equally predominates in our hopes. It pre- vents reformers from seeing the limits which nature has set to the application of their principles, and makes them almost justify Mr. Matthew Arnold's lofty sneer at "the unelastic pedantry of theorizing liberalism." Because alterations of the law in a certain direction have answered hitherto, there- fore they must always answer, however far they are carried.
This is the fallacy which gives some colour of reason to the favourite Tory maxim of prineipiis (kaki, and we are disposed to think that it has in all ages been the prevailing fault of jurists. A principle is nothing to them unless they can apply it indis- acriminately to everything. Certainly Lord Westbury has better claims than any of the law lords to be regarded as a jurist, and Sir James Wilde was popularly supposed to owe his place in the Divorce Court to a reputation for similar ac- complishments, but both are amenable to the same charge. They are apt to ride a theory to death. The Chancellor's errors of this kind we have had to point out more than once during the past session ; Sir James Wilde has bequeathed us a similar crotchet as food for thought during the recess.
The occasion which set Sir James theorizing may be Very shortly stated. Admiral Codrington accuses his wife of un- faithfulness, and in compliance with an order of Court he specified three several occasions on which he charged her with having forgotten her duty as a wife. At the trial the Admiral called a Mrs. Watson, who quite unexpectedly testified that Mrs. Codrington had, under the seal of secrecy, confessed to her a fourth act of adultery. Upon this the respondent's counsel declared themselves unable to proceed. They were completely taken by surprise, and had no materials on which even to cross-examine Mrs. Watson as to this alleged con- fession. They therefore asked for an adjournment of the trial, as if they were compelled to proceed, the only course open to them would be to submit to a decree, and move next term for a new trial. The opportunity was a very tempting one. It was the last case in the paper, and all men are babbling of green fields. Some of the counsel were wanted on circuit. It was not possible to deny that the petitioner's other evidence was rather weak, and that his case depended chiefly on this witness's credibility. So the adjournment was granted, and probably it was the best course to take, for it must be admitted that a new trial could scarcely have been refused. But the Judge Ordinary was pleased in addition to remark that this case afforded a striking proof of the evil of excluding the parties to a divorce suit from the witness-box.
We think this about as gratuitous a crotchet as the theory of the same judge as to the advantage to children of being educated under Mr. Hopley's fatherly eye. It may be de- sirable to examine the parties to a divorce suit, or, as we venture to think, it may not. But assuredly the only thing which the Codrington case proves is that, if a witness keeps a material part of her evidence a profound secret from every- body till after she is in, the box, it will lead to manifest inconvenience. So far as the respondent was compelled to meet the petitioner's case by the evidence of third persons only, and to abstain from pledging her own oath to its false- hood, she was simply in the position of every other respondent, every other petitioner, and every other co-respondent, who ever entered the Court. What was peculiar in her case was that she had to meet a charge of which she had never heard before on the spur of the moment. It is difficult to see how this affects the question whether she ought or ought not to be examined at all.
The old theory was that no value was to be attached to the evidence of any person who had the smallest interest in the result of a cause. This was simply a libel on human nature, and when interest was made an objection only to the credi- bility of a witness, and not to his admissibility, the reform was an unmixed benefit. The next great step was to admit the parties to an ordinary suit to give evidence for themselves. There is no question that this also was a beneficial change, but it was not quite an unmixed good. It has led, and does lead, to a good deal of absolute perjury, and to still more of what must be called very highly-coloured evidence. But the advantages of the change by common consent immeasurably outweigh the disadvantages. In most cases mere exagge- ration or extenuation of facts can be seen through, and those men happily are after all not numerous who will commit direct perjury for a mere pecuniary gain. But the law still refuses to admit the evidence of a person who is charged with a crime, and this for the simple reason that it is useless. A prisoner cannot be expected to admit his guilt. His denial of it therefore is entitled to no weight, while, on the other hand, his keeping out of the box would be almost conclusive against him. By not giving evidence he would convict him- self, by giving it he might convict and could not acquit himself.
