HC Deb 03 May 1854 vol 132 cc1197-209

Order for Second Reading read.

MR. BOWYER,

in moving the second reading of this Bill, said, it was divided into two parts. The first part abolished damages to be paid to the husband in actions for criminal conversation, and substituted in lieu a fine, to be paid to the Crown, by way of punishment for the offence. The other part of the Bill every other country adultery was punished gave the woman a right to be heard. as an offence, and it was argued that the With respect to this latter provision he law of England ought to be assimilated to bad heard no difference of opinion. It seemed to be founded on natural justices that the women, who was really the person on trail, should be allowed to appear, either to rebut the evidence offered, or to show, if she were guilty, that her guilt was not of so deep a character as might have been supposed if she had had no opportunity of exposing the real state of things. When the case was tried as one of damages, it was the interest, and sometimes the practice, of the defendant, to blacken as much as possible the character of the woman, in order to show that the husband was not greatly injured by the loss of her society. He would not, however, go at length into any argument on this subject. All persons appeared to be of one opinion, that it was an act of justice to the woman that she should be permitted to have an opportunity of defending herself—the same as every person charged with an offence was on principle allowed to do, and which even the Divine law required. He would now proceed to the question of damages. There was no law in any country in the world except in England which allowed an injury of this description to be paid for in money. It was argued that, as an assault and every other kind of injury were compensated for by money, there was no reason why an injury which dishonoured a family, disgraced and ruined a wife, and destroyed all domestic happiness, might not also be represented by money. But the unanimous voice of the Christian world had pronounced against that proposition. It was unnecessary for him to argue the point, as every hon. Member must feel that there could be no parallel between the case of an assault and of an injury of this deplorable nature. It must be revolting to every right-minded person that a pecuniary remedy for such an injury should exist. It was a remedy adopted merely because the practice of Parliament required that a verdict should be recorded against the defendant before the injured party could proceed to obtain a divorce a vinculo. That was the only reason why the law still tolerated the practice of making it a pecuniary question—a practice revolting at once to the most honourable and most sacred feelings of our nature. But the question had been raised, whether this ought not to be made altogether a criminal proceeding? There was no doubt that in every other country adultery was punished as an offence, and it was argued that the law of England ought to be assimilated to that of other countries. No doubt the question was one worthy of discussion, and, if a clause were proposed and adopted in Committee to make the offence a misde- meanor punishable by indictment, he should be ready to make the necessary changes in the Bill which that alteration required. But it had appeared to him more judicious not to propose, in a Bill of this nature, so great an alteration in the jurisprudence of the country. He thought it more desirable to consider what was the real evil to be remedied, and to meet that evil without going beyond what was really necessary, especially when, by doing so, you would be dealing with a branch of the law so important and so delicate as that of the law of marriage. Another objection had been made against a portion of the Bill to which he thought some weight did really attach. Cases might, no doubt, occur where the loss of the society of the wife might inflict pecuniary injury on the husband. For instance, property might be so settled that, by the loss of the society of the wife the husband might sustain a pecuniary injury. Again, a wife might have materially contributed to the maintenance of the family, and it was obvious that in that case, where the wife had been disgraced by committing the offence of adultery, a pecuniary loss must be sustained by the husband. He had considered this objection, and had consulted several learned friends upon it, and he and they were of opinion that the present Bill would not prevent remedy by civil action in such cases. This Bill enacted that the husband should not receive damages for the mere adultery of his wife; but if, in consequence of that adultery, the party suffered a pecuniary loss, he would then have his remedy by action on the case for consequential damages He believed that was the law. It might be doubtful, and, if so, it was very easy to set the point at rest in Committee. At all events, this was not an objection to the second reading of the Bill. He had been somewhat criticised for not having taken a wider range in this piece of legislation. He had been told he was only dealing with one point of the law in respect to the relation of husband and wife. He believed that in doing so he had acted most prudently. The law in reference to husband and wife was a matter of the greatest importance to society; he therefore thought it wiser to confine himself to an obvious point which demanded alteration, and to apply a remedy to what was defect in a judicial proceeding in which the wife was in reality on her trial, although she had no power to be heard. He therefore sought to give her that power, and, at the same time, to assimilate the law of England to the law of every other civilised country applicable to an injury of this kind, by enacting that it should not be dealt with as an offence that could be compensated for by money; but that it should be treated as an offence against society; and that all temptation on the part of the husband to seek to obtain money by the dishonour of his wife should be taken away. On these two points more particularly, therefore, he asked the House to read the Bill a second time. He would say one word with regard to the law of divorce. He knew he should be blamed for not dealing with that question, but he was peculiarly situated as a Roman Catholic, in reference to the law of divorce. The Roman Catholic Church held that marriage could not be dissolved under any circumstances whatever. That was also the common law of England, which held that a divorce a vinculo matrimonii could not he declared after the nuptial tie had been once made. It was only by the transcendant power of Parliament, which overruled the ecclesiastical and the common law, that a remedy was granted in particular instances. The law of divorce had been examined into by Commissioners of great eminence and learning, and one of those Commissioners, a sincere member of the Church of England, and a person distinguished for his industry and ability—Lord Redesdale—had recorded his opinion in the appendix to the Report of the Commission that marriage ought not to be dissolved, and that it could not be dissolved, thus supporting the doctrine which was held by the Church to which he (Mr. Bowyer) belonged. A question, therefore, of such great importance, and admitting as it did of such wide differences of opinion, was one which deserved the entire and separate consideration of the House, and one which ought not to be mixed up with the subject of the present Bill. He trusted that the House would give this Bill a full and fair consideration. The House ought not to forget that the Bill was one affecting not only the interests of the whole community generally, but one affecting the interests of one class of the community in particular, who had not seats in that House, and, therefore, whose rights and interests ought to be treated by the House with peculiar care and scrupulousness.

