THE

JOURNAL OF JURISPRUDENCE.

ON THE EFFECT OF THE NEW LAW OF EVIDENCE ON CASES OF FILIATION.

IN continuation of the article on "Witness Bearing" in our June Number, we now especially call public attention to the effect of the recent law, permitting parties to be witnesses in their own cause, as operating on cases of filiation and aliment of bastards.

The Act 16 Vict., c. 20, declared as exceptions to the admission of parties as witnesses for themselves, "actions in consequence of adultery, or for dissolving any marriage or breach of promise of marriage, or in any action of declarator of marriage, or of nullity of marriage, putting to silence, legitimacy or bastardy, or in any action of adherence or separation."

The obvious intention of these exceptions was to guard against the great danger of perjury in cases where, not a mere simple question of debt is at issue, and at once and for ever settled, but where there is involved questions of status affecting the interests of third parties for generations to come.

The Court have carried the reason beyond the mere letter of the law, by excluding a party as a witness in a declarator under an entail, where the question of legitimacy arose only incidentally.— (14th Feb. 1855, Sandilands.)

But, of all classes of actions, where the reason for such exclusion exists most strongly, is the increasingly great class of cases of filiation and aliment of bastards. In the first place, the very fact which the woman admits, in coming into Court, and also alleges against the defender, implies a breach of morality on both sides, to cover or extenuate which, may naturally lead to a second infraction of the code of morals. In the next place, there are, on the part of the pursuer, a strong temptation if lax in her favours, to select as victim, the man most affluent and likely to be decerned to pay the highest rate of aliment, and to have ability to implement the decree when given. The defender, on the other hand, may have other and

VOL. I.—NO. IX. SEPTEMBER 1857.

LLL

far graver reasons than mere pecuniary interests, involving family and social connections of an extensive range.

In no class of cases has the change of the law made a more radical alteration in the nature of the proceedings, and in the ultimate success of these actions.

We shall contrast the proceedings in this class of actions, previous and subsequent to the change of the law of evidence.

In former practice, the first step in evidence was, the judicial examination of the defender. This was an important article of proof, but it militated much against the defender. The examination was not on oath, so every thing was taken as evidence against the defender, but nothing for him unless forming an intrinsic qualification of statements. Statements made in the declaration, and contradicted in evidence, were considered most prejudicial to the defender, and even mere oblivion on recent facts were prejudicial to the defender's case. (14th Nov. 1821, Binny.)

The Lord Justice-Clerk (Hope) more than once reprobated this step of procedure. Not so much because of the use of the privilege, but its abuse, in so far as the defender was called on to undergo this ordeal before any statement of facts was placed on record. (June 15, 1842, Wilson; June 2, 1843, Kirkpatrick.) But Lord Medwyn dissented from the reflections on judicial declarations, and strongly held to the expediency of such procedure-(June 18, 1815, Shankland; Nov. 26, 1845, Patrick.)

The legislature did not countenance the doubts of the Court, in so far that in the Act it is declared, that "nothing herein contained shall alter or affect the authority or practice of the Courts in Scotland as to judicial examination.

The declaration of the defender having been taken, either before or after the record was made up, the pursuer entered on her proof. She had the double opportunity of affirming her own statements and contradicting those of her opponent. She was only bound to adduce a half proof or semiplena. There were several definitions of this amount of evidence. Lord President Blair held "reasonable belief" to be the test of admission of the pursuer's oath.-(14th June 1809, Craig.) Lord Gillies defined it "as something less than proof and more than suspicion"-(9th June 1831, M'Crae.) Lord Robertson said it must afford "a reasonable suspicion"-(8th July 1826, Hutchison.) Lord M'Kenzie held "the probability that the defender and no other was the father, sufficient to warrant the oath in supplement"-(17th January 1835, Glendinning.)

The defender next produced any evidence of a negative character, and (as is still the rule) if he averred specific facts, he was entitled to lead evidence as to the pursuer's equivalent familiarities with other men named in the record. This might greatly weaken the pursuer's

But although the defender was successful in proving that the pursuer was general in her favours, yet, if there was a sufficient case against the defender- as the child must have a father, and only

one,—it was left to the oath of the lady, as the prerogative of her sex, to make her selection, and cut, if not untie, the Gordian knot, by fixing the paternity on her favourite-the defender.

In the proof, the defender could not formerly be examined as a witness, whilst his declaration stood in the position above described as evidence against but never for him. The pursuer, as the mother, was a necessary witness, and so could not be called on to undergo judicial examination similar to that inflicted on the defender.

The proofs being finished on both sides, the Court decided whether the evidence amounted to a semiplena. If it did, the pursuer's oath in supplement was admitted to complete the proof; if the proof did not go the length, her oath was not allowed. The rules for ascertaining what was a semiplena, were so subtle, that conflicting decisions were often given in such cases, and the Court of Session frequently differed from the local judge, the more especially from justices of the peace, who unfortunately have a jurisdiction in this important class of cases, from which it is truly wonderful they have not long ere now been relieved, as wholly unsuited for their cognisance.