Now, how does the position of a woman charged with adul- tery differ from the case of a criminal. It is true that she is not a "prisoner," but a "respondent," and that the only penalty to which she is exposed is utter ruin and dishonour, loss of station, of friends, and it may be of children. But what criminal has stronger motives for denying the charge against him than she has? It has indeed been proposed to introduce the system of interrogating prisoners, but this would be compulsory, and rests on the undeniable position that if a man who has committed a crime can be made to con- fess his guilt, there is no reason why he should not be. Is there any one who would be willing to apply this principle to charges of adultery ? And yet let it be remembered that to make a respondent, or indeed a defendant in a criminal suit, an admissible witness is in effect to do this. If she can go into the box, she must. To stay out of it, to enter it and refuse to answer, are alike damning. The respondent's denial of the charge would become a mere form— as more a form as in the old action of cries. con. was the de- fendant's affidavit of innocence on a motion for a new trial. Ile could not succeed without it, but it never had the slightest weight with the judges, who constantly refused new trials in spite of the oath of men of the highest rank, and whose truth- fulness on ordinary occasions no one had ever doubted. We cannot help thinking that it is mere waste of time to listen to evidence which, inasmuch as it must be given in one way, is entirely worthless, and that to compel witnesses into the witness-box of whom probably more than one-half will have to commit perjury is something worse than a waste of time. The same reasoning equally applies to men where their character is at stake. In the majority of cases so low is their morality that they do not care to answer the accusation of adultery. Either the suit is undefended, or the husband only cares to refute the additional imputation of cruelty. But would any one give the slightest weight to a denial of in- continence by a clergyman or a Quaker ? The case of the alleged paramour is even still stronger. We know what he does in such cases. Not only do we know what he does when he is defendant in an action of crim. con., but we know what he does when the suspicion incidentally comes out in evidence. A jealous husband or a rival lover takes summary vengeance on the man whom he suspects, and the latter applies to the law for protection. Does he ever hesitate to deny the charge of adultery, even when he is obliged to admit circumstances which almost stultify his denial ? Who cannot recall a dozen such instances, where the police magistrate plainly intimated to the complainant that his thrashing served him right, and where every one blamed every part of his conduct except the perjury. Mr. Denman, in his defence of Queen Caroline, spoke of the taunt thrown out against him, that he might have called Bergami, as "a fiction of lawyers which common sense and natural feeling would reject." What would he have said if
it had been proposed to examine the Queen herself, not only to examine, but to cross-examine her, to entangle her in her own admissions, to extort answers by cunningly devised question;, to stretch her on a moral rack, and subject her to a torture which would be rightly called "the question ?" If the principle of honour among thieves, if the feeling which forbids men to kiss and tell, is sufficient to make perjury venial, who could blame it when it was dictated by the com- mon instinct of self-preservation. They seem to be curious reasoners who think that you cannot expect truth from an adulterer when it would criminate his accomplice, but that you may expect it from an adulteress when it would criminate herself. It follows that the evidence of persons exposed to such an accusation is absolutely valueless, and that to permit them to give it is, in fact, to ask a question which must be answered in one way. If they turn out to be innocent, it is a mockery ; if guilty, it is a scandal and a crime.
If law reformers are disposed to deal with the law of evidence, there is plenty for them to do without pushing the theory which leads us to get light from all possible quarters to the extravagant length of trying to get it from a quarter from which it cannot possibly be obtained. Let them turn their attention to the rule which excludes the evidence of persons who have no possible interest in the cause, simply because they do not believe that perjury will be punished after death; or to the rule which excludes from the box the parties to an action for breach of promise of marriage, whose interest in the matter is merely pecuniary. Nay, to come to humbler matters, let them amend the 22 and 23 Viet., c. 61, which lets a petitioner be examined to prove cruelty or desertion if she asks for a divorce, but not if she only asks for a judicial separation, and refuses to hear her on these points when she recriminates them in answer to a charge of adultery. But these are homely reforms which can hardly be set in a senti- mental light.
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