Motion made, and Question proposed, "That the Bill be now read a Second Time."

MR. COLLIER

said, he regretted that his attention had not been earlier called to the Bill, in order that he might have given his hon. Friend notice of the course which he intended to take; but this Bill certainly appeared to him to be one with which it was not desirable that the House should proceed any further, and he should, therefore, move that it be read a second time that day six months. He thought the most correct title of the Bill, according to what he believed would be its operation, would be "A Bill for the Encouragement of Criminal Conversation." It might or might not be desirable to encourage that species of intercourse, or to make it a criminal offence; but it seemed to him that the House ought to come to some distinct understanding whether adultery was to be made a criminal offence or not. If it was to be considered a criminal offence, then let it at once be declared to be a misdemeanor; but, as the Bill was now framed, it was not stated, and he found it impossible to discover, whether it was meant to make it a criminal offence or not. The first section of the Bill was of a most ambiguous character. It mixed up criminal and civil proceedings in a manner quite unknown to the present law. It enacted that a man might bring an action against another man for having seduced his wife, but that he should not obtain any damages; and it then went on to say that if the defendant was convicted, he might be adjudged to pay a fine to Her Majesty as the Court might think fit; but no power was given to indict the defendant. All that the injured party could do was to bring an action against him, by which he himself could get nothing. It was not difficult to see that such a law would deter many from bringing actions, and the consequence would be, that the offenders would be absolved from paying any damages or fine. But, assuming that the character of the offence should be regarded as criminal, then by the provisions of the Bill the man only would be treated as the offender, and not the woman. Now, he apprehended that if adultery was to be treated as a crime, both parties to the act should be deemed guilty. If they were to legislate criminally, it would be utterly impossible to discriminate between the two parties, the man and the woman. But, again, by the clause as worded, the defendant was only to be fined in case a verdict was found against him; so that he would have nothing to do but to let judg ment go by default, in order to escape a fine. But the anomalies of the Bill did not stop there. The defendant was to pay a fine at the discretion of the Court, but the Judge also was empowered to give costs to the defendant. This was extremely new in the history of our jurisprudence. He certainly had read of a case of crim. con. in which, by the eloquence of Mr. Erskine, a jury was induced to give 500l. damages to the defendant. Whether his hon. Friend contemplated the possibility of a defendant being so ill-used that he ought to have his costs he could not tell, but it was certainly a very novel provision of law. Among other things, the lady was to be allowed to intervene in the action, and certainly in a somewhat anomalous manner. She might appear in Court, but it was not said that she should be a party to the suit, nor that she should, by pleading, deny or confess her guilt, or state what was the issue she wished to raise. Now, all that was new. Since the time that oral pleadings had been abolished, it had always been deemed necessary that before a party came into court he should let the opposite party know what his case was, and whether he admitted or denied the allegations made against him. Now, he agreed with all the improvements that had been made in special pleading, but, certainly, before a person came into court he ought to be made acquainted with the case he had to meet. But by this Bill the lady might come into court and employ counsel without being previously bound to say what was her case; but she might take whatever course she pleased, and, by a subsequent clause, she might have her costs allowed her. These were among a few of the anomalies of the Bill. If they were to admit the principle of the Bill—namely, that adultery should be treated as a criminal offence, subject to a fine, and that damages to the plaintiff should be abolished—then the Legislature must go further, and treat of the question of seduction also, and must deprive the relatives of the person seduced of the right of obtaining any damages. Was the House prepared to adopt that course? It might be said that no pecuniary damages could be adequate to the loss of the society and affections of a wife who had been seduced, but it might with equal truth be said that no damages could compensate a man for the loss of his wife by means of a railway accident, or for the loss of a leg, or of an arm. But was it to be said that, therefore, no compensation was to be given in such cases? That principle would have the immediate effect of abolishing every action allowed by that most beneficial Act which was introduced by Lord Campbell, and a man who had lost a wife or children by a railway accident would have no right of action against the railway company for damages on the ground that no damages could be adequate to the injury sustained. That was, however, in his opinion, no reason why damages ought not to be given. The effect of this Bill, shortly stated, was, that it endeavoured to make adultery a misdemeanor by a side wind, and mixed up a civil and criminal procedure in one enactment. It contained these and other anomalies which appeared to him incapable of being rectified by a Committee, and, under these circumstances, he should move that the Bill be read a second time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."