In giving the oath in supplement, the woman had great advantages. Though a witness, she had, as a party, right to be present at the examination of her other witnesses, or to read the record of averments and evidence. She had then only to confirm and corroborate the testimony, and add the fact, privative to her knowledge, that the defender, and none other, was the true father of her child. It was, in the very rare case, when she overshot the mark and contradicted her witnesses, that she could ultimately failwhere the two half proofs, when put together, did not dovetail into the concrete, and so make one whole. Such was the following case, where the woman, after being admitted to her oath in supplement, was cast on her oath in supporting her case,-7th July 1837, M'Naughton, where the Court, in respect, that instead of supporting and confirming the semiplena probatio, it directly controverted the same, assoilzied the defender. The only other reported cases where such an untoward result was realized, were 9th June 1838, Grey; and 28th June 1848, Folley.

The change of the law of evidence has worked a great change in the whole procedure in this class of cases, and especially in their result.

The declaration of the defender is now seldom asked, because that generally he is the first witness called in defence. But some judicious agents still obtain an order on the defender to be judicially examined, which declaration, as it must be taken previous to entering on the proof, precludes him from the advantage of squaring his statements to suit the testimony of the witnesses, which, when placed on oath after the pursuer's proof is concluded, he has an opportunity of doing.

According to the rule adopted in most courts, that parties who

are proposed to be witnesses, must be treated as such, the pursuer must either be first examined or remain excluded until her other witnesses have given their evidence. In this way she is tempted to defend or apologize for her lapse, and to make her case much stronger than her witnesses can support. This done, her witnesses follow to corroborate her, instead of, as under the former practice, when she came in at the close to support them. The witnesses, wanting her motives, fall far short of her evidence, and it is very fortunate for her if they do not actually contradict her in many important points.

Then comes the defender's proof; and as he cannot be excluded from Court whilst the pursuer or her witnesses are under examination, he is quite prepared, on every point, to combat the pursuer's facts. Then follows his witnesses, who are chiefly directed to attack the character of the woman, and to add to the number of her paramours. It is now no uncommon thing to find the woman swearing that she had often connection with the defender A, and that he is the father of her child, and solemnly deponing that she never had connection with B; then A, the defender, as solemnly swears that he had neither, at the particular times sworn to by the pursuer, nor at any time, connection with her; whilst B comes forward ultroneously, to swear that he had frequent connection with the pursuer, and at times too, precisely coinciding to the conception of the child.

Such deliberate and wide spread profligacy and perjury are heartsickening, and loudly demand a speedy remedy. It is in no matter of opinion, or on facts on which persons might conscientiously fall into mistake. There is no doubting but that deliberate perjury has been committed on one side or the other. But on which, is a question of great difficulty, and hence there has never yet been a prosecution for perjury in this prolific hot-bed of that crime.

The effect on the encrease of this species of vice is most startling. We have before us a return of births in a county town of 20,000 inhabitants; and in the year 1856, of 694 births, 58, or above 8 per cent., were registered as illegitimate, whilst doubtless many more were still-born or died without registration. Again, the Established session records alone of the same town shows in 1854, eight persons rebuked for fornication, and seven in 1855; and nine duplicate culprits rebuked for antenuptial fornication in 1854, whilst the number encreased to twelve in 1855. This is instructive, as showing how the vice has extended to persons who had a religious profession and were in communion with a Christian church. The last fact, too, establishes a wide spread understanding amongst certain classes, that, if there be no practical results of the criminal intercourse, there is to be no further obligation on the man. But if there be fruit of the womb, then the sacred ceremony of marriage is to be degraded into a cover of sin. From this prevailing understanding, it will easily appear how increased is the motive of the woman to make good her case, as of the defender to defeat its success; and there is also the great

hazard that such marriages of convenience, originating in lust, not love, and perfected as matter of pecuniary calculation, must prove the reverse of happy either to the spouses or their offspring.

The encrease of this class of cases since the new law of evidence, will be testified by all connected with our local courts. We have a report from the sheriff court of the county in which is situated the town, certain statements of which we have above given. In 1855 the cases of this nature were 46, but in 1856 they rose to 69, of which fifteen in the former year, and 19 in the latter, were resisted, and decrees of absolvitor to the extent of five in the first year and six in the second year, were pronounced in favour of the defender, being one third of the number.

Under the practice before the Law of Evidence Act, there were scarcely one case in ten which miscarried for lack of evidence, whereas now almost one-third of the cases defended result in the success of the alleged fathers, and the poor orphans are beggared for life, and a heavy burden imposed on the Poor Law Boards of the parishes of settlement, often with an abundant crop of law-suits to discover the devoted parish.

Every attentive observer of the times must be horrified with the increasing number of cases of child-murder which appear in our criminal calenders, where, from want of evidence, the minor plea of concealment of pregnancy is readily accepted, whilst there remains no moral doubt but that the unfortunate infant was sacrificed by the mother to save her the uncertain remedy of seeking to fix the paternity on the person to whose seduction she may have fallen a victim.

The subject is a serious one indeed, and must, sooner or later, force itself on the consideration of the country and the legislature. It is matter for inquiry, whether the policy which excluded from the privilege of parties being witnesses for themselves, declarators of legitimacy, does not apply with equal force to what may be called declarators of illegitimacy. We venture humbly to advise, that a return to the former law of semiplena and oath in supplement would be wise, and would afford every fair protection to the defender, whilst it admitted the woman to full justice. The impression of all who have had experience in the administration of justice will be found to be, that the woman generally is in the right, and has seldom any motive to father her child on any one but the true parent, while the defender has many concurring motives, in name and fame, and cash and character, to avoid the burden attempted to be placed upon him.