MR. CRAUFURD

said, he could not refrain from expressing his surprise at hearing a professed law reformer utter such sentiments as his hon. and learned Friend had just addressed to the House. The hon. and learned Gentleman seemed to object to any reform which introduced an innovation into the law; he objected to one of the provisions of the Bill on the ground that it was quite new. Undoubtedly, the Bill did introduce a principle that was new, but he (Mr. Craufurd) could not understand that to be a sound reason for objecting to it, if the principle were a good one. The force, however, of all the objections urged by his hon. and learned Friend applied to the details of the Bill rather than to the principle. With regard to the objection which was urged, that if the Bill passed the plaintiff would obtain nothing at all, his hon. and learned Friend seemed to forget that it was only by an action at law that the party could obtain a divorce. The object of the Bill was to enable a man to obtain relief by divorce, and at the same time to do away with that objectionable principle in our jurisprudence—that a man might get money as a compensation for the loss of his wife's honour. If he (Mr. Craufurd) had any fault to find with the Bill, it was that it did not go far enough. It did not go to prevent that tripartite procedure which was at present required in order that a man might obtain a divorce. He agreed with some judicious observations recently expressed by Mr. Justice Maule, in which that learned Judge said that a large proportion of the offences of bigamy arose from the present expensive mode of obtaining a divorce. The Legislature ought to remove the difficulties that at present existed, and it was on that ground that he could have wished this Bill had gone further, and had enabled the Judge, when he was satisfied that the case was a bonâ fide one, to pronounce a divorce at once, instead of the party being required first to obtain damages at common law, then have to go to the Ecclesiastical Court, and finally to go to the House of Lords, before a divorce could be obtained. That was a state of things which cried loudly for reform.

MR. WHITESIDE

said, he considered the remarks of the hon. and learned Gentleman in reference to the hon. and learned Member who had moved the Amendment were not called for. The course which that hon. and learned Gentleman had taken proved him to be a sincere and earnest legal reformer, for his object was that every Bill which was introduced into Parliament purporting to amend the law should be intelligible. Now, the present Bill proposed things which were wholly impracticable. Parties were required to go to trial for no good purpose, and the jury were deprived of their constitutional right of assessing damages. The Bill was inconsistent. It made the remedy neither a criminal nor a civil proceeding, but one which it was impossible to act upon.

MR. DIGBY SEYMOUR

said, he agreed with his hon. and learned Friend (Mr. Craufurd) in the expression of surprise he had uttered with regard to the course taken by the hon. and learned Member for Plymouth (Mr. Collier). He should have expected that hon. Gentleman, as a sincere reformer of the law, to tender his thanks to the hon. Member for Dundalk (Mr. Bowyer) for having introduced this measure. The first objection was, that the Bill took away the common law remedy which the plaintiff had by depriving him of damages, and that, practically, the Bill was one for the encouragement of criminal conversation, but it appeared to him that to enforce a severe fine in the place of giving damages to the individual was to remove a great blot from our law. It was a monstrous thing that a man should be encouraged to seek large damages by parading before the world the shame and disgrace of his wife. The present Bill would prevent unprincipled men from resorting to such a mode of obtaining money, while it would afford to the really honourable and injured party a means of showing to the world that what he sought was, not damages, but a divorce. With regard to several of the objections urged by the hon. and learned Gentleman, they were rather of a special pleading character, and fitter to be considered in Committee than to be discussed on the second reading of the Bill.

MR. PHINN

said, that without wishing it to be supposed that he was not a law reformer, he felt bound to express his dissent from the Bill. The existing system was marked by anomalies and imperfections, but the Bill would increase them tenfold. The measure applied to only one portion of a great subject, which had been attentively investigated by Commissioners, who recommended that it should be dealt with in a comprehensive manner. The Bill touched only the surface of the question. It would prevent a man coming into a court of law to seek compensation for the injury sustained by the seduction of his wife; but in some cases this would work injustice. Suppose a man married to a woman who had 1,000l. a year for her own use. The money was applied to the maintenance of the family. A man seduced the wife; she applied the 1,000l. a year to the support of the paramour, and the injured husband could not obtain a farthing in the way of compensation. The mixture of civil and criminal procedure was also a very objectionable feature of the Bill. In the event of a man being unable to pay the fine which the court might impose, was he to remain in prison for life? The Commissioners had proposed that a separate tribunal should be established for the trial of all questions of divorce, and that to this court all the matrimonial questions at present decided in the Ecclesiastical Courts should be transferred. They also recommended that the jurisdiction of the new tribunal should be of a mixed character, partaking of common law, equity, and ecclesiastical law. The scheme of reform thus sketched out by the Commissioners was of a comprehensive and important character, but the present Bill dealt with only an isolated portion of the case, and that in an immature and imperfect manner. He would therefore recommend the hon. Member for Dundalk to withdraw his Bill and reserve his views upon the matter until the whole question came before the House.

MR. J. D. FITZGERALD

said, he thought the Bill ought to be read a second time, and either referred to a Committee of the whole House, or sent to a Select Committee, where the various objections which had been advanced might be removed. He considered, in spite of what had been said, that it was a strong argument in favour of the Bill, that under its provisions the only inducement which the husband would have to bring an action would be to punish the offender. He understood that the object of allowing the wife to be heard was, that she might not be sacrificed to any collusion between the husband and the alleged paramour, but that she might have the opportunity, which was now denied her, of defending her own charrcter.

THE ATTORNEY GENERAL

said, he agreed that the whole subject relating to the redress husbands were entitled to, when their domestic honour and happiness were assailed, did require mature consideration; and it was also a matter for mature consideration whether some greater redress than the law now gave should not be afforded to women who were seduced. He could well understand that a husband should not be allowed to derive a pecuniary profit from his wife's dishonour; still it would be a monstrous hardship to say that, under no circumstances should he be entitled to pecuniary damages for the injury inflicted upon him by the seduction of his wife. Take the case of a wife who had a separate income, secured upon her own property, upon which the husband or the children were dependent: it would be monstrous to say that the husband should not only lose his wife, but that she might transfer the whole of the fortune which she brought him to her paramour, and the husband have no remedy. [Mr. BOWYER: My Bill would not affect a case of that kind.] As it was now framed, it undoubtedly would—it deprived the husband altogether of the power of obtaining judgment in an action for damages. He thought, until they altered the system as to the law of divorce—while they left the husband only a most expensive remedy, which, unless he could afford to spend 2,000l. or 3,000l., he could not command—they ought not to take away from him his right of pecuniary compensation; but if they gave him a cheap and simple remedy in the way of obtaining a divorce, then they would be free to consider whether the right to pecuniary compensation should not be abolished. These were reasons why he thought they should deal with the subject as a whole. If the House should consider that as against the seducer the remedy, instead of being by a civil action for pecuniary compensation, should be a criminal prosecution—that he could understand. In some countries that was the only remedy, while in others there were two modes of proceeding against the paramour—the one, for pecuniary damages for the injury done to the husband; the other, criminally, for the crime committed against society. But if it were said that criminal conversation ought to be no longer in this country a matter for civil action, but for criminal proceeding, if that was the object of the hon. Member, why did he not so provide in his Bill? Instead of doing this he introduced an anomalous system, in which he mixed up the civil and the criminal proceeding together, requiring that there should be a judgment obtained on a civil proceeding to be undertaken by the injured party, and that the Judge should inflict a fine as for a criminal offence. This was a change from the whole system of our legal procedure, in which no such thing as a criminal action was known, and would create complete confusion. He could not agree that they ought to send this Bill to a Committee and try to make something of it there; it was a bad system of legislating to introduce measures defective and impracticable in all their provisions in order that they might be made something of in Committee. With regard to this Bill it was objectionable as not being sufficiently comprehensive; as referring only to one part of a great subject which ought to be dealt with as a whole, as introducing a great anomaly into our legal system, and as being wholly impracticable in its details. The matter was one which had been referred to a Commission, it was under the consideration of the legal authorities, and ere long legislation must take place upon it; but to pass such a measure as this would rather retard than further that object. This Bill, was neither one thing nor the other; it neither made adultery a criminal offence nor left it a civil one. He should, therefore, oppose its being read a second time.

MR. M. CHAMBERS

said, he was of opinion that there were cases in which a husband ought to obtain pecuniary compensation for the seduction of his wife, especially those cases in which he thereby sustained a pecuniary loss. This Bill, as it stood, would take away the right of the husband to bring any action for the recovery of pecuniary compensation for any matter arising out of the criminal conversation with his wife, and would therefore, in such cases, inflict an injustice. In cases of collusion with the husband, it was right that the adulterer should be fined, though not that compensation should be given to the husband, and he therefore thought that a power on the part of the Judge of imposing a fine upon the defendant in cases where, on account of the husband's collusion, the jury had given but small damages, would be wholesome and useful. The provision for the representation of the wife at the trial of the action was also, in his opinion, useful and salutary. As the Bill had many faults, he recommended to the hon. Gentleman who had introduced it that he should withdraw it, and frame another that should be more practicable in its machinery.

MR. BOWYER,

in reply said, that his arguments in support of the Bill had not been at all affected by what had been said against it. He did not see how this Bill could, as it had been alleged it would, afford encouragement to adultery, when under its provisions the adulterer, who now frequently escaped with the payment of a farthing damages, would always be subjected to a heavy fine. Every hon. Gentleman who had spoken on this question admitted the evils of the existing system, but, as was the usual practice, they all found fault with the way in which those evils were intended to be remedied. In the preparation of this Bill he had taken what he believed to be a middle course, a course which met the existing evils, and did not do more. The principle of his Bill had been admitted on both sides of the House. With respect to one of the objections urged against it, he would say that where a man suffered any special injury by the adultery of his wife he ought to have his action for the recovery of damages; but what he contended was, that the mere fact of adultery ought to be dealt with as an offence against society, and ought not to be made a question of pecuniary emolument. He therefore asked the House to affirm the principle of the Bill by reading it a second time, and reserving for discussion in Committee all objections taken to the details on both sides of the House.

Question put, "That the word 'now' stand part of the question."

The House divided:—Ayes 49; Noes 121: Majority 72.

Words added; Main Question, as amended, put, and agreed to; Bill put of for six